Terms of Service
THIS LICENSE AGREEMENT (“Agreement”) is a legal Agreement between the Licensor and Licensee:
Optima Management Software (Formerly Sgarware)
6405 Long Point Rd
Brewerton, NY 13029,
This Agreement shall be deemed a month-to-month agreement and the Licensing fee shall be due on the first business day of each month following the month in which this Agreement is executed, whether or not Licensee connects to Licensor’s server or otherwise uses the software.
Failure of Licensee to timely pay the licensing fee to Licensor shall authorize Licensor to terminate this agreement and prevent Licensee from access to the server and use of the Software. Licensee agrees to refrain from either accessing the server or otherwise using the Software or any copy thereof after the date Licensor has terminated this Agreement. If Licensor must utilize the courts system to enforce its rights hereunder, Licensee shall be liable to Licensor for the actual cost incurred by Licensor commencing suit, including Licensor’s attorney’s fees.
TERMINATION OF THE AGREEMENT. This Agreement may be immediately terminated by Licensor for failure of Licensee to pay Licensing fee or upon ten days written notice in the event that Licensee is in breach of any other covenants or conditions herein contained. This Agreement may be terminated by the Licensee by the following (i) Thirty day written notice; (ii) accompanying the written notice, Licensee must return all copies of the Software, if any provided to or otherwise acquired by Licensee; (iii) the removal of any and all copies or any vestige of the Software from each computer into which the Software was installed; and (iv) Licensee must provide to Licensor a certified statement that Licensee no longer possesses and agrees not use any copy or form of the Software unless Licensee enters into a separate agreement with Licensor.
3. RESERVATION OF RIGHTS AND OWNERSHIP. Licensor reserves all rights not expressly granted to Licensee in this Agreement. The Software is intended to be protected or will be protected by copyright and other intellectual property laws and treaties. Licensor or its suppliers own the title, copyright, and other intellectual property rights in the Software. The Software is licensed, not sold. This Agreement does not grant Licensee any rights to trademarks or service marks of Licensor.
4. CONFIDENTIALITY. All information input into the server for Licensee’s use with the Software shall be strictly confidential and shall not be used by the Licensor for any purpose whatsoever. Licensor shall take reasonable steps to secure the server and the Licensee’s information from access by any other unauthorized third party. Licensee shall be responsible to protect any password or other security feature employed to limit access to Licensee’s information. Licensor shall not be responsible to Licensee for lost, corrupted or misused information as a result of Licensee failure to protect its password or other server access security feature. Upon the termination of this Agreement, Licensor shall compile all Licensee’s information on a spreadsheet format and deliver such information to Licensee. Licensee information will thereafter be destroyed or otherwise completely purged from the Server. Licensor shall not use Licensees information for any purpose whatsoever and shall never use the information without the prior permission of the Licensee.
5. TERMINATION. Without prejudice to any other rights, Licensor may terminate this Agreement if Licensee fails to comply with the terms and conditions of this Agreement.
6. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATON, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF LICENSOR OR ANY SUPPLIER, AND EVEN IF LICENSOR OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. LIMITATION OF LIABILITY AND REMEDIES. Notwithstanding any damages that Licensee might incur for any reason whatsoever (including, without limitation, all damages referenced herein and all direct or general damages in contract or anything else), the entire liability of Licensor and any of its suppliers under any provision of this Agreement and Licensee’s exclusive remedy hereunder (except for any remedy of repair or replacement elected by Licensor with respect to any breach of the Limited Warranty) shall be limited to the greater of the actual damages Licensee incur in reasonable reliance on the Software up to the amount actually paid by Licensee for the Software or $5.00.
9. APPLICABLE LAW. This Agreement is governed by the laws of the State of New York.
10. ENTIRE AGREEMENT; SEVERABILITY. This Agreement is the entire Agreement between Licensee and Licensor relating to the Software and supersedes all prior or contemporaneous oral or written communications with respect to the Software or any other subject matter covered by this Agreement. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.