Positioner Inc. END USER LICENSE AGREEMENT
All the terms outlined in this agreement shall be deemed agreed to when products or licenses provided by Positioner Inc. are installed or activated respectivley.
- Where this agreement states: “Positioner”, “our” and “we” includes Positioner Inc. or any party acting on behalf of Positioner Inc.
- Where this agreement states: “you”, “customer” and “user” includes the person purchasing the services or any party acting on the customer’s instructions. If representing a business or organization, we assume that you are authorized to agree to the terms and conditions of service outlined here on behalf of the said business or organization.
- Where this agreement states: “agreement” includes this document. The latest revision of this document can be found at this web site: http://www.Positioner.org/agreement.
- Where this agreement states: “product”, “service” and “support” includes the products and services provided by Positioner Inc.
- Where this agreement states: “customer area” and “members area” includes the Positioner customer portal located at http://Positioner.org/support.
In consideration of the mutual covenants herein, the parties agree to the following, which shall apply during the term of this agreement:
1. AGREEMENT
1.1. By purchasing Positioner Solution you agree to the terms and conditions outlined in this agreement.
1.2. This agreement shall be governed by and construed in accordance with United State’s law and the laws governing New York State, US. You hereby submit to the non-exclusive jurisdiction of New York State, United State’s courts.
1.3. We reserve the right to make changes to this agreement without notice. It is your obligation to obtain and revisit this agreement periodically to review for any changes.
1.4. We have included headings in this agreement only for convenience. These headings shall not affect the construction or interpretation of this agreement.
2. LIMITATION OF LIABILITY
2.1. You agree to use Positioner products entirely at your own risk.
2.2. All conditions, terms, representations and warranties relating to the products supplied under this agreement, whether imposed by statute or operation of law or otherwise, that are not expressly stated in these terms and conditions including, without limitation, the implied warranty of satisfactory quality and fitness for a particular purpose are hereby excluded, subject always to sub clause.
2.3. Our total aggregate liability to you for any claim in contract, negligence or otherwise arising out of or in connection with the provision of the services shall be strictly limited to the charges paid by you for the services that are the subject of any claim made.
2.4. In no event will a claim by brought unless you have notified us of the claim within one year of it arising.
2.5. We disclaim all warranties of merchantability and fitness for a particular purpose. In no event will we be held liable for any loss (data, economic or otherwise) or other commercial damage, including but not limited to special, incidental, consequential or other damages, direct or indirect.
3. INDEMNIFICATION
3.1. You agree to defend, indemnify and hold harmless Positioner against liabilities arising out of:
3.1.1. Any injury to person or property caused by any products or services sold or distributed by Positioner;
3.1.2. Any material supplied by you infringing or allegedly infringing on the proprietary rights of a third party;
3.1.3. Copyright infringement and
3.1.4. Any defective products or services sold to customer.
3.2. You agree to defend, indemnify, save and hold Positioner harmless from any and all demands, liabilities, losses, costs and claims, including reasonable legal fees asserted against Positioner, its agents, its customers, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by customer, its agents, employees or assignees.
3.3. Positioner will be the sole arbitrator of this policy.
4. OWNERSHIP AND LIMITATIONS OF USE
4.1. You may copy the product for back-up and archival purposes, provided that the original and each copy are kept in your possession and that your installation and use of product does not exceed that allowed in this agreement.
4.2. We do not guarantee that your product will be available for download from our servers to you for a period longer than 30 days following your last purchase. Your last purchase in this respect shall be considered to be when you purchased or your license and/or Support and Upgrades package.
4.3. You may not give, sell, distribute, sub-license, time share, lease or lend any portion of the product or documentation to anyone.
4.4. You are able to transfer your license to another party only if your ’support and upgrades’ subscription is active, and entirely at our discretion. After transferring the license, you must destroy all files and documentation that belong to the licensed product.
4.5. You may not place the product onto a server so that it is accessible via a public network such as the Internet for distribution purposes. We retain all rights to distribute the product under its own license.
4.6. You may not use the source code in whole or part in any other software or product.
4.7. The URL of the site where the product is running must be submitted to Positioner and all keys obtained must be used only for the domains they are allowed for.
4.8. You are required to preserve Positioner’s copyright information intact; this includes the text and link on the footer of each page rendered by the products.
4.9. PRODUCT SPECIFIC
4.9.1. Each license of Positioner eCommerce Suite, Positioner KMS and Positioner EMS allows you to install one instance of the product and point up to one domain name to the installation of the product.
4.9.2. Each license of Positioner Positioner InstaAlert Pro, Positioner Positioner SyncWorks, Positioner Mobile and Positioner EMS SIP Addon allows you to install one instance of the product on only one computer, solely for your own personal or business use.
4.9.3. You are entitled to distribute copies of the Positioner EMS Client Application and Positioner Positioner InstaAlert products among your staff users (i.e. those who access your product installation at www.domain.org/installationpath/staff).
