CHRISTIAN JAMES, INC.
SOFTWARE LICENSE AGREEMENT
CHRISTIAN JAMES, INC. (“CJI”) PROVIDES ACCESS TO ITS SOFTWARE SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS SOFTWARE LICENSE AGREEMENT (THE “AGREEMENT”). PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY. AS USED IN THIS AGREEMENT, “YOU” AND”YOUR” REFER TO THE PERSON AND OR ENTITY USING THE SOFTWARE.BY CLICKING THE “AGREE” BUTTON, OR BY USING THIS SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THIS SOFTWARE. NOT WITHSTANDING THE FOREGOING, USING THE SOFTWARE INDICATES YOUR ACCEPTANCE OF THESE LICENSE TERMS.
1. Authorized Use. CJI grants you a limited, personal, non-exclusive, non-transferable, revocable license (“License”) to install and use the Software for its business purposes only, in object code form. This License may not be sublicensed or commercially distributed or shared with any third party without the prior written consent of CJI. CJI reserves all rights not expressly granted in this Agreement.
2. Restrictions on Use of Software. Except as provided hereunder, you shall not: (I) copy, reproduce, display, distribute, transfer, time-share, rent, lend, loan, lease or sublicense any portion of the Software; (ii) translate, adapt, modify, alter, combine with other software, or prepare derivative works based in whole or in part on the Software; (iii) use the Software in a computer-based services business; (iv) transmit the Software over a network, by telephone, or electronically using any means; or (v) reverse engineer, decompile, disassemble or otherwise reduce the Software to a human-perceivable form without the express written permission of CJI.
3. Archived Copies of Software. You may make one copy of the Software for archival purposes only to back up the use of the Software provided that the copy shall include CJI’s copyright and any other proprietary notices. All copies of the Software made by you is the exclusive property of CJI. You shall take reasonable measures to protect the secrecy of any archived copies of the Software.
4. Ownership of Software. You acknowledge and agree that the Software contains proprietary and copyright protected material and, in its human-perceivable form, contains trade secrets and other intellectual property rights exclusively owned by CJI. You agree it shall not directly or indirectly for any reason whatsoever disclose, provide, or otherwise make available, in whole or in part, the Software to any third-party; provided, however, You may disclose this information to the extent necessary to its employees and consultants on the condition said individuals are informed of the confidentiality of this information and agree to hold the same in confidence. You agree that CJI is and shall remain the sole and exclusive owner of all rights, title, and interest in and to the Software including any corrections, bug fixes, enhancements, updates, modifications including any patents, copyrights, trade secrets, and any other intellectual and industrial property rights related thereto. You shall not take any action inconsistent with such ownership. This Agreement does not grant you any rights to any patents, copyrights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses with respect to the Software. If You create any derivative works in violation of this Agreement, based in whole or in part on the Software, CJI shall be the lawful owner of all such derivative work(s) and any proceeds or profits derived there from. You agree to maintain the secrecy of the contents of the Software and implement adequate safeguards to prevent and protect the contents of the Software from unauthorized use or disclosure. This paragraph shall survive the termination of this Agreement.
5. Disclaimer of Warranties. CJI AND ITS AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, AND AFFILIATES PROVIDE THE SOFTWARE, DOCUMENTATION, AND INFORMATION “AS IS WITH ALL FAULTS” WITHOUT WARRANTY OF ANY KIND, AND CJI HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE WHETHER EXPRESS OR IMPLIED AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AND NONINFRINGEMENT. CJI DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE, THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL FUNCTION WITH OTHER SOFTWARE OR HARDWARE, OR WITHIN A SYSTEM. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CJI OR A CJI AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION MAY NOT APPLY.
6. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL CJI OR ITS AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, OR AFFILIATES BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES, WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOST TIME, LOST SAVINGS, LOSS OF DATA, DAMAGED DATA, INACCURATE DATA, FAILURE OF TELECOMMUNICATION SERVICES, LOST CONFIDENTIAL OR OTHER INFORMATION, OR FOR BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SOFTWARE OR CJI SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (TORT, CONTRACT OR OTHERWISE) AND EVEN IF CJI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY. IN NO EVENT SHALL CJI’S TOTAL LIABILITY FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF MONIES PAID FOR THIS LICENSE. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
7. Indemnification. You agree to indemnify, hold harmless and defend CJI, its agents, officers, directors, employees, successors, assigns, and affiliates, from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney’s fees, asserted by any person, arising out of or relating to the breach of this Agreement and or the unauthorized use of the Software.
