End User License Agreement (“Agreement”) is a binding legal contract between
you (either an individual or a legal entity) and GCC Innovative Technologies
LLC ("GCC"), a Florida limited liability corporation with its principal
office located at 1 Orlando Ave Ave, #2, Cocoa Beach, FL 32931. By installing, accessing or using the
software and any associated user manuals and other documentation provided by GCC
(“Documentation”) and Enhancements (as defined below) provided with this
Agreement (collectively, the “Software”) you (also referred to herein as
“Licensee”) will be bound by the terms of this Agreement. If you do not agree to the terms of this
Agreement, GCC is not willing to license any right to use or access the Software
to you. In such event, you may not
install, access, use or copy the Software.
APPLICATION ACCESS AND USE LICENSE
The Software is licensed to you, not sold. Except for the limited
license granted in this Agreement, GCC and its licensors retain all right,
title and interest in the Software, all copies thereof, and all proprietary
rights in the Software, including copyrights, patents, trademarks and trade
1. GRANT OF LICENSE. This Agreement grants you the following
rights, as applicable:
· License. During the term of this
Agreement, GCC grants you a nonexclusive, nontransferable, revocable (as
permitted herein) license to access and use the Software which will be hosted
by GCC. Licensee acknowledges and agrees
that GCC may use certain embedded technological and software controls to
enforce any applicable license restrictions.
· Enhancements. GCC reserves the right to upgrade, enhance, change or modify the Software
at any time in its sole discretion (“Enhancements”). Any Enhancements made
available to you by GCC, if any, will be subject to the terms of this
Agreement, except to the extent that conflicting or more restrictive provisions
are agreed upon in future agreements relating to such Enhancements.
Party Components. The Software and future
Enhancements may contain certain third party components (“Third Party
Components”) which are provided to you under terms and conditions which are
different from this Agreement, or which require GCC to provide you with certain
notices and/or information. Your use of each Third Party Component which
contains or is accompanied by its own license agreement will be subject to the
terms and conditions of such other license agreement, and not this
Agreement. Notwithstanding the
foregoing, the following terms and conditions apply to all “Third Party
Components”: (i) all Third Party Components are provided on an “AS IS” basis;
(ii) GCC will not be liable to you or indemnify you for any claims related to
the Third Party Components; and (iii) GCC will not be liable for any direct,
indirect, incidental, special, exemplary, punitive or consequential damages
with respect to the Third Party Components.
Your sole and exclusive remedy with regard to any defect, claim, or
other dispute relating to the Third Party Components is to cease use of such
Property Ownership. The Software contains material that is protected
by United States copyright and trade secret law, and by international treaty
provisions. All rights not expressly
granted to Licensee under this Agreement are expressly reserved by GCC and its
licensors. Licensee shall not modify,
remove or destroy any proprietary markings or confidential legends placed upon
or contained within the Software, the Documentation, or any related materials. All copyrights, patents, trade secrets,
trademarks, service marks, trade names, moral rights and other intellectual
property and proprietary rights in the Software shall remain the sole and
exclusive property of GCC or its licensors, as applicable.
· Beta Software. GCC may designate certain
Enhancements or new releases of the Software as “Beta Software.” Such Beta Software will not be ready for use in a
production environment. At this early
stage of development, operation of the Beta Software may be unpredictable and
lead to erroneous results. You
acknowledge and agree that: (i) the Beta Software is experimental and has not
been fully tested; (ii) the Beta Software may not meet your requirements; (iii)
the use or operation of the Beta Software may not be uninterrupted or error
free; (iv) your use of the Beta Software is for purposes of evaluating and
testing the product and providing feedback to GCC; (v) you shall inform your
employees, staff members, and other users regarding the nature of the Beta Software;
and (vi) you will hold all information relating to the Beta Software and your
use of the Beta Software, including any performance measurements and other data
relating to the Beta Software, in strict confidence and shall not disclose such
information to any unauthorized third parties.
