POSITIVE SOFTWARE PRODUCT LICENSE
THIS PRODUCT CONTAINS CERTAIN COMPUTER PROGRAMS AND OTHER PROPRIETARY MATERIAL, THE USE OF WHICH IS SUBJECT TO THE TERMS AND CONDITIONS OF POSITIVE SOFTWARE COMPANY'S END-USER SOFTWARE LICENSE AGREEMENT. PRESSING THE "ACCEPT" KEY ENABLING ACCESS TO THE SOFTWARE OR LOADING THE SOFTWARE ONTO YOUR COMPUTER AND ENTERING A REGISTRATION KEY, CONSTITUTES YOUR ASSENT TO AND ACCEPTANCE OF THIS END USER SOFTWARE LICENSE AGREEMENT.
IF YOU DO NOT AGREE WITH ALL THE TERMS, YOU MUST RETURN THIS PRODUCT, ALL MANUALS AND DOCUMENTATION, AND PROOF OF PAYMENT, TO THE PLACE YOU OBTAINED THEM FOR A FULL REFUND WITHIN 30 DAYS OF FIRST ACQUIRING THIS PRODUCT. IF YOU HAVE ORDERED THIS PRODUCT, ACCEPTANCE IS EXPRESSLY CONDITIONAL ON YOUR ASSENT TO THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.NO REFUND WILL BE ISSUED UPON PERMANENT REGISTRATION OF ANY POSITIVE SOFTWARE PRODUCT.
END USER SOFTWARE LICENSE AGREEMENT TERMS AND CONDITIONS
This is an agreement between you (Licensee) and POSitive Software Company (hereinafter "POSitive"), under license from POSitive Software Company.
OWNERSHIP. The POSitive software product ("Software"), any accompanying printed materials and all copies of the Software and printed materials, are owned by POSitive and its licensors and are protected by copyright, trademark and trade secret laws and international treaty provisions. This Software is licensed and not sold.
GRANT OF LICENSE. This agreement permits the use of one copy of the Software, which is licensed as a single product, in accordance with the accompanying documentation. The Software is "in use" on a single computer when it is loaded into the temporary memory (i.e., RAM) or installed into the permanent memory (e.g., hard disk or other storage device) of that computer.
LICENSE RESTRICTIONS. You may not make any unauthorized copies of the Software, except that you may either make one copy of the Software solely for backup or archival purposes or transfer the Software to a single hard disk provided you keep the original solely for backup or archival purposes. You may not permit other individuals to use the software except under the terms listed above. You may not modify, rent, lease, sub-license or use the Software for service bureau purposes. You may not reverse engineer, decompile or disassemble the Software, except to the extent expressly permitted by applicable law. This license is non- transferrable. Once the software is registered and unlocked, the software may not be returned, transferred, or the purchase price refunded for any reason.
NOTICES. You must not remove any product identification, copyright or other notices from the Software, and must reproduce and include the copyright notice and any other notices that appear on the original Software ("Notices") on any copies and on any products created using the Software and any media therefore. All right, title, interest to and ownership of the Software, any copies or portions contained in any products created using the Software, and all intellectual property rights related thereto are and at all times shall remain with POSitive and its licensors. The names "POSitive Retail Manager", "POSitive For Retail”, “POSitive For Business", "POSitive Green Enterprise Management", "POSitive For Restaurant Equipment" and "POSitive For Windows" (with or without POSitive's logo design) and POSitive's logo ("Marks") are herein referred to as Software, and are owned by POSitive. The use of the Software pursuant to this Agreement does not confer any right to you to use the Marks except to reproduce the Notices as required by this Agreement and in such a manner that shall avoid any confusion with regard to the ownership of the Marks and the Software.
UPGRADES, SUPPORT. From time to time POSitive may release new versions of the Software which contain improvements. If you purchase an upgrade, unless such upgrade is provided pursuant to a separate written agreement with POSitive, this agreement will be extended to include both the original version of the Software and the new version. Support for the Software will be provided in accordance with POSitive's then current support terms and policies, which may require a separate written support agreement and payment of additional fees.
LOCATION LICENSE. The Software is licensed for a specific location. Registration codes are released for one location only. If your location changes, a fee will apply to generate new registration codes for the new location.
TERM. This agreement will remain in effect unless it is terminated due to a breach of its terms. Upon termination you will cease all use of the Software and destroy, or return to POSitive, all printed materials and copies of the Software.
LIMITED WARRANTY. POSitive warrants that the Software will perform substantially in accordance with the accompanying printed materials for a period of thirty (30) days from the date of receipt. This warranty covers only problems reported to POSitive during the warranty period.
CUSTOMER REMEDIES. POSITIVE'S AND THEIR LICENSORS' AND SUPPLIERS' ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER ANY WARRANTY OR LEGAL THEORY SHALL BE LIMITED TO REPLACEMENT OF THE SOFTWARE OR RETURN OF THE PRICE PAID. NO OTHER WARRANTIES. POSITIVE DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, WITH RESPECT TO THE SOFTWARE AND THE ACCOMPANYING PRINTED MATERIALS. EXCEPT FOR THE FOREGOING, THE SOFTWARE IS PROVIDED "AS IS."
