IMPORTANT – READ CAREFULLY:
THIS CONSTITUTES A LEGAL AGREEMENT (“AGREEMENT”) BETWEEN YOU (EITHER AN INDIVIDUAL OR A LEGAL ENTITY) AND PREFERRED REPAIR NETWORK (“PRN”) WITH RESPECT TO THE SOFTWARE DEFINED BELOW. BY INSTALLING, COPYING, DOWNLOADING OR OTHERWISE ACCESSING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE INSTALLING, COPYING, DOWNLOADING OR OTHERWISE ACCESSING THE SOFTWARE ON BEHALF OF YOUR EMPLOYER, YOU REPRESENT THAT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT ON YOUR EMPLOYER’S BEHALF, AND ALL REFERENCE TO “YOU” OR “YOUR” REFERENCE YOUR EMPLOYER. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PRN IS UNWILLING TO LICENSE THE SOFTWARE TO YOU. IN SUCH EVENT, YOU MAY NOT USE OR COPY THE SOFTWARE, AND YOU SHOULD PROMPTLY DESTROY ALL COPIES OF THE SOFTWARE AND ACCOMPANYING DOCUMENTATION (“DOCUMENTATION”), OR NOTIFY PRN TO OBTAIN INSTRUCTIONS FOR RETURN OF THE UNUSED SOFTWARE IN ACCORDANCE WITH ITS RETURN POLICIES. THE SOFTWARE IS OFFERED TO YOU CONDITIONED ON YOUR ACCEPTANCE WITHOUT MODIFICATION OF THE TERMS CONTAINED HEREIN, AND EXPRESSLY LIMITS ACCEPTANCE TO THE TERMS OF THIS AGREEMENT.
THE SOFTWARE IS PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT TREATIES, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS AND TREATIES. THE SOFTWARE IS LICENSED, NOT SOLD.
YOU MAY NOT USE OR ACCESS THE SOFTWARE IF YOU ARE (i) AN ENTITY OR INDIVIDUAL THAT MARKETS, DISTRIBUTES OR PROVIDES WEB ANALYTICS SOFTWARE OR SERVICES OR (ii) AN ENTITY OR INDIVIDUAL THAT WILL ACCESS OR USE THE SOFTWARE ON BEHALF OF AN ENTITY OR INDIVIDUAL THAT MARKETS, DISTRIBUTES OR PROVIDES WEB ANALYTICS SOFTWARE OR SERVICES.
“Analysis Server” means a single physical computer where you install and run any configuration, analysis, or UI components of the Software.
“Base License” means the license granted to you pursuant to paragraph 2 below for the right to (i) and (ii).
“Customer PCs” means your personal computers, including desktops and laptops.
“Delivery Date” means the date the license key for the Software is delivered to you electronically.
“Documentation” means the user documentation published and made available by PRN to you in connection with your license of the Software.
“Plug-Ins” means client desktop plug-in applications to be accessed by you or your personnel using Customer PCs to utilize the Software and to generate reports and data therefrom.
“Product Add-Ons” means any of the additional Software capacities, functionalities and features offered by PRN and licensed by you as identified on a Quote, a PRN invoice or the relevant license activation key created by PRN.
“Quote” means a PRN-generated quotation issued pursuant to your request for PRN’ products and/or services.
“Term” is defined in Paragraph 12 below.
PRN hereby grants to you as licensee, a limited, nonexclusive, nontransferable license, without right of sublicense, during the Term specified in paragraph 12 below to install and use the Software (including the Documentation) subject to the terms, conditions and limitations set forth in this Agreement. The Software is licensed solely to you in object code format. This license allows you to (i), (ii), and (iii). For you to install and use the Software as specified herein, you must use the Software in accordance with the Documentation, including, without limitation, together with the required third party hardware, software and operating system as described in the PRN System Requirements Documentation.
