Terms and Conditions
End User License Agreement
If You are entering into this Agreement on behalf of a company or other legal entity, You represent that You are duly authorized to represent such company or legal entity and enter into this Agreement on behalf of such company or legal entity. By Your acceptance, a binding contract is thereby formed between Sellekt and such company or legal entity in accordance with the terms and conditions of this Agreement.
If You are entering into this Agreement on behalf of a company or other legal entity, the terms “You” and “Your” in this Agreement means such company or other legal entity. If You are entering this Agreement on Your own behalf, You agree that You are personally bound by this Agreement and in such case, the terms “You” and “Your” in this Agreement mean You. “We” and “Our” means Sellekt.
If the company You represent, or You do not agree to this Agreement, then You do not have the rights to use the Licensed Application. By accepting this Agreement and using the Licensed Application You agree to the following terms:
- Scope of License. This license granted to You for the Licensed Application by Sellekt is limited to a non-exclusive, non-transferable, non-sublicensable, limited license to download, install and use this application on any devices used or owned by You to be used with your information. You may not rent, lease, lend, sell, redistribute, or sublicense the Licensed Application. You may not copy (except as expressly permitted by this License), decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Licensed Application). Any attempt to do so is a violation of the rights of Sellekt. The terms of this Agreement will govern any upgrades provided by Sellekt that replace and/or supplement the original Licensed Application, unless such upgrade is accompanied by a separate license agreement in which case the terms of that license agreement will govern.
- Term of Agreement This Agreement is entered into pursuant to a subscription (a “Subscription”) for Sellekt’s platform Service Pair or related products or services (the “Service”) or a free trial (a “Free Trial”) of the Service by You, or by another person that has requested that YOU have access to the Licensed Application (You or such other person, the “Subscriber”). The terms of this Agreement commence on the date You accept it by installing or using the Licensed Application and continues until the Subscription or Free Trial, as applicable, has expired or been terminated by Sellekt. Unless explicitly stated otherwise, any new features that enhance or augment the Licensed Application shall be subject to this Agreement.
- Termination and Expiration
- You agree that We may downgrade, terminate or suspend Your access to the Licensed Application without prior notice and without liability if such termination or suspension is based on (a) Our determination, in Our sole discretion, that You have violated any of the terms and conditions of this Agreement, (b) as a result of the acts or omissions of the Subscriber or of other users of the Service pursuant to the Subscription or Free Trial (“Other Users”), pursuant to this Agreement, or (c) thirty days after YOU have been put on notice by Sellekt that this License Application will be subject to a subscription fee and YOU fail to accept the payment term in writing.
- Notwithstanding anything else in this Agreement, the following sections shall survive any termination or expiration of this Agreement: Sections 4.b-4.e and Sections 5-12.
- Software Usage Rights
- You agree that You will use the Licensed Application and the Service in compliance with all applicable local, state, national, and international laws, rules and regulations.
- You shall: (i) at all times use the Licensed Application in accordance and in compliance with this Agreement; (ii) prevent unauthorized access to, or use of, the Licensed Application or the Service, and notify Sellekt promptly of any such unauthorized use and, notwithstanding anything to the contrary in this Agreement, Sellekt shall have no liability for any losses, damages, claims, suits or other actions arising out of or in connection with such unauthorized or improper use of the Licensed Application or the Service by You, the Subscriber, or any other User; (iii) comply with all applicable laws; (iv) not cause any disturbances, outages or take any other actions that may adversely affect the Licensed Application or the Service; (v) be responsible for payment of any service fees, text messaging fees, and any other third party fees or expenses, associated or incurred in connection with, the access or use of the Licensed Application or the Service by You. You acknowledge that You are solely responsible for the content of any information that You make available through the Licensed Application and that Sellekt will not, except as otherwise expressly herein set forth, monitor Your ation to examine the content passing through it. Notwithstanding anything to the contrary in this Agreement, in no event shall Sellekt be liable to You, the Subscriber, any Other User, or any other third party for any failure on the part of You to fulfill Your responsibilities pursuant to this Section 4.b and Sellekt expressly disclaims any liability arising therefrom.
- You agree and acknowledge that You will be identified by a unique username and password (a “Login”). You will be responsible for all uses of Your Login, without limitation, any use by any unauthorized third parties. You must notify Sellekt immediately if You believe Your Login has been obtained, or may be accessed or used by, any unauthorized person or entity.
- You shall not, shall not agree to, shall not attempt to, and shall not authorize or encourage the Subscriber, any Other User, or any third party to:
- use the Licensed Application or the Service to upload, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, abusive, fraudulent, obscene, contains viruses, malware, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing or electronic email address information, time bombs or other harmful software, or is otherwise objectionable as determined by Sellekt in its sole discretion.
- use the Licensed Application or the Service to engage, directly or indirectly, in transmission of spam, chain letters, junk mail, or any other type of unsolicited solicitation.
