License Agreement
SharpeSoft Estimator
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DEFINITIONS
In these terms and conditions:
“Sharpe” refers to the licensor, Sharpe Software, Inc., d/b/a SharpeSoft, Inc., a California Corporation headquartered in Yuba City, California. “Buyer” refers to the licensee, an entity (person, organization, or otherwise) willfully entering into an agreement, written or verbal, with Sharpe. “License Agreement” refers to this End User License Agreement, a legal contract between Sharpe and Buyer specifying the terms and conditions for use of Software. "Software" refers to any computer software and related documentation available from Sharpe – this includes computer software owned by Sharpe, third party computer software that has been provided for use in association with Sharpe's software, and computer software that has been custom designed, developed, or modified for Buyer. “Order” refers to any written or verbal order to purchase software licenses, goods, or services from Sharpe. "Goods" refers to all hardware and other tangible products, but does not include Software or the media on which Software is stored. "Services" refers to any services provided by Sharpe to Buyer. Services include custom engineering and development, consulting, support, and training services. "Products" refers to any or all Software, Goods, and Services. “Custom Product” refers to any Software, Goods, or Services specifically designed, developed, and/or modified for the Buyer, including, but not limited to, electronic data. “Database” refers to any electronic database provided by Sharpe to the buyer for explicit use with Sharpe Software, including, but not limited to, Custom Product databases created from the Buyer’s raw data.
GRANT OF LICENSE
Sharpe hereby grants me a non-exclusive, non-transferable license to use this product with only the number of licenses purchased.
PROPRIETARY INFORMATION, COPYRIGHTS, AND TRADEMARKS
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I understand that the Sharpe Logo, product names, software, manuals, documentation, and other materials are patented, copyrighted, trademarked, and/or owned by Sharpe as trade secrets or proprietary information. I agree not to remove any product identification or notices of such proprietary restrictions from Sharpe products. I also agree that no reverse-engineering, de-
compilation, disassembling, or otherwise reducing the software to a human-perceivable form will be performed on the product, either by myself or any other persons who may or may not be associated with or hired by this company.
COPYING
I agree that I will only make copies for use as archival back-up copies, and only if such copies are for my personal use. Any copying of materials or documentation is prohibited.
SECURITY KEYS
I understand that the security key(s) issued with my software do in fact constitute the license agreement. One key has been issued for all concurrent-user licenses purchased. I understand that the program will not run without the key in place. Furthermore, I understand that I am responsible to safeguard the security key, and if any one of them are lost or stolen, they are replaceable only at the full purchase price of the licenses it contained (at the time of replacement). I understand that, only after replacement license(s) have been purchased, will Annual Maintenance Fees on the lost key be waived. Damaged keys may be replaced at Sharpe’s sole discretion for a nominal fee.
This software is licensed “as-is” and with any and all faults. Sharpe hereby disclaims any and all warranties whether express or implied, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, reliability, or availability. I agree that Sharpe’s liability for damages to the user or other resulting from the use of the computer program shall not exceed the amount of the license fee payable to Sharpe, Inc. under this agreement.
I agree that Sharpe shall not in any case be liable for special, incidental, consequential, indirect, or other similar damages arising from any breach of these warranties, even if Sharpe or its agents have been advised of the possibility of such damages. This means that Sharpe is not responsible for any costs, including, but not limited to, those incurred as a result of lost profits or revenue, loss of use of the computer program, loss of data, costs of recreating lost data, the cost of any substitute program, claims by any party other than me, or for other similar costs. I understand that some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to me.
Sharpe warrants that the media on which the enclosed computer program is recorded is free from any defects in materials and workmanship under normal use. The duration of this warranty shall be thirty (30) days from the date of purchase.
I agree to return the defective item shipped prepaid during the warranty period, and Sharpe must receive it within thirty (30) days of the end of the warranty period. I agree to either insure the defective item being returned or assume the risk of loss or damage in transit. All warranty claims must be addressed to: SharpeSoft, Inc. 925 Market St., Yuba City, CA 95991. Any claim under the above warranty must include a dated proof of delivery, such as a copy of the receipt or invoice.
INDEMNITY
I agree to indemnify, hold harmless and defend Sharpe (including its subsidiaries, current and former shareholders, directors, officers, employees, and agents) from and against all losses, damages, expenses, and costs (including reasonable costs and attorneys' fees) based upon any claim or action arising from the use of the Software provided to me, or the alleged or actual breach
of any of my obligations under this Agreement.