4.10. Positioner will be the sole arbitrator of this policy.
5. MODIFICATION OF THE PRODUCT
5.1. You are allowed to modify and adapt the products under the terms outlined here.
5.2. Any modifications made to the product can be distributed either as a product, drop-in or a modification guide.
5.3. You are permitted to sell modifications you make to the products.
5.4. You must not reverse engineer or decrypt any portion of compiled and/or obfuscated source code. This includes but is not limited to ‘Zend encoded’ and ‘IonCube encoded’ portions of PHP code and any compiled binaries.
5.5. We will not provide support for any additions or modifications you make to the product’s source code. We do not guarantee that we will provide support for a product installation with source code modifications made by anyone other than Positioner’s software engineers.
6. LICENSE ACTIVATION
6.1. ADVISORY
6.1.1. Submitting the domain name (as in 6.2.1) or device ID (as in 6.3.1) is the functional equivalant of opening boxed software purchased from a computer store – opening the software to reveal the license key invalidates your entitlement to any refund. Likewise, activating your license with us invalidates your entitlement to any refund.
6.2. Positioner eCommerce Suite, Positioner EMS AND Positioner KMS
6.2.1. A license is considered active when the installation domain name is submitted to us via the members area. This will generate a key.php license file, which is required for the product to function and will tie your installation to the domain entered.
6.2.2. After you submit this domain name, you will not be entitled to a refund for your purchase.
6.2.3. We do not guarantee to be able to change the domain name you have entered here.
6.2.4. When installing the software and when saving a setting inside of the ‘Administrator Control Panel’, your license information (the information you have already recorded in your customer area) is sent to Positioner’s servers for verification. We do not receive or record any other usage data about you or your support desk, and the information is only used for the purposes of license verification.
6.3. Positioner InstaAlert PRO, Positioner EMS SIP ADDON, Positioner SyncWorks, Positioner MOBILE
6.3.1. A license is considered active when the device ID is submitted to us via the members area. This will generate a serial number which is required for the product to function and will work only for the product installed on the computer used to generate the device ID.
6.3.2. After you submit this device ID, you will not be entitled to a refund for your purchase.
6.3.3. We do not guarantee to be able to change the device ID you have entered.
7. REFUND POLICY
7.1. We will not honor a refund request for products whose license has been activated, unless a described feature does not work as originally intended and we are unable to fix the issue.
7.2. We cannot guarantee a refund if any failures related to the product are the result of ‘the environment’ – i.e. the server software, hardware and network onto which the product has been installed.
7.3. Where payment has been made by credit or debit card, refunds will be made to the same named credit or debit card.
7.4. Where payment has been made by PayPal, refunds will be made to the same PayPal account only.
8. PURCHASING AND PAYMENTS
8.1. Full payment (including renewals) is required before any service is rendered.
8.2. We reserve the right to refuse service to anyone.
8.3. We reserve the right to change pricing at any time although all pricing is guaranteed for the period of pre-payment.
8.4. Any due notices, invoices, receipts and billing reminders will be sent by electronic mail only.
8.5. Without prejudice to our other rights and remedies under this agreement, if any balance owed is not paid on or before the due date, we will be entitled to suspend/terminate services to you.
9. SUSPENSION, CANCELLATION AND TERMINATION
9.1. We reserve the right to suspend or terminate the services and/or this agreement at any time.
9.2. If you fail to use the product in accordance with the terms and conditions of this license agreement, it constitutes a breach of the agreement, and your license to use the program is revoked. In this case, we reserve the right to terminate your license and this agreement.
9.3. Following the expiration of your license, the product must be removed from your server or another license must be purchased.
9.4. This license agreement takes effect upon your use of the product and remains effective until terminated. We retain the right to terminate your license to use the product at any time, if in its sole discretion, you are not abiding by the terms of the agreement, including, but not limited to, obscuring or removing any link or copyright notice as specified in this agreement.
9.5. You agree, on termination of this license, to destroy all copies and all components of the product and documentation in your possession. If you continue to use the product after we give you written notice of termination of your license, you hereby agree to accept an injunction to enjoin you from its further use, and to pay all costs, including reasonable attorneys fees, to enforce our revocation of your license, and any damages we suffer by because of your misuse of the product.
10. SERVICE LEVEL AGREEMENT
10.1. SUPPORT
10.1.1. We reserve the right to redefine and change at any time the limitations of support.
10.1.2. Support is available via a ticket submitted from the customer area or via ‘live chat’ which can be accessed at http://Positioner.org/support.
10.1.3. Support is only available to customers whose support and upgrades subscription is up to date.
10.1.4. As a guideline, you can expect to us to do our utmost to ensure that the product is functional, relative to our development cycle.
10.1.5. We will not provide nor support customizations or modifications (software or cosmetic).
10.1.6. We reserve the right to refuse anyone support.