LIMITATION OF LIABILITY. IN NO EVENT SHALL POSITIVE OR THEIR LICENSORS OR SUPPLIERS BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR THEORY FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OR INACCURACY OF INFORMATION), ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF POSITIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL POSITIVE'S LIABILITY EXCEED THE AMOUNT PAID BY YOU FOR THE SOFTWARE. Because some jurisdictions do not allow the exclusion or limitation of liability of consequential or incidental damages, the above limitation may not apply to you.
HIGH RISK ACTIVITIES. POSitive Software products are not fault-tolerant and is not designed or intended for use in hazardous environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, or any other application in which the failure of the Software could lead directly to death, personal injury, or severe physical or property damage (collectively, "High Risk Activities"). POSitive Software Company expressly disclaims any express or implied warranty of fitness for High Risk Activities.
EXPORT LAW ASSURANCES. You may not use or otherwise export or re-export POSitive software products except as authorized by United States law and the laws of the jurisdiction in which the POSitive Software product was obtained. In particular, but without limitation, the Software may not be exported or re-exported into (or to a national or resident of) any U.S. embargoed country or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders. By using the POSitive software product, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.
DISPUTE RESOLUTION/ARBITRATION. Any controversy or claim between Customer and POSitive arising out of or relating to: (a) these Terms, or the breach thereof, or (b) Customer’s access to or use of the Software, or (c) any alleged violation of any federal or state or local law, statute or ordinance (each such controversy or claim, a “Claim”), shall be resolved exclusively by a binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, with the arbitration to be held in the city of Richland, Washington. Customer hereby consent to the exclusive jurisdiction of the state and federal courts located in Benton County, Washington to enforce these Terms. However, judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Claims shall be heard by a single arbitrator. Arbitrations shall be held in Richland, Washington, but the parties may choose for themselves whether to appear in person, by phone, or through the submission of documents. The arbitration shall be governed by the Federal Arbitration Act and by the internal laws of the State of Washington, without regard to conflicts of laws principles. The prevailing party shall be entitled to an award of reasonable attorneys’ fees.
In arbitration, the parties give up their right to have their Claim decided by a judge or jury, and their Claim is instead decided by an arbitrator. Discovery rights and appellate rights in arbitration are more limited than in court. The arbitrator shall issue a reasoned award in writing, including all findings of fact and law upon which the award was made.
CUSTOMER AND POSITIVE AGREE THAT EACH MAY BRING OR PARTICIPATE IN CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, CONSOLIDATED OR REPRESENTATIVE PROCEEDING. UNLESS BOTH CUSTOMER AND THE COMPANY AGREE OTHERWISE IN WRITING, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. IF A CLAIM IMPLICATES THIS SECTION, AND IF THIS SECTION IS FOUND TO BE INVALID, UNENFORCEABLE OR ILLEGAL BY A COURT OF COMPETENT JURISDICTION, THEN SUCH CLAIM MUST BE ADJUDICATED BY A COURT AND NOT BY AN ARBITRATOR.
NOTWITHSTANDING THE FOREGOING, IF ANY CLAIM IS NOT SUBJECT TO ARBITRATION, CUSTOMER AGREES TO SUBMIT AND CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE STATE AND FEDERAL COURTS LOCATED WITHIN BENTON COUNTY, WASHINGTON, WHICH IS THE PLACE OF PERFORMANCE OF THESE TERMS.
MISCELLANEOUS. This agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes any other agreement relating to the Software. This agreement shall be construed pursuant to the laws of the State of Washington without regard to the conflict of law provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods. To the extent that EC law is applicable, the restriction on reverse engineering is limited to prohibit such activity to the maximum extent without violating the EC Directive on the legal protection of computer programs. Licensee shall comply with all applicable export laws and restrictions and regulations of the U.S. Department of Commerce or other United States or foreign agency or authority, and not to export, or allow the export or re-export of the SOFTWARE, or any direct product thereof, in violation of any such restrictions, laws or regulations.
POSitive reserves the right to amend this license from time to time by posting such amended document on its website, which shall constitute notice to Licensee of the amended document. Licensee’s continued use of the POSitive product shall constitute acceptance of the amended license.
Copyright (c) 2020 POSitive Software Company, All Rights Reserved. If Licensee is a unit or agency of the government, or acquiring the Software with government funds, the software and documentation are provided subject to POSitive's standard commercial license; provided, however, that any contracts with non-defense agencies subject to the FAR, the Government shall have the rights set forth in subparagraph (c) of FAR 52.227-19, "Commercial Computer Software-Restricted Rights," as applicable.
POSitive Software Company
723 The Parkway
Richland, WA 99352