The rights granted herein are subject to the following restrictions: (i) you may not copy (except for back-up purposes), modify, port, adapt, translate, localize, reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Software; (ii) you may not create derivative works based on the Software or merge the Software with any third party software; (iii) you may not remove, obscure or alter any proprietary notices or labels on the Software or Documentation; (iv) you may not transfer, lease, assign, sublicense, pledge, rent, share, distribute or allow any lien or encumbrance to be placed on the Software; (v) you may not use the Software to provide services to any third party or for the benefit of any third party (whether by means of a service bureau or otherwise), including, without limitation, any entity or individual that markets, distributes or provides web analytics software or services; (vi) you may not give any third party access to the Software; and (vii) you may not disclose the results of any performance, functional or other evaluation or benchmarking of the Software to any third party without the prior written permission of PRN. You may distribute reports generated by the Software. In exercising your rights with respect to the Software, you hereby agree to at all times comply with (a) your own policies regarding privacy and protection of user information, and (b) all applicable laws, rules and regulations, including those related to processing, storage, use, reuse, disclosure, security, protection and handling of personal information and data, and applicable export and import control laws and regulations. You agree to indemnify PRN against all losses (including reasonable attorneys’ fees), liabilities, actions or claims brought by a third party to the extent that such losses, actions or claims arise out of your breach of the immediately foregoing sentence regarding privacy.
- INSTALLATION AND ACCEPTANCE.
You are responsible for the installation, implementation and configuration of the Software as permitted under this Agreement. Upon your acceptance of this Agreement, PRN will provide you with a license key to permit access to the Software. You must protect the license key as Confidential Information of PRN. The Software will be deemed accepted upon the delivery of such license key for the Software.
- TITLE AND THIRD PARTY SOFTWARE.
The Software and Documentation are confidential and proprietary information of PRN, its licensors and/or its subsidiaries. Title, ownership rights, and intellectual property rights in and to the foregoing shall remain with PRN, its licensors and/or its subsidiaries. The Software and Documentation are protected by the copyright laws of the United States and international copyright treaties. This license does not convey to you an interest in or to the Software, but only grants you a limited right of use, which may be revocable in accordance with the terms of this Agreement. The Software may contain or be distributed with third-party software covered by source free software license or other third party software license, and the terms and conditions of this license do not apply to such third-party software. The notices, license terms and disclaimers applicable to such third party software are contained in the Readme and/or 3rdparty.txt file in the Software.
- EVALUATION USE.
In the event that you have licensed the Software for evaluation purposes only, the terms of this paragraph shall apply in addition to all the other terms of this Agreement. Your license to use the Software commences on installation of the Software and, unless you and PRN agree to a different period, terminates automatically fourteen (14) days after the date of installation (the “Evaluation Period”). You may use the Software for an unlimited number of Page Views and Events during the Evaluation Period. Software licensed for evaluation purposes will automatically disable itself at the end of the Evaluation Period, as it employs a restriction mechanism which restricts the program to a limited period of time. This restriction mechanism and the manner in which it enforces the restriction are maintained in confidence by PRN as a trade secret, and you may not publish, disclose or reveal it. You agree that you will not do anything to circumvent or defeat the restriction mechanism. Additional product functionality restrictions may apply during the Evaluation Period.
If your license includes PRN support and maintenance, such support and maintenance is provided in accordance with PRN’s then prevailing maintenance policy located on PRN’s website. Such support and maintenance services begin on the Delivery Date of the applicable Software. PRN will not and is not obligated to provide support and maintenance of any installation of the Software that is not in compliance with the specifications included in the Documentation and all other written materials made available to you by PRN regarding the Software and related best practices. This Agreement does not grant to you any right to receive or to use any enhancement or update of the Software. Your license of the Software pursuant to this Agreement does not include any professional services, including consulting, implementation and training services. Subject to execution by you and PRN of a statement of work or other agreement with respect to professional services, PRN may provide professional services to you from time to time. Such professional services shall be provided in accordance with the relevant statement of work or other agreement.
- LIMITED WARRANTY.
Subject to the terms and conditions of this Agreement, PRN warrants that (i) it has the necessary rights to provide you with the license based on the terms and conditions of this Agreement, (ii) for a period of thirty (30) days from Delivery Date, the Software, when used as permitted under this Agreement and in accordance with the instructions in the Documentation, will operate substantially as described in the Documentation, and (iii) when and as made available to you in accordance with paragraph 4 above, the Software will contain no Virus. For purposes of this paragraph, “Virus” means any computer code intentionally designed to (a) disrupt, disable, harm or otherwise impede in any manner the proper operation of a computer program or computer system, or (b) damage or destroy any data files residing on a computer system without the user’s consent. PRN’s sole obligation and your exclusive remedy for any breach of the warranty in paragraph 8(ii) will be for PRN to use commercially reasonable efforts to correct any reproducible error in the Software reported to PRN by you during such thirty day period. PRN’s sole obligation and your exclusive remedy for any breach of the warranty in paragraph 8(iii) will be for PRN to make available to you at no additional charge a copy of the Software free of the identified Virus. PRN is not responsible and shall have no warranty obligations whatsoever with respect to any Software that has been modified in any way by anyone other than PRN.
