GiftWorks End User License Agreement (EULA)
GiftWorks Software License Agreement
Software is defined as the GiftWorks computer program with which this Software License Agreement (the “Agreement”) is included and any updates or maintenance releases thereto. The use by you of any services or content accessible through the Software may be subject to your acceptance of separate agreements with GiftWorks or third parties. This Agreement applies to all versions of the Software and other branded or customized versions unless otherwise agreed. Do not use the Software until you have carefully read the following Agreement. This Agreement sets forth the terms and conditions for licensing of the Software from GiftWorks to you, and installing and using the Software indicates that you have read and understand this Agreement and accept its terms and conditions. If you purchased the Software from a retail store or directly from GiftWorks or other GiftWorks-authorized distribution channel, and do not agree with this Agreement, promptly return the Software and accompanying items to the place of purchase, or as provided below, within thirty (30) days of purchase with a dated receipt for a full refund. If the Software was pre-installed on your computer or disks came packaged with your computer at no extra charge, and if you do not agree with this Agreement, do not use the Software.
Server – A single computer wholly owned, rented or leased by a single individual or entity on which one or more applications load and execute Software in the memory space of that computer so that one or more users may access it.
License and Certain Restrictions
If this Agreement is included with the trial version of the Software, you are granted a limited non-exclusive license to use one copy of the enclosed Software for the specified period of time in the materials accompanying the trial versions of the Software. Thereafter, you may purchase the right to use the appropriate full version of the Software which license terms are specified below, by contacting GiftWorks or your retailer. You may not copy the printed materials accompanying the Software, if any, or print multiple copies of any user documentation. BY YOUR USE OF THE TRIAL VERSION OF THE SOFTWARE YOU UNDERSTAND AND AGREE THAT AFTER THE TRIAL PERIOD OF SUCH SOFTWARE, YOU MAY NOT BE ABLE TO CONTINUE TO ACCESS AND/OR USE THE SOFTWARE OR ANY DATA YOU HAVE ENTERED INTO SUCH SOFTWARE UNLESS YOU PURCHASE THE APPROPRIATE FULL VERSION OF THE SOFTWARE.
If you purchased the full version of the Software, you are granted a limited non-exclusive license to: (i) use copies of the enclosed Software on as many computers as the number of licenses you purchased, to be used by your owners, employees or contractors (note: if Software is installed on a Server, Software may only be accessed and used by as many computers as the number of licenses you purchased); (ii) place a copy of your company’s Software data file on a network for use by such computers; and (iii) make additional copies of the printed materials accompanying the Software, if any, and/ or print additional copies of any online user documentation located in the Software; provided, however, that you must have purchased accompanying licenses for each computer who will have access to the Software or the Software data file. Registration of the Software with GiftWorks in accordance with GiftWorks’ then-current privacy policies is required.
This Agreement applies to updates, supplements, add-on components, or Internet-based services components, of the Software that GiftWorks may provide to you or make available to you after the date you obtain your initial copy of the Software, unless they are accompanied by separate terms. GiftWorks reserves the right to discontinue Internet-based services provided to you or made available to you through the use of the Software.
Making additional copies of the Software, or enabling others to use your software key(s), if any, is strictly prohibited. It is also prohibited: (a)to give copies to a person who has not purchased the appropriate license for the Software from GiftWorks; (b) to disclose interfaces to the Software; (c) to install the Software on computers used by individuals who have not purchased the appropriate licenses for the Software from GiftWorks; or (d) to duplicate the Software by any other means including electronic transmission. The Software in its entirety is protected by copyright laws. The Software also contains GiftWorks trade secrets, and you may not decompile, reverse engineer, disassemble, or otherwise reduce the Software to human-perceivable form or disable any functionality which limits the use of the Software. You may not modify, adapt, translate, rent, or sublicense (including offering the Software to third parties on an applications service provider or time-sharing basis), assign, loan, resell for profit, or distribute the Software, disk(s), or related materials or create derivative works based upon the Software or any part thereof. You may not network the Software, except to the extent you have purchased license(s) as referenced above. You may not copy or modify the Software in whole or in part, or use trade secret information contained in the Software to develop software to interface with the Software, except as permitted in license(s) you may have obtained from a Software Development Kit provided by GiftWorks.
Consent to Use of Data
You agree that GiftWorks and its affiliates may collect and use technical information gathered as part of the product support services provided to you, if any, related to the Software. GiftWorks may use this information solely to improve its products or to provide customized services or technologies to you and will not disclose this information in a form that personally identifies you.
