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Term of Service and Agreement
our term of service and agreement.
LICENSE AGREEMENT
ETCCAFE CO., LTD
Software License Agreement
(Ugetweb Ecommerce Shopping Cart)
ETCCAFE CO., LTD. SOFTWARE LICENSE AGREEMENT ("AGREEMENT")
IMPORTANT: READ THESE TERMS CAREFULLY BEFORE USING THIS SOFTWARE.
YOU (THE "LICENSEE") ACKNOWLEDGE THAT YOU HAVE READ THIS
AGREEMENT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT,
YOU MAY NOT USE THE SOFTWARE, AND IT IS YOUR RESPONSIBILITY TO TERMINATE
SOFTWARE WITHOUT USING THE SOFTWARE.
Terms and Conditions
- Definitions.
“Confidential Information” is defined in Section 6.1.
“Designated Site” means the domain of physical facility
where Licensee first installs the Licensed Program.
“Documentation” is defined in Section 2.1.
“Effective Date” means the effective date of the order
of the Licensed Program.
“License” means the license granted to the Software under
the terms and conditions set out in Section 2 below.
“License Fee” means the license fee payable for the License,
at the fee per Designated Site set forth in Ugetweb's then current
price list, plus any applicable Taxes.
“Licensed Program” means Ugetweb software purchased by
Licensee, the current, generally released version as of the Effective
Date, as installed by this installation process, and any Upgrades
thereto provided by Ugetweb pursuant to Software Support and Upgrades
policy, in machine-executable form only.
“Software” is defined in Section 2.1.
“Software Support and Upgrades Fees” is defined in the
Support Terms.
“Software Support and Upgrades Services” is defined in
the Support Terms.
“Support Terms” means Ugetweb’s standard Software Support
and Upgrades Terms and Conditions, set out in Exhibit
A to this Agreement, attached hereto and made a part hereof
by reference.
“Taxes” is defined in Section 4.2.
“Term” is defined in Section 10.1.
“Upgrades” is defined in the Support Terms.
“Ugetweb” means Etccafe Co., Ltd., having its principal
offices at 39 Ramkumheang Road Soi 14, Huamark, Bangkapi, Bangkok,
Thailand 10240.
- The Right to Use Software.
- License. Subject to the terms and conditions set
forth below and Licensee's payment of the License Fee, Ugetweb
grants to Licensee a limited, non-exclusive and non-transferable
license, during the Term (as defined below) to install and
operate the Licensed Program, in machine-executable form only
on the Designated Site and solely in accordance with the associated
delivered documentation (the "Documentation") (the
Documentation together with the Licensed Program collectively,
the "Software").
- Designated Site. Licensee shall implement reasonable
controls to ensure that the Licensed Program is used solely
on the Designated Site . Ugetweb reserves the right to audit
Licensee's use of the Licensed Program during normal business
hours and with reasonable notice and to include means within
the Licensed Program to limit Licensee's use of the Licensed
Program only at the Designated Site. Except as otherwise expressly
provided herein, in the event that Licensee uses the Licensed
Program on any domain other than Designated Site, Licensee
shall promptly pay Ugetweb the fees required to license such
additional Designated Site based upon Ugetweb's then-current
commercial price list.
- Backup Database. Licensee is authorized to backup
database information generated by the Software located at
the Designated Site on a resevation and protection basis without
charge any structure of database at Designated Site.
- Restrictions. Licensee may only make one copy of
the Software as necessary for bona fide backup or archival
purposes. No identifying marks, copyright or proprietary rights
notices may be deleted from any copies of the Software made
by Licensee. Except as otherwise expressly permitted hereunder,
Licensee shall not rent, transfer, distribute, modify or translate
the Software or decompile, create or attempt to create, by
reverse engineering or otherwise, the source code from the
object code of the Software, or adapt the Software, or any
portion thereof, in any way or use it to create a derivative
work.
- Software Support and Upgrades Services. Licensee
may elect to purchase Software Support and Upgrades Services by
so ordering from Ugetweb and paying Ugetweb the applicable Software
Support and Upgrades Services Fees in accordance with the Support
Terms. See Exhibit A
- Payment.