- use the Licensed Application or the Service for any fraudulent or inappropriate purpose.
- attempt to decipher, decompile, hack, phish, SQL inject, delete, augment, alter, disassemble, reverse engineer, or otherwise interfere with any of the software comprising or in any way related to the Licensed Application or the Service.
- resell, duplicate, decompile, make derivative works of, reproduce or exploit any part of, or otherwise attempt to extract the source code or source data from, the Licensed Application or the Service without the express written permission of Sellekt.
- use any robot, spider, other automated device, or manual process to monitor or copy any content from the Licensed Application or the Service.
- rent, lease, distribute, license, assign, time share or resell the Licensed Application or the Service, or use the Licensed Application or the Service for developing a competitive solution (or contract with a third party to do so), or remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Licensed Application or the Service.
- publish any material that contains sexually related text, photographs or other content, or content that is defamatory, harassing, harmful, libelous, obscene, indecent, threatening, abusive, hateful or otherwise inappropriate, in each case, as determined by Sellekt in Sellekt’s sole discretion.
- use the Licensed Application or the Service in any application or situation where failure of the Licensed Application or the Service could lead to death or bodily injury of any person, or to physical or environmental damage.
- attempt to disable, disrupt, interfere with, or circumvent any security mechanisms used by the Licensed Application or the Service, or otherwise attempt to gain unauthorized access to any portion or feature of the Licensed Application or the Service.
- forge headers or otherwise manipulate identifiers in order to disguise Your, the Subscriber’s or any Other User’s identity, or the origin of any message or other communication that You, the Subscriber, or any Other User sends to Sellekt in connection with the Licensed Application or the Service, otherwise impersonate another person or entity, misrepresent Your, the Subscriber’s or any Other User’s affiliation with a person or entity, including (without limitation) Sellekt, federal, state or municipal government, or a political candidate, or create or use a false identity.
- make the Licensed Application or the Service available to users in excess of the number of users permitted by the Subscription or Free Trial, as applicable.
- collect, manually or through an automatic process, information about other users or other information relating to the Licensed Application or the Service.
- use any meta tags or any other hidden text utilizing Sellekt’s name, trademarks, or product names in any manner and in any place.
- advertise, offer to sell, or sell any goods or services.
- infringe any patent, trademark, trade secret, copyright, right of publicity or other right of any party, or violate any law or administrative rule.
- access or use the Licensed Application or the Service for purposes of monitoring the Licensed Application’s or the Service’s availability, performance or functionality, or for any other benchmarking or competitive purposes.
- use the Licensed Application or the Service to store or transmit any “protected health information,” as that term is defined in 45 C.F.R. 160.103.
- permit the Subscriber, any Other User, or any other third party to do any of the foregoing.
- In order to use the Licensed Application, You are required to have a compatible computer, iPad, mobile telephone or handheld device, internet access, and the necessary minimum specifications (“Software Requirements”). The Software Requirements are as follows: Apple iOS devices running iOS 7 or newer, and Android OS devices running Android OS 4.3 or newer; Language: English][Chad: This is only an example. Please review as appropriate to conform to the application’s actual software requirements if any. The version of the Licensed Application software may be upgraded from time to time to add support for new functions and services.
- SMS Alerts. If You receive SMS (text message) alerts as a component of the Service, Sellekt will not be responsible for any charges incurred by You, the Subscriber, or any Other User from any mobile service provider with respect to such SMS alerts.
- Intellectual Property Rights
- You acknowledge that Sellekt owns all right, title and interest in and to the Licensed Application and the Service, including without limitation all intellectual property rights, and such rights are protected by U.S. and international intellectual property laws. You agree that You will not copy, reproduce, alter, modify, or create derivative works from the Licensed Application or the Service and, to the extent You create any such derivative works, such derivative works shall be owned solely by Sellekt.
- Sellekt shall retain all right, title and interest in and to the Licensed Application and the Service, the documentation for the Licensed Application (“Documentation”), and all modifications and/or enhancements to the Licensed Application, regardless of the source of any idea for any such enhancement or modification and regardless of whether You have provided input or feedback regarding such modifications and/or enhancements. You acknowledge that Sellekt will retain all right, title and interest to transactional and performance data related to use of the Licensed Application and Service which Sellekt may collect, use and disclose for its business purposes (including software use optimization and product marketing).
- In furtherance and not in limitation of the foregoing:
- All materials constituting the Licensed Application and the Service, including without limitation, the Sellekt logo, design, text, graphics, information, data, images, audio, video, metadata, compilations, graphical user interfaces, other files, and the selection, arrangement and organization thereof are either owned by Sellekt or are the property of Sellekt’s suppliers or licensors. You may not use such materials without permission.
- All page headers, custom graphics, button icons and scripts are trademarks or trade dress of Sellekt. Any use by You of Sellekt’s trademarks and trade dress is for the sole benefit of Sellekt and all goodwill generated by such use will inure to Sellekt. If You refer to Sellekt’s trademarks or logos, You must include appropriate attribution to Sellekt. All other trademarks, trade names and the like that appear on the Licensed Application are the property of their respective owners. You may not use any of these trademarks, trade dress, or trade names without express permission.