ADDITIONAL SOFTWARE/SERVICES
This EULA applies to all updates and add-on components of the software that Sharpe may provide to me, unless other terms are provided with said updates or components.
TERMINATION
I agree that any breach of one or more of the provisions of this agreement by me shall constitute an immediate termination of this agreement. Nevertheless, I agree that in the event of termination, all provisions of this agreement which protect the rights of Sharpe will remain in force.
ADDITIONAL TERMS AND CONDITIONS SCOPE
The terms and conditions of sale contained herein shall apply to all of Buyer’s Orders, in whatever format and however received, that are accepted by Sharpe. By accepting Sharpe’s proposal or by providing an Order for Products, Buyer shall be deemed to have accepted these terms and conditions. This acceptance by Buyer of these terms and conditions shall revoke any provision in
the Order that is purported to limit or restrict any terms or conditions contained herein. All of the terms and conditions contained herein shall supersede any additional or inconsistent provision in any Order.
Provisions, terms, and conditions within any Order or other document submitted by Buyer to Sharpe that are inconsistent with the terms contained herein are hereby expressly rejected and shall not be binding upon Sharpe without its specific written consent. Buyer agrees that Sharpe's failure to specifically object to any such provisions, terms or conditions submitted by the Buyer shall not constitute an acceptance by Sharpe thereof, nor shall it constitute an acceptance by Sharpe of any waiver of, or modification to, the provisions hereof.
The acceptance by Buyer of the Terms, including the different terms and conditions contained herein, shall also indicate that the Buyer accepts and agrees to abide by the Agreements that are provided to the Buyer with the Products, including, but not limited to, End-User License Agreements. The Agreements shall supersede any inconsistent provisions in these Terms in respect of the specific Products to which they relate, and while the Agreements are subsisting. No modification hereof shall be valid unless in writing and duly signed by an authorized representative of Sharpe.
OWNERSHIP
All Software, including Custom Products, is provided to Buyer under license - it is not sold. Sharpe retains ownership of all Software provided to Buyer, including Custom Products. All Buyers must use Software strictly in accordance with the terms and conditions in the applicable Software license agreements entered into with Sharpe. Until such Software license agreements are in place, and
the terms therein accepted by the Buyer, the Buyer cannot use, copy, distribute, or otherwise deal with any Software. Buyers must accept the terms of the End User License Agreement which accompanies the Software, copies of which can be obtained from Sharpe. These Terms shall not be construed to imply a license to use the Software in the absence of a license. By these Terms,
Sharpe expressly rejects any implied license to use the Software.
INSTALLATION
Installation services by Sharpe are not included in any purchase, unless explicitly stated otherwise. Software installation shall be performed by the Buyer. Installation services by Sharpe are also not included in any maintenance services agreement, unless explicitly stated otherwise. Installation of any software upgrades provided by Sharpe shall be performed by the Buyer.
ORDERS
All Orders are subject to acceptance by Sharpe. Sharpe reserves the right to accept or reject any Order in whole or in part, to submit counteroffers to the Buyer and, without prejudice to any other remedy, to cancel any unfilled Order. Sharpe may suspend Services under, or shipment of, any unfilled Order in the event any act or omission on the part of the Buyer is in breach of the Buyer's obligations hereunder or delays Sharpe’s performance hereunder.
PRICES, DELIVERY, & PAYMENT
All prices are subject to change without notice, except prices in a written proposal from Sharpe, which shall be honored as stated therein. All amounts are stated, and payments are to be made, in United States currency unless otherwise agreed by the parties in writing. Unless otherwise specified, the prices shown do not include any taxes. Buyer shall pay all taxes, levies, and duties of any nature whatsoever applicable to the Products supplied hereunder.
Delivery dates are approximate. Sharpe shall use reasonable efforts to fill all Orders according to the shipment schedule provided, but in no event shall Sharpe guarantee shipment according to such schedule or be liable for damages due to delays in the delivery.
Goods shipped or delivered are F.O.B. Yuba City, California, and Buyer shall pay all applicable shipping costs. Risk of loss passes to Buyer upon the earlier of delivery or placement with a carrier. Claims relating to Product shipments must be made by the Buyer directly to the carrier. Sharpe is not liable for any incidental, consequential, or special damages, interest, costs, or expenses, or for damages for loss of use, loss of data, or loss of profits or wages, whether or not Sharpe knew such damages might be incurred. Sharpe’s liability is, in all cases, limited to replacement of defective media.