- Payment of Fees. Licensee shall pay the non-refundable
License Fee prior to using the Software. At Licensee's option
during the online registration process, Ugetweb will either
charge the License Fee to the credit or debit card account
provided by Licensee, or provide Licensee with a purchase
order to print out, duly execute and fax or mail to Ugetweb
followed by a wire transfer of the License Fee. Licensee will
only gain access to the Licensed Program once the License
Fee has been transferred and accepted by Ugetweb.
- Taxes. Licensee shall, in addition to all other
payments required hereunder, pay all applicable sales, use,
transfer or other taxes and all duties, whether international,
national, state, or local, however designated, which are levied
or imposed by reason of the transaction contemplated hereby;
excluding, however, income taxes on profits which may be levied
against Ugetweb ("Taxes"). Licensee shall reimburse
Ugetweb for the amount of any such Taxes or duties paid or
accrued directly by Ugetweb as a result of this transaction.
- Late Payment. If payment is not received by Ugetweb
from Licensee's credit or debit card issuer or its agents,
Licensee agrees to pay all amounts due upon demand by Ugetweb.
If Licensee fails to pay License Fees or Software Support
and Upgrades Fees by their due date, without limitation of
other rights and remedies, at Ugetweb's request, Licensee
shall pay late charges of one and one half percent (1.5%)
per month, together with all of Ugetweb's expenses and collection
costs, including reasonable attorneys' fees, incurred in enforcing
the Agreement. Payments shall be paid in U.S. currency. Any
rate of exchange which may be applicable to payments due or
other monetary calculations for purposes of this Agreement
shall be the rate set forth in the Wall Street Journal on
the day that the payment is due.
- Proprietary Rights.
- Title to Software. Licensee acknowledges that the
Software (and any copies thereof) are the sole and exclusive
property of Ugetweb or Ugetweb's licensors, including all
applicable rights to patents, copyrights, trademarks and trade
secrets inherent therein or appurtenant thereto, in all media
now known or hereinafter developed.
- Licensee’s Rights. Licensee is not purchasing title
to the Software or copies thereof, but rather is being granted
only a license to use the Software.
- Rights Reserved by Ugetweb. All rights not granted
to Licensee herein are reserved to Ugetweb.
- Confidentiality.
- Restrictions on Use. Licensee shall not sell, transfer,
publish, disclose, display or otherwise make available to
others any portion of the Software, the financial terms of
this Agreement, or any other information identified in writing
by Ugetweb as confidential or proprietary or which, at law
or equity, ought to remain confidential (collectively, the
"Confidential Information") without Ugetweb's prior,
written consent in each instance.
- Disclosure to Employees. Licensee agrees to secure
and protect the Confidential Information in a manner consistent
with the maintenance of Ugetweb's right therein and to take
appropriate action by instruction or agreement with its employees
who are permitted access to the Confidential Information to
satisfy Licensee’s obligations hereunder.
- Identifying Unauthorized Use. Licensee shall use
its best efforts to assist Ugetweb in identifying and preventing
any unauthorized use, copying or disclosure of the Confidential
Information, or any portion thereof, or any of the algorithms
or logic contained therein. Licensee shall advise Ugetweb
immediately in the event Licensee learns or has reason to
believe that any person to whom Licensee has given access
to the Confidential Information, or any portion thereof, has
violated or intends to violate the confidentiality of the
Confidential Information or the proprietary rights of Ugetweb,
and Licensee will, at Licensee's expense, cooperate with Ugetweb
in seeking injunctive or other equitable relief in the name
of Licensee or Ugetweb against any such person.
- Degree of care. Licensee agrees to maintain the
confidentiality of the Confidential Information using at least
as great a degree of care as Licensee uses to maintain the
confidentiality of Licensee's own most confidential information.
- Remedies on Breach. Licensee acknowledges that the
disclosure of any aspect of the Confidential Information will
immediately give rise to continuing irreparable injury to
Ugetweb inadequately compensable in damages at law, and Ugetweb
is entitled to obtain immediate injunctive relief against
the breach or threatened breach of any of the foregoing confidentiality
undertakings, in addition to any other legal remedies which
may be available. In addition, Ugetweb may immediately terminate
this Agreement, including all license rights granted herein,
in the event Licensee breaches any of its confidentiality
obligations herein.
- Indemnity.
Licensee will, at its own expense, defend any action brought by
a third party against Ugetweb to the extent that such action is
based on a claim arising from or relating to Licensee's use of
the Software, provided Ugetweb promptly notifies Licensee in writing
of any such claim and, provided further, that Licensee shall have
the exclusive right to control such defense. Licensee's obligation
in this Section 7 shall be relieved by Ugetweb's failure to promptly
notify Licensee of a claim only to the extent that Licensee is
materially prejudiced by such failure.