- Warranties and Liability
- TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, SELLEKT HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE Licensed Application, SERVICE, and OTHER MATERIALS AND/OR SERVICES. SELLEKT DOES NOT WARRANT THAT OPERATION OF THE Licensed Application OR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR FREE FROM viruses, malware, Trojan horses, time bombs or other harmful software, AND NO INFORMATION OBTAINED BY YOU FROM SELLEKT OR THROUGH THE LICENSED APPLICATION OR SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
- In no event will Sellekt, its affiliates, officers, agents, or employees be liable for any indirect, consequential, special, punitive, or exemplary damages arising out of this Agreement or otherwise with respect to the Licensed Application or Service. The aggregate liability of Sellekt with respect to this Agreement and the Licensed Application, to the extent permitted under applicable law, is subject to the limitations set forth in the Master Agreement.
- If You, the Subscriber, or any Other User requests SMS or email alerts as a component of the Service, Sellekt shall have no liability with respect to any SMS-related or email-related errors or delays, or any deleted, missed, or late received SMS alerts or emails. YOU may update SMS and Email preferences by visiting the Notification Preferences section of YOUR user profile. YOU may also receive email and text push notifications with or without the website.
- Sellekt has no responsibility for the accuracy, integrity, quality, legality, reliability, appropriateness of and copyright permissions of any data provided by You (“Customer Data”) or for adopting procedures to identify and correct errors and omissions in Customer Data. Sellekt has no obligation to review Customer Data for accuracy. Sellekt has no responsibility to retain any Customer Data following termination of this Agreement. YOU warrant to Sellekt that Customer Data has been collected, processed and provided to Sellekt in accordance with applicable laws on the protection of data subjects with regard to the processing of personal data, and also including laws or regulations that will apply to the transfer of Customer Data by Sellekt to any of its affiliates, employees, contractors and business partners located anywhere in the world. You consent to Sellekt’s use of Customer Data, including consent for Sellekt to move Customer Data from one environment to another located anywhere in the world, as required to provide the Service, and that You will comply with the Data Protection Laws. The terms “personal data” and “process” shall have the meanings given to them in the applicable Data Protection Laws.
- Internal Breach. In the event of a security breach by You or any Other User, You will notify immediately the Subscriber of the breach, so that the Subscriber may notify Sellekt.
- Indemnification. You agree to hold harmless and indemnify Sellekt and its affiliates, officers, agents, and employees from and against any third party claim arising from or in any way related to Your use of the Service and the Licensed Application, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. You agree to hold Sellekt harmless for any inaccurate information or content which might be uploaded by the users of this platform. Sellekt has no obligation to monitor, vet or review the content uploaded by the users of this platform, nor does it have any obligation to confirm that its users are licensed or authorized to perform the scope of work they offer, it is Your obligation to confirm all of this information.
- Governing Law; Jurisdiction. THIS AGREEMENT IS MADE IN ACCORDANCE WITH AND IS GOVERNED AND CONSTRUED UNDER THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REFERENCE TO SUCH STATE’S CONFLICTS OF LAWS PRINCIPLES. IN NO EVENT MAY THIS AGREEMENT BE GOVERNED BY THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. Any legal action or proceeding relating to this Agreement, the Service, or the Licensed Application shall be instituted in a state court located in San Diego County, California or a federal court located in the Southern District of California and no other venue. You and Sellekt agree to submit to the exclusive jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding. Nothing in this Agreement limits either party’s ability to seek equitable relief.
- No Assignment. You many not, directly or indirectly, by operation of law or otherwise, assign any rights or obligations under this Agreement without Our prior written consent.
- No Partnership. The parties to this Agreement are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties to this Agreement.
- Notice. Except as otherwise provided in this Agreement, all notices to be provided by Sellekt to You under this Agreement may be delivered in writing (1) by nationally recognized overnight delivery service (“Courier”) or US mail to the contact mailing address provided by YOU; or (ii) electronic mail to the electronic mail address provided by You. Except as otherwise provided herein, You must give notice to us in writing by Courier or US mail to the following address: Sellekt, Inc., P.O. Box 1451, Carlsbad, CA 92018, Attn: Legal Dept. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.
- Merger and Amendments. This Agreement encompasses the entire agreement between You and Sellekt with respect to the subject matter hereof and supersedes all prior representations, agreements and understandings, written or oral.
- Waiver. The failure of Sellekt to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
- Force Majeure. Sellekt will not be liable for failing to perform under this Agreement by the occurrence of any event beyond its reasonable control, including, without limitation, a labor disturbance, an Internet outage or interruption of service, a communications outage, failure by a service provider to Sellekt to perform, fire, terrorism, natural disaster or war.
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