8. Installation and Testing. You shall be responsible for the following: (i) installation of the software; (ii) installation of hardware components and necessary software and of assuring proper machine configurations; (iii) the establishment of adequate backup plans; and (iv) implementing sufficient recovery procedures and checkpoints to satisfy its own requirements for security and accuracy of input, as well as, system restart and recovery in the event of a malfunction. Any damage, defect, or failure of the Software due to your failure to abide by the conditions set forth in this Section 8 shall be the sole responsibility of you. CJI shall in no event be liable in any form for any damage, defect, or failure resulting from your failure to abide by the terms set forth in this Section 8. You also agree that Christian James is not a telephone marketer and that the sale governed by this Agreement is not and shall not be construed as telephone marketing. You are responsible for acquiring hardware from http://www.paygopos.com/pos-hardware. If you are outside of the United States, you may be required to get hardware elsewhere due to shipping restrictions. You agree that you are responsible for that process. CJI is in no way responsible for any hardware installation or troubleshooting.
9. Representations. You acknowledge that you may be required to provide certain data information to CJI for use with the Software. You hereby represent and warrant that you have the right to provide such information to CJI and such information is true and accurate. Any damage, defect or failure of the Software due in whole or in part to any inaccuracy of the information provided to CJI shall be your sole responsibility. You also acknowledge and agree that any communication or action taken by an employee, partner, or consultant of your hiring shall be considered legitimate by CJI. You also represent and warrant that such an individual or individuals is authorized by you to conduct said communication and that such information that they provide are true and accurate. You also agree to ensure that any information or communication given to such an individual or individuals by CJI will be then communicated to you. CJI is not responsible for any miscommunication stemming from such an individual.
10. PayGo Software Maintenance and Support Services. With purchase of a PayGo product, you will be enrolled in one of the following CJI services:
10a. PayGo Customers will be enrolled in an annual or monthly WeCare Support and PayGo Maintenance plan. Such maintenance and support services shall be subject to applicable fees and shall be billed to a valid credit card on a yearly or monthly basis. Such services shall begin the day the software is purchased. PayGo Users must be a member of both the WeCare Support Club and the PayGo Maintenance Club in order to receive services and to use the PayGo software. Once these plans are entered into and payment has been received, there are no refunds that will be made. The Support Plan and PayGo Maintenance Plan run for one year or one month. At the end of that billing period, you will automatically be renewed for an additional year or month and payment will be allocated to the credit card that is set up for auto-billing on your account. It is your responsibility to keep track of the renewal date. You must provide CJI with a valid e-mail address that will be used for all communication and it is your responsibility provide CJI a valid e-mail for billing purposes. All WeCare and Maintenance Plans are non-refundable. You further agree that you will not initiate a chargeback attempt for any charge that is made for any purchases or payments, including the WeCare Support Club and PayGo Maintenance Plans.
10b. PayGo Unlocked users will have the ability, at CJI’s discretion, to purchase support advisement hours for assistance. This excludes any software updates or developmental changes. CJI requires that all PayGo Unlocked clients purchase their own version of FileMaker to run the PayGo Unlocked software.
11. Termination. CJI may, in its sole discretion, immediately terminate this Agreement if (i) you breach any provision of this Agreement and fail to cure such breach within thirty (30) days of receipt of written notice from CJI; or (ii) if you become insolvent, make a general assignment for the benefit of creditors, files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, or becomes subject to any proceeding under any bankruptcy or insolvency law, whether domestic or foreign, or has wound up or liquidated, voluntarily or otherwise. Upon acceptance of this agreement, you agree that no return or refund of the Software or any PayGo services will be permitted by CJI. You also agree that CJI is not and shall not be deemed a “phone solicitor” and that the purchase of the Software shall not be classified as phone solicitation. You further agree that the purchase of the Software does not include a right to cancellation and refund.
12. Return of Software. Upon termination of this Agreement for any reason at any time or upon request by CJI, You shall return any and all originals, copies, and reproductions of all Software in its custody, possession or control to CJI. You further agree to remove the Software from all computers in its possession and grants CJI access to its business premises to ensure the provisions of this Section 12 have been satisfied.
13. Export Law Assurances. You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction where the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (1) into (or to a national or resident of) any U.S. Embargoed countries (currently Cuba, Iran, Libya, North Korea, Sudan and Syria) or (2) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, 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 or in any such position contemplated by this section not able to receive the Software.
14. Government End Users. If you are acquiring the Software on behalf of any unit or agency of the United States Government, it is provided to the Government only with restricted rights and limited rights. Use, duplication, or disclosure by the Government is subject to restrictions set forth in FAR Sections 52-227-14 and 52-227-19 or DFARS Section 52.227-7013(C)(1)(ii), as applicable. The Software and Documentation are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §1 2.21 2 or 48 C.F.R. §227.7202, as applicable.