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All Orders are subject to credit approval before shipment. If, in Sharpe's judgment, Buyer's financial condition does not at any time justify payment terms as previously specified, Sharpe may cancel or suspend any unfilled Order.
Buyer will be invoiced at time of shipment of Product for actual quantity of Product shipped. Where Buyer has established credit, payment shall be due within thirty (30) days from the date of invoice. Overdue accounts shall bear interest at a rate of one-and-one-half (1.5) percent per month or portion thereof, compounded monthly. Payment due date shall not be dependent upon dates of Software or Data installation by Buyer. Sharpe will not refund or credit amounts paid for Products actually rendered.
Sharpe’s remedies for non-payment shall include, in addition to all other remedies provided by law, the right to repossess any Software or Goods in the possession of Buyer, purchased from Sharpe, the title for which has not passed to Buyer. Buyer shall surrender such goods upon demand to Sharpe or Sharpe’s agent. In the event it becomes necessary for Sharpe to incur any collection costs or suits to collect payment, the Buyer will be responsible for all such costs as the courts may adjudge reasonable for attorney fees on said suit. If, despite any default by Buyer, Sharpe elects to continue to make shipments or provide Products, Sharpe’s action in so doing shall not constitute a waiver of any default by Buyer or in any way prejudice Sharpe’s legal remedies for such default.
CUSTOM PRODUCTS
Sharpe provides no representation, guarantee, condition, or warranty, expressed or implied, with respect to the success, timeliness, or successful result of the Custom Product, including, but not limited to: the correctness or applicability of Buyer's designs, specifications, or instructions for any Custom Product, or the design, functionality, or performance of the Custom Product or any products derived from or using any of the Custom Products supplied hereunder, or the amount of time required for developing, producing, and/or implementing any Custom Product.
Design changes may be necessary to correct unanticipated deficiencies resulting from manufacturing processes, software bugs, functional/operational issues, or other anomalies. Development times and milestones provided by Sharpe for any Custom Product are estimates only. Sharpe retains sole discretion to assign and control its staff in the production of Custom Products or in the performance of any work associated with the development of Custom Products. Other than specified herein, all Custom Products are licensed to Buyer "AS IS, WITH ANY AND ALL DEFECTS.” Revisions, modifications, or testing requested by the Buyer that are beyond the original scope of any Custom Product Order accepted by Sharpe may result in additional charges to Buyer. Should Buyer cancel any Order for Custom Products, Buyer shall pay to Sharpe that portion of the purchase price equal to the portion of the Custom Products completed or the Services performed prior to and including the date of receipt of notice of cancellation.
Custom Product Software, as with all Software provided by Sharpe, is provided to the Buyer under license – it is not sold. Sharpe retains ownership and distribution rights of all Software produced by Sharpe or under the control of Sharpe.
Buyer’s raw data for conversion into a Database shall be provided to Sharpe in one of the following electronic file formats: Microsoft Excel, Lotus 1-2-3, delimited ASCII text, Microsoft Access, or Microsoft SQL. Raw data provided in a database format must also include the corresponding Entity Relationship Diagram (ERD). All raw data intended for inclusion in a Database must be provided prior to commencement of data conversion activities by Sharpe – any subsequent data will be omitted from the Database.
DISPUTE RESOLUTION, CHOICE OF LAW
If Buyer fails to perform any of its obligations, monetary or otherwise, pursuant to an accepted Order, Buyer shall pay Sharpe for any and all costs and expenses incurred, including, but not limited to, legal fees, in enforcing Sharpe's rights relating to said Order, whether by formal proceedings or otherwise, in addition to any other remedy available to Sharpe.
Buyer acknowledges that this agreement shall be governed by the laws of the State of California. Proper jurisdiction for any dispute arising under this agreement will be in the County of Sutter, California; or the U.S. 9th Circuit, California Eastern District Court, Sacramento Division.
If Sharpe is the prevailing party in any dispute, Buyer agrees to pay all expenses, including but not limited to court costs and attorney’s fees, incurred by Sharpe as a result of said dispute.
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Effective October 25, 2023.
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