In no event shall Licensee settle any such claim, lawsuit or proceeding
in any manner that materially prejudices Ugetweb's rights without
Ugetweb's prior written approval.
- Warranty.
ALL SOFTWARE AND SERVICES OF UGETWEB ARE PROVIDED "AS IS,"
WITHOUT WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, EITHER IN
FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE (INCLUDING
BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE OR USE AND NONINFRINGEMENT). UGETWEB DOES
NOT WARRANT THAT THE SOFTWARE WILL BE DELIVERED OR PERFORM ERROR-FREE
OR WITHOUT INTERRUPTION. LICENSEE'S USE OF THE SOFTWARE IS AT
LICENSEE'S OWN RISK.
- Limitation of Liability.
UGETWEB AND UGETWEB'S LICENSORS SHALL HAVE NO LIABILITY WITH RESPECT
TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR SPECIAL,
INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES,
INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS
INTERRUPTION, OR LOSS OF INFORMATION ARISING OUT OF THE USE OF
OR INABILITY TO USE THE SOFTWARE, EVEN IF UGETWEB OR UGETWEB'S
LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL UGETWEB OR UGETWEB'S LICENSORS BE LIABLE FOR
ANY REASON AND UPON ANY CAUSE OF ACTION WHATSOEVER RELATING TO
ANY THIRD PARTY SOFTWARE OR HARDWARE. IN NO EVENT SHALL UGETWEB'S
AGGREGATE LIABILITY FOR ANY REASON(S) AND UPON ANY CAUSE(S) OF
ACTION WHATSOEVER EXCEED THE AMOUNT OF LICENSE FEES ACTUALLY PAID
BY LICENSEE TO UGETWEB UNDER THIS AGREEMENT.
- Term and Termination.
- Term. The term of this Agreement (the "Term")
shall commence on the Effective Date and shall continue perpetually,
or as specified in the purchase order, unless terminated earlier
pursuant to this Agreement.
- Termination. In addition to its rights as set forth
elsewhere in this Agreement, at law or in equity: (i) Ugetweb
shall have the right to terminate this Agreement upon thirty
(30) days written notice to Licensee upon material violation
or breach by Licensee, its officers or employees of any provision
of this Agreement, in the event that such breach has not been
cured within such period, and (ii) this Agreement shall automatically
terminate in the event that Licensee fails to meet its payment
obligations hereunder.
- Effect of Termination. The termination of this Agreement
shall automatically, and without further action by Ugetweb,
terminate and extinguish the License. In the event of termination
of this Agreement by Ugetweb, Ugetweb shall have the right,
at any time, to take immediate possession of the Software,
and all copies thereof, wherever located. Within five (5)
days after the termination of the License granted hereunder,
Licensee shall return the Software, including all copies thereof,
to Ugetweb, or upon request of Ugetweb, destroy the Software
and all copies thereof and certify in writing that the same
have been destroyed.
- Survival. Notwithstanding the foregoing, Sections
4, 5, 6, 7, 8, 9, 10, 12, 13 and 14 shall survive the expiration
or termination hereof for any reason.
- Operating Environment.
Licensee is solely responsible for acquiring, installing, operating
and maintaining the hardware and software environment necessary
to operate the Licensed Program.
- General.
- Entire Agreement. This Agreement constitutes the
complete and exclusive statement of the terms and conditions
between the parties, and supersedes and merges all prior proposals,
understandings and other agreements, oral and written, between
the parties, relating to the subject matter hereof. This Agreement
may not be modified or altered except by written instrument
duly executed by both parties.
- Waiver. The failure of either party to exercise any
right provided for herein shall not be deemed a waiver of
any further right hereunder. No action, regardless of form,
arising out of this Agreement may be brought by either party
more than two (2) years after the cause of action has arisen,
with the exception of violation of Ugetweb's proprietary rights
in the Software or the confidentiality obligations set forth
herein.
- Assignment. Licensee may not assign or sublicense,
without the prior written consent of Ugetweb, its rights,
duties or obligations under this Agreement, in whole or in
part, to any person or entity.