15. Equitable Remedies and Enforcement. You acknowledge and agree that breach of any of the obligations under this Agreement shall cause irreparable injury and shall entitle CJI to equitable relief or remedy. The pursuit or securing of any such equitable relief shall not prohibit or limit CJI to seek or obtain any other remedy provided under this Agreement or by law. If any or all of the above covenants or agreements are held to be unenforceable because of the scope or duration of such covenant or agreement or the area covered thereby, you agree that the court making such determination shall have the power to reduce the scope, duration and area of such covenant or agreement to the extent that allows the maximum scope, duration and area permitted by applicable law. The covenants, agreements and remedies provided herein are in addition to, and are not to be construed as a replacement for or limited by, the rights and remedies otherwise available to CJI including, but not limited to, those rights and remedies contained in the Uniform Trade Secrets Act, or its state counterparts.
16. Notice. Any and all notices called for under this Agreement shall be in writing, and presented personally or by certified mail, postage prepaid, or recognized overnight delivery services to you or CJI.
17. Governing Law; Jurisdiction; Venue; Attorney Fees. This Agreement shall be construed and enforced in accordance with the laws of the State of Minnesota. Should it be necessary to institute an action to enforce any of the terms contained in this Agreement, you agree said action shall and must be instituted in Wright County District Court, State of Minnesota. You hereby waive any and all defenses based on lack of personal jurisdiction or forum non convenience. Should you breach any of the terms of this Agreement, you hereby agree to pay the reasonable attorney’s fees incurred by CJI in enforcing the terms of this Agreement. The attorney’s fees shall be paid by you irrespective of any damages recovered or any relief afforded to CJI.
18. Entire Agreement. This Agreement states the Parties’ entire agreement and understanding of the subject hereof. This Agreement supersedes all prior understanding and agreements. Any prior agreement or understandings between the Parties is null and void.
19. Modification. This Agreement may be modified by CJI at any time.
20. Severability. If any provision or clause of this Agreement as applied to either Party or to any circumstances, it shall be adjudged by a court of competent jurisdiction to be invalid or unenforceable, said adjudication shall in no way affect any other provision of this Agreement, the application of such provision in any other circumstances, or the validity or enforceability of this Agreement.
21. Assignment. You may not assign its rights or delegate its duties under this Agreement without CJI’s prior written consent. Any attempted assignment or delegation by you without the required consent will be void. Notwithstanding the foregoing, CJI may assign this Agreement including, without limitation to an affiliate, subsidiary, third party, or successor without your prior consent.
22. Paragraph Headings. Paragraph headings used throughout this Agreement are for convenience only and shall not be used to construe meaning or intent.
23. Survival. The obligations under Sections 1, 2, 4, 5, 6, 7, 8, 9, 10, 12, and 15 shall survive termination of this Agreement for any reason.
24. Customized Software. This software is customized and customizable and is specific to your business. Your software may contain unique configurations, features or modifications. Because of these customizations, any requirements, standards, or regulations are your responsibility to govern. This includes following compliance guidelines required by third party organizations that require any compliance. This agreement works in conjunction with any other signed software agreements or contracts regarding PayGo and its products and or services including PayGo Unlocked, PayGo SP, PayGo Solo, and hosting agreements.
25. Go Getter Program. If you are a part of our referral program or where a referral to our company, your name and company name could be entered into our Go Getter program database. Your information may be listed in the Go Getter Program visible to those looking into the program. Your information will be kept confidential to the best of our ability.
26. PCI Compliance. PayGo Version 5 and higher integrate with the PCI compliant Paygistix merchant product provided by Payment Logistics. No credit card information is entered or stored in PayGo. PayGo SP, PayGo Solo, and PayGo Unlocked are highly customizable by you and therefore you are responsible for meeting all PCI compliance standards and regulations. Because the software can be customized, CJI is not be responsible for PCI compliance regulations. You are responsible for seeking PCI compliance from your merchant provider.
27. Satisfaction Policy for Products and Services. By accepting and purchasing Software and
accompanying services, Licensee agrees that delivery of products and services are acceptable and that the transaction has been satisfactory. Licensee agrees and accepts that there are no refunds or returns on any products or services and that the Licensee has had ample time to review the product before the purchase through the demo. If Licensee has purchased with a credit card or wire transfer, Licensee agrees that it will not initiate a charge-back attempt with their bank or credit card company and that all purchases are final. Any chargeback attempt will result in an additional $299 fee on your account. This document is in effect at the time of download/installation of software or purchase of product, whichever occurs first.