- WARRANTY DISCLAIMER.
OTHER THAN AS EXPRESSLY STATED IN PARAGRAPH 8 ABOVE, THE SOFTWARE, DOCUMENTATION, SERVICES AND REPORTS ARE PROVIDED “AS IS.” THE FOREGOING WARRANTIES ARE IN LIEU OF ANY AND ALL OTHER WARRANTIES, REPRESENTATIONS AND CONDITIONS, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF TITLE, QUALITY, PERFORMANCE, NONINFRINGEMENTY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. PRN AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT THAT THE SOFTWARE, DOCUMENTATION, SERVICES OR REPORTS WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED. PRN AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT THE ACCURACY OF THE REPORTS GENERATED BY THE SOFTWARE. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SOFTWARE.
- LIABILITY LIMITATION.
PRN, ITS EMPLOYEES, AGENTS, SUPPLIERS AND SUBSIDIARIES WILL NOT BE LIABLE TO YOU OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION CONTAINED IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE OF ANY REMEDY. PRN’ CUMULATIVE LIABILTY TO YOU OR TO ANY OTHER PARTY FOR ANY LOSS OF DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SOFTWARE, DOCUMENTATION, SERVICES OR REPORTS SHALL NOT EXCEED THE TOTAL FEES YOU PAID TO PRN UNDER THIS AGREEMENT DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM GIVING RISE TO THE LIABILITY.
Each party may have access to information that is confidential (“Confidential Information”). Confidential Information shall include any information that is clearly identified in writing at the time of disclosure as confidential as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential. PRN’s Confidential Information shall include, but not be limited to, the Software, Documentation, formulas, methods, know-how, processes, designs, new products, developmental work, the terms and pricing under this Agreement, and the results of any comparative or other benchmarking tests with respect to the Software, in each case regardless of whether such information is identified as confidential. Confidential Information includes all information received from third parties that each party is obligated to treat as confidential and oral information that is identified as confidential. Such obligations of confidentiality shall survive any termination of this Agreement. This obligation of confidentiality does not apply to any information that is or becomes a part of the public domain through no act or omission by the receiving party, was in the receiving party’s lawful possession prior to the disclosure without any restriction on disclosure, or is independently developed by the receiving party without use of or reference to such Confidential Information. If the receiving party is required to disclose such Confidential Information to any court or government authority, then the receiving party hereby agrees to provide the disclosing party with sufficient written notice prior to the receiving party’s disclosure. Such obligations of confidentiality shall survive any termination of this Agreement.
Each party agrees not to make Confidential Information available in any form to any third party except to employees or agents who are required to know to allow each party to exercise its rights under this Agreement, or to use the Confidential Information for any purpose other than in the performance of this Agreement. You shall not disclose the results of any performance tests of the Software to any third party. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by employees or agents in breach of this Agreement.
- TERM AND TERMINATION.
The term of the Software license granted hereunder is for the time period specified in the Quote or PRN invoice issued in connection with the Software licensed hereunder, and may be perpetual or a limited term (the “Term”), commencing on the Delivery Date. If your license in the Software is for a limited term, unless you and PRN have agreed in writing to extend the Term, upon the expiration or earlier termination of such Term, the license granted to you under this Agreement for such Software will automatically terminate without any further action from either party. If your license in the Software is for a perpetual term, the license granted hereunder is perpetual, unless earlier terminated in accordance with the terms of this Agreement. This license will terminate automatically if you fail to comply with any term hereof. No notice shall be required from PRN to effect such termination. You may also terminate this Agreement at any time by notifying PRN in writing of termination. On termination, you must destroy all copies of the Software and Documentation. Your obligation to pay accrued charges and fees shall survive any termination of this Agreement.