- Governing Law. This Agreement and any action related
hereto shall be governed by the laws of Thailand without reference
to the conflict of laws provisions thereof. Ugetweb and Licensee
hereby agree on behalf of themselves and any person claiming
by or through them that the sole and exclusive jurisdiction
and venue for any litigation arising from or relating to this
Agreement or the subject matter hereof shall be an appropriate
court located in the Thailand. If any provision of this Agreement
is invalid under any applicable statute or rule of law, it
is to that extent to be deemed omitted.
- Relationship of Parties. It is expressly agreed
that Ugetweb and Licensee are acting hereunder as independent
contractors.
- Notice. Any notice provided pursuant to this Agreement
shall be in writing and shall be deemed given (i) if by hand
delivery, upon receipt thereof; (ii) if mailed, three (3)
days after deposit in the mails, postage prepaid, certified
mail, return receipt requested; or (iii) if by next day delivery
service, upon such delivery. All notices shall be addressed
to Ugetweb at Etccafe Co., Ltd. at 39 Ramkumheang Road Soi
14, Huamark, Bangkapi, Bangkok, Thailand 10240, and to Licensee
at the address provided by Licensee upon downloading the Licensed
Program. Either party may change its address by giving written
notice to the other party. Notwithstanding the foregoing,
notice by Ugetweb to Licensee may be effected by electronic
mail sent to the electronic mail address indicated to Ugetweb
upon downloading the Licensed Program or to a different electronic
mail address of which Licensee has notified Ugetweb.
EXHIBIT A
TO UGETWEB
LICENSE AGREEMENT
Software Support and Upgrades
Terms and Conditions
These Support Services Terms and Conditions (“Support Terms”) are
referenced in and incorporated into the License Agreement between
Ugetweb and the Licensee. Ugetweb may, from time to time, offer
different maintenance and support options than as set forth herein.
Such options will be specified on Ugetweb’s website.
- Definitions.
Unless defined otherwise herein, capitalized terms used herein
shall have the same meaning as set forth in the License Agreement.
“License Agreement” means the Ugetweb License Agreement
between the Licensee and Ugetweb, which agreement references and
incorporates these Support Terms.
“Response Time” means the time frame within which Ugetweb
shall provide the Licensee with a first response to a reported
error in the Licensed Program submitted in writing to Ugetweb’s
online help desk. Such time frame shall be within 24 hours for
errors reported from Sunday through Thursday or within 72 hours
for errors reported on Friday or Saturday.
“Software Support and Upgrade Fees” means the annual fees
payable for Software Support and Upgrades in the amount set forth
in the then current published list License Fee for each Support
Period (hereinafter defined), due on the effective date of the
order by which Licensee elects to obtain the Software Support
and Upgrades.
“Software Support and Upgrades” is defined in section 2.1
below.
"Upgrades" means releases and versions of the
Licensed Program issued subsequent to the release or version initially
delivered hereunder in which Ugetweb has incorporated (i) accumulated
corrections or Bug Fixes, (ii) Minor Upgrades, (iii) Major Upgrades,
(iv) new platform compatibility; and/or (v) if applicable, new
or revised Documentation that describes the updated Licensed Program.
“Bug Fixes” shall be incorporated in a new version or release,
indicated by a version number change in the second digit to the
right of the decimal point of the version number (e.g., from version
1.0.1 to 1.0.2). A “Minor Upgrade” is defined as a new version
or release, where the change in the version number appears as
an increase in the first digit to the right of the decimal point
of the version number (e.g., from version 1.1 to 1.2). A “Major
Upgrade” is defined as a new version or release where the change
in the version number appears as an increase in the first digit
to the left of the decimal point of the version number (e.g.,
from version 1 to 2). Upgrades shall not include any options or
future products, which Ugetweb licenses separately.
- Software Support and Upgrades.
Scope. In consideration for Licensee’s payment of the Software
Support and Upgrade Fees, and subject to the terms and conditions
of these Support Terms, Ugetweb shall provide to Licensee during
the Support Period Software Support and Upgrades, as specified
below:
- Online Support. Ugetweb shall make technical support
available to Licensee solely within the Response Time and
via the Ugetweb help desk, available through the Ugetweb website.
Technical support shall not be available via email or phone
correspondence.
- Upgrades. Ugetweb shall provide Licensee with Upgrades
to the Licensed Program that are generally released to Ugetweb's
similarly situated licensees.