Termination and Use of Software
This Agreement may be terminated by GiftWorks immediately and without notice if you fail to comply with any term or condition of this Agreement or for any reason or for no reason in GiftWorks’ sole discretion. Upon such termination, you must immediately destroy all complete and partial copies of the Software, including all backup copies.
From time to time, GiftWorks may change the terms and conditions of this Agreement in its sole discretion. GiftWorks will notify you of any such change, and such change will be effective 30 days from the date of such notification, unless a shorter period is required due to legal, regulatory, security or other time-sensitive factors. In addition, GiftWorks may also add additional requirements for continued use of this Software, and such requirements may include, but are not limited to, monthly, annual or other periodic or transactional payments or fees payable to GiftWorks for continued use of this Software. For the latest version of this Agreement, go to http://www.giftworksconnect.com/end-user-license-agreement/, or such other site designated by GiftWorks. Your continued use of this Software following the designated effective date of such change will indicate your agreement to the change. You are encouraged to review the Agreement periodically for updates, changes and amendments. If you have any questions about the Agreement, please contact us at email@example.com.
If you are not 100% satisfied with this Software, GiftWorks’ entire liability and your exclusive remedy shall be one of the following:
(a) If you purchased the Software through a retail store or directly from GiftWorks or other GiftWorks-authorized distribution channel, either (1) return of the Software within thirty (30) days of purchase to the store where purchased with a dated receipt for a full refund (If the store is unable to issue a refund, then return the Software with a dated receipt within thirty (30) days of purchase to GiftWorks Returns, P.O. Box 8075, Lancaster, PA 17604-8075 for such refund); or (2) return the Software within thirty (30) days of purchase, with a dated receipt to GiftWorks Returns at the above address for replacement of defective disks. After thirty (30) days from the date of purchase, if the disks are defective and you would like replacement disks, so long as the version is still commercially available, you may obtain a replacement by sending your defective disks and a check for the applicable amount, plus applicable tax, to GiftWorks as follows: twenty dollars ($20) for the first replacement disk, plus forty dollars ($40) for the additional replacement disk bundle.
(b) If the Software was pre-installed on your computer when you bought it, or if disks came packaged with your computer at no extra charge, and the Software is defective or was installed improperly, you may obtain replacement disks from the company that manufactured your computer, at its option, by sending your request stating the nature of the problem, plus a copy of your dated receipt for the computer on which the Software was installed, to the manufacturer of the computer.
(c) If you obtained the Software by downloading it on your computer, and the Software did not install properly, contact the provider of the download site.
Disclaimer Of Warranties
EXCEPT AS PROVIDED ABOVE, THIS SOFTWARE AND ANY RELATED SERVICES OR CONTENT ACCESSIBLE THROUGH THE SOFTWARE ARE PROVIDED “AS-IS,” AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GIFTWORKS DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, REGARDING THIS SOFTWARE, DISKS, RELATED MATERIALS AND ANY SUCH SERVICES OR CONTENT, INCLUDING THEIR FITNESS FOR A PARTICULAR PURPOSE, THEIR QUALITY, THEIR SECURITY, THEIR MERCHANTABILITY, OR THEIR NONINFRINGEMENT. GIFTWORKS DOES NOT WARRANT THAT THE SOFTWARE OR ANY RELATED SERVICES OR CONTENT IS FREE FROM BUGS, VIRUSES, ERRORS, OR OTHER PROGRAM LIMITATIONS, NOR DOES GIFTWORKS WARRANT ACCESS TO THE INTERNET OR TO ANY OTHER SERVICE OR CONTENT THROUGH THE SOFTWARE OR CONTINUED ACCESS TO THE TRIAL VERSION OF THE SOFTWARE OR TO THE DATA ENTERED INTO THE TRIAL VERSION OF THE SOFTWARE AFTER THE SPECIFIED NUMBER OF ALLOWED USES. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO SIXTY (60) DAYS FROM THE DATE OF PURCHASE OF THE SOFTWARE. HOWEVER, SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS AS WELL, WHICH VARY FROM STATE TO STATE.
Limitation Of Liability And Damages
THE ENTIRE LIABILITY OF GIFTWORKS AND ITS REPRESENTATIVES (AS DEFINED BELOW) FOR ANY REASON SHALL BE LIMITED TO THE AMOUNT PAID BY THE CUSTOMER FOR THE SOFTWARE UNLESS OTHERWISE AGREED IN WRITING BY GIFTWORKS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GIFTWORKS AND ITS SUBSIDIARIES, AFFILIATES, LICENSORS, PARTICIPATING FINANCIAL INSTITUTIONS, THIRD-PARTY CONTENT OR SERVICE PROVIDERS, DISTRIBUTORS, DEALERS, OR SUPPLIERS (“REPRESENTATIVES”) ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO: DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR INVESTMENT, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF GIFTWORKS OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME STATES DO NOT ALLOW THE LIMITATION AND/OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN GIFTWORKS AND YOU. GIFTWORKS WOULD NOT BE ABLE TO HAVE PROVIDED THIS SOFTWARE OR SERVICES WITHOUT SUCH LIMITATIONS.
The Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995) and the Department of Defense Federal Acquisition Regulations Sections 252.227-7014 (a) (1) – (5). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227-7202-1 through 227-7202-4 (JUNE 1995), all U.S. Government End Users acquire the Software (or Licensed Product) with only those rights set forth herein.
This Agreement is subject to United States export laws and regulations controlling the export, re-export, and resale of the Software (collectively, “U.S. Export Controls”). These U.S. Export Controls include the United States Export Administration Act and the United States Department of Commerce Export Administration Regulations. You acknowledge and agree to be responsible for compliance with these U.S. Export Controls and to not engage in any course of conduct that would be in violation of the U.S. Export Controls. Not by way of limitation of the foregoing, your shall not license,export, re-export, or resell the Software in violation of U.S. Export Controls: (i) into (or to a national resident of) Cuba, North Korea, Iran, Syria, or any other country to which the U.S. has embargoed, proscribed, or restricted goods, presently listed by the United States Department of Commerce at http://www.bis.doc.gov/policiesandregulations/regionalconsiderations.htm; or (ii) to anyone on the U.S. Treasury Department’s List of Specialty Designated Nationals, the U.S. Commerce Department’s Unverified List, the U.S. Commerce Department’s Entity List, the U.S. Commerce Department’s Table of Deny Orders or Denied Persons List, the State Department’s Debarred List, the State Department’s Parties Subject to Nonproliferation Sanctions List, or those parties subject to a General Order 3 to Part 736 of the Export Administration Regulations, presently listed by the United States Department of Commerce at http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm. Such lists are subject to change at any time by the United States government, with or without notice to GiftWorks.
This Agreement sets forth GiftWorks’ and its Representatives’ entire liability and your exclusive remedy with respect to the Software. You acknowledge that this Agreement is a complete statement of the agreement between you and GiftWorks with respect to the Software, and that there are no other prior or contemporaneous understandings, promises, representations, or descriptions with respect to the Software.
This Agreement shall govern any services or content related to the Software, unless such services or content are subject to a separate written agreement between you and GiftWorks or its Representatives. However, the limitations of liability and disclaimer of warranties in this Agreement shall apply to GiftWorks and its Representatives with respect to such content or services except to the extent provided otherwise in a separate written agreement approved by GiftWorks between you and GiftWorks or the applicable Representative(s).
This Agreement does not limit any rights that GiftWorks may have under trade secret, copyright, patent, or other laws. This Agreement may be amended from time-to-time by GiftWorks by placing a new version on GiftWorks’ website at http://www.giftworksconnect.com, and you shall be bound by the most current version of the Agreement so posted. The Representatives of GiftWorks are not authorized to make modifications to this Agreement on a “per customer” basis, or to make any additional representations, commitments, or warranties that are binding on GiftWorks, unless in writing signed by an officer of GiftWorks. Accordingly, any such additional statements are not binding on GiftWorks and you should not rely upon such statements. If any provision of this Agreement is invalid or unenforceable under applicable law, then it is, to that extent, deemed omitted and the remaining provisions will continue in full force and effect. The validity and performance of this Agreement shall be governed by Pennsylvania law (without reference to choice of law principles), except as to copyright and trademark matters, which are covered by federal laws, and you agree that any disputes arising out of this Agreement or your purchase or use of the Software shall be subject to binding arbitration in accordance with the rules of the American Arbitration Association and held in Lancaster, Pennsylvania. If, for any reason, the foregoing arbitration clause is not enforceable, you agree that any such actions shall be brought exclusively in the state or federal courts sitting in Pennsylvania (or, at GiftWorks’ option, the state and federal courts of the state where you or your assets are located). This Agreement shall be construed as to its fair meaning and not strictly for or against either party.
GiftWorks, the GiftWorks logo, among others, are trademarks, service marks, registered trademarks and/or registered service marks of InnesFarm, Inc. in the United States and other countries. GiftWorksConnect.com, among others, are trademarks and/or service marks of InnesFarm, Inc. in the United States and other countries. Other parties’ trademarks or service marks are the property of their respective owners and should be treated as such.
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