You are responsible for making full and timely payment to PRN of all applicable license fees and other fees. You shall pay all of PRN’s reasonable costs and expenses (including reasonable attorneys’ fees) if legal action is required to collect outstanding balances. Unless otherwise specified in writing by PRN, all payments are due and payable net thirty (30) days from the date of invoice. You hereby acknowledge that all sales and use tax, VAT or GST are your responsibility. Fees for the Software are non-refundable. PRN shall have no obligation to return, and you shall have no right to receive, any portion of the Software license fees.
During the term of this Agreement, PRN shall maintain at its sole expense and cost, commercial general liability insurance in the amount of $1,000,000 per occurrence.
- AUDIT RIGHTS.
You hereby agree that PRN may audit your use of the Software and Documentation to verify compliance with this Agreement by comparing your use of the Software as reflected in data recorded by the Software with information on the terms of your license which are stored at PRN. Each server on which you install or operate the Software must be configured to enable periodic HTTP communication with PRN. During this communication, license information is transmitted from PRN to the server, and periodic updates are sent to PRN to ensure compliance and to assist in troubleshooting a customer installation when necessary. The information transmitted during these periodic updates include, but are not limited to, the number of profiles currently configured, the operating system, IP address, hostname, the peak number of simultaneous and individually defined users, the number of Page Views and Events per month collected and processed, and the peak hits, streaming events, and servers in operation for the month. If you are unwilling to provide this communication capability, you may opt out of ongoing communication, but you must activate the initial product installation and subsequent changes through a manual activation process. If communication is not established (either via HTTP or manually) between the server on which you install or operate the Software and PRN, or if the usage of the Software is considered to be out of compliance with this agreement, the Software may, without notice, cease to analyze data.
- GOVERNING LAW AND VENUE.
This Agreement shall be governed by and construed under Florida law as such law applies to agreements between Florida residents entered into and to be performed within Florida, except as governed by Federal law. Any controversy or claim arising out of or in any way connected with this Agreement or the alleged breach thereof shall be brought in the state and federal courts located in the State of Florida. Each party waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this paragraph. If any term of this Agreement is inconsistent with any provision of the Uniform Computer Information Transactions Act (“UCITA”), as UCITA may be enacted in the state whose law applies, such term shall be enforced to the full extent allowed by law. UCITA shall not apply to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
- EXPORT LAW ASSURANCES.
You acknowledge and agree that the Software is subject to the U.S. Export Administration Regulations and the export, import and re-export regulations of any other applicable jurisdiction. Diversion of such Software to any country in violation of U.S. law is prohibited. You hereby agree to fully comply with the export laws and regulations of the United States and other applicable jurisdictions in your use of the Software. Without limiting the foregoing, (i) you represent that you are not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) you agree that the Software will not be shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals in violation of any U.S. export embargo, prohibition or restriction.
- U.S. GOVERNMENT RESTRICTED RIGHTS.
The Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101, and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, the Software is provided to U.S. Government end users (a) only as a commercial end item and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
By registering or downloading this product, you make the registered e-mail address available to receive information about PRN and our products.
- ENTIRE AGREEMENT.
This Agreement, including all Quotes executed by the parties, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals, and representations written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in your purchase order or in any other order documentation of yours shall be incorporated into or form any part of this Agreement, and all such terms and conditions shall be null and void.
If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable. Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned, or otherwise transferred, in whole or in part, by you, whether voluntary or by operation of law, and any such attempted assignment shall be void and of no effect. Notwithstanding the foregoing sentence, either party may assign this Agreement in connection with a merger, reorganization, acquisition, or sale of all or substantially all of its assets, as long as in your case, the surviving entity is not a competitor of PRN. This Agreement shall be binding upon and will inure to the benefit of the parties and their respective heirs, successors, permitted assigns, and legal representatives. You hereby grant PRN the right to use your trade name and your corporate logo in connection with PRN’ promotional materials and to identify you as a customer of PRN, and agree that PRN may announce this deal in a press release. PRN and its licensors and suppliers shall not be liable in any respect for failures to perform hereunder due wholly or substantially to the elements, acts of God, labor disputes, acts restrictions, armed hostilities, riots, acts of terrorism and other events beyond the reasonable control of PRN or its licensors or suppliers, and the time for performance of obligations hereunder by PRN or its licensors or suppliers subject to such event shall be extended for the duration of such event.
Last modified: February 11, 2021