- Exclusions. Notwithstanding anything to the contrary,
Ugetweb shall have no obligation hereunder to provide Software
Support and Upgrades for (i) corrections of difficulties or
defects due to Licensee's computer hardware, the computer
environment, the computer operating system, use of the Software
on equipment or an operating system not approved by Ugetweb
or other causes external to the Software, or (ii) Software
that has been modified from its standard form as provided
by Ugetweb.
Support Period. Subject to Section 2.4 below, Software
Support and Upgrades shall be provided either: (a) for a period
of one (1) year from the Effective Date (as defined in the License
Agreement) if the Software Support and Upgrades Fees are included
in the License Fees; or, (b) for a period of up to one year, commencing
as of the date of the order of such Software Support and Upgrades
and ending on the next anniversary of the Effective Date, (collectively,
the “Support Period”). The Licensee may extend the Support Period
each year for an additional period of up to one (1) year, ending
on the next anniversary of the Effective Date, by submitting an
order for such services. to Ugetweb.
Termination for Cause. In the event Licensee fails to make
payment pursuant to the Section below entitled “Payment,” or in
the event Licensee otherwise materially breaches these Support
Terms and such breach has not been cured within thirty (30) days
of receipt of notice of breach, Ugetweb may suspend or cancel
services.
Duration. Software Support and Upgrades, if ordered, shall
be available to Licensee (i) only so long as Licensee maintains
the current installed version of the Licensed Program with all
new Upgrades and any other new releases, versions, updates, enhancements
and error fixes, and so long as the equipment on which the Licensed
Program is installed is configured as specified in the Documentation,
(ii) only so long as Licensee is up-to-date in its payment of
Software Support and Upgrades Fees, and (iii) until termination
or expiration of the License Agreement. In addition, the Software
Support and Upgrades may not be reinstated for an applicable Licensed
Program if the Licensee fails to obtain Software Support and Upgrades
for any given time period and a Major Upgrade of the Licensed
Program has been released during such period.
Limitation. Notwithstanding anything to the contrary herein,
Licensee shall be solely responsible for backing up the Licensed
Program and performing other basic repairs as set forth in the
Documentation or instructions which may be provided by Ugetweb
to Licensee from time to time.
- Payment.
Payment of Support Fees. Unless the Support and Upgrades Fees
are included in the License Fee, on receipt of Licensee’s order
for Software Support and Upgrades, Ugetweb shall invoice Licensee
in advance in the amount of the Software Support and Upgrades
Fees, which shall be due on the Effective Date or on the effective
date of the order by which Licensee elects to obtain the Software
Support and Upgrades. Licensee hereby agrees to pay all Software
Support and Upgrades Fees at the prices and upon terms as set
forth herein. Licensee acknowledges that Software Support and
Upgrades Fees are non-refundable.
Prices. Ugetweb reserves the right to change prices or institute
new charges for the Software Support and Upgrades effective after
the first anniversary of the Effective Date, provided that Ugetweb
posts such new charges on Ugetweb’s website at least thirty (30)
days in advance. Licensee's continued use of the Software Support
and Upgrades thereafter constitutes Licensee's acceptance of the
prices and/or charges as modified by Ugetweb.
- Warranty.
ALL SERVICES AND SOFTWARE OF UGETWEB ARE PROVIDED "AS IS,"
WITHOUT WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, EITHER IN
FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE (INCLUDING
BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE OR USE AND NONINFRINGEMENT). UGETWEB DOES
NOT WARRANT THAT THE SOFTWARE WILL BE DELIVERED OR PERFORM ERROR-FREE
OR WITHOUT INTERRUPTION. LICENSEE'S USE OF THE SOFTWARE IS AT
LICENSEE'S OWN RISK.
- General.
Ugetweb shall not be liable for any failure or delay in performance
under these Support Terms due to causes beyond its reasonable
control. Any illegal or unenforceable provision shall be severed
from these Support Terms. Licensee agrees that any information
received pursuant to these Support Terms shall be deemed to be
subject to the non-disclosure obligations set forth in the License
Agreement. Licensee’s obligation of payment of moneys due to Ugetweb
under these Support Terms shall survive termination of these Support
Terms or the License Agreement. These Support Terms state the
entire agreement regarding Ugetweb’s provision of Support Services
to Licensee and may be amended only by a written amendment set
forth on a separate document executed by authorized representatives
of both parties.
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