Your use of the Beta Software shall be subject to all of the terms and
conditions set forth herein relating to the Software. You shall promptly report any errors,
defects, or other deficiencies in the Beta Software to GCC. NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT, ALL BETA SOFTWARE IS PROVIDED “AS-IS” AND “AS-AVAILABLE,” WITHOUT
WARRANTIES OF ANY KIND. You hereby waive any and all claims, now known or later
discovered, that you may have against GCC and its suppliers/licensors arising
out of your use of the Beta Software.
2. TERM. The license will commence on
the date you first use the Software or accept this Agreement, whichever is
earlier (the “Effective Date”), and shall remain in effect for one (1) year thereafter
(the “Initial Term”). Upon expiration of
the Initial Term, this Agreement shall automatically renew for successive one
(1) year terms (each a “Renewal Term”) unless either party provides notice of
termination or non-renewal no less than thirty (30) days prior to expiration of
the then-current term. The Initial Term
and any Renewal Terms are referred to herein collectively as the “Term.”
3. LIMITATIONS ON LICENSE. The license granted to you in this Agreement
is restricted as follows:
on Copying and Distribution. You may not copy or distribute the Software
except to the extent that copying is necessary to use the Software for purposes
set forth herein. You may make a single
copy of the Software for backup and archival purposes.
· Limitations on
Reverse Engineering and Modification. You may not reverse engineer, decompile,
disassemble, modify or create works derivative of the Software. You may not
alter or modify any disabling mechanism which may be resident in the Software.
Rental, and Third Party Use. You may not assign, sublicense, rent, timeshare, loan, lease or otherwise transfer the Software, or directly or
indirectly permit any third party to use or copy the Software.
Notices. You may not remove
any proprietary notices (e.g., copyright
and trademark notices) from the Software. You must reproduce the copyright and
all other proprietary notices displayed on the Software on each permitted
back-up or archival copy.
· Use in
Accordance with Documentation. All use of the Software shall be in
accordance with its then current Documentation.
with Applicable Law. You shall be solely responsible for ensuring that your use of the Software
is in compliance with all applicable foreign, federal, state and local laws,
and rules and regulations.
· Confidentiality. You acknowledge and agree the Software
and associated Documentation constitute valuable proprietary and confidential
information and intellectual property (collectively, the “Proprietary
Information”) of GCC. You may not use or
disclose the Proprietary Information without GCC’Ss prior written consent,
except disclosure to and subsequent uses by your employees and contractors who
have a need-to-know, provided such employees and contractors have executed
written agreements restricting use or disclosure of Proprietary Information
that are at least as protective as those set forth in this Agreement. You agree to use at least the same degree of
care in protecting the Proprietary Information as you use to protect your own
similar information, but in no event less than reasonable care. You acknowledge that due to the unique nature
of the Proprietary Information, GCC will not have an adequate remedy in money
or damages in the event of any unauthorized use or disclosure of its
Proprietary Information. In addition to
any other remedies that may be available in law, in equity or otherwise, GCC
shall be entitled to obtain injunctive relief to prevent such unauthorized use
or disclosure. You shall not use any information
or data disclosed by GCC in connection with this Agreement to contest the
validity of any GCC intellectual property.
Any such use of GCC’Ss information and data shall constitute a material,
non-curable breach of this Agreement.
· Software. GCC hereby warrants that for a period of
ninety (90) days from the date of delivery, the Software will operate in
substantial conformance with the Documentation.
All warranty claims not made in writing within such period shall be
deemed waived. The foregoing warranty is
solely for the benefit of Licensee and Licensee shall have no authority to
extend such warranty to any third party.
This warranty is contingent on the proper installation and use of the
Software as described in the Documentation.
Remedy. The sole and exclusive remedy of Licensee and
the sole and exclusive liability of GCC for breach of the foregoing warranties, shall be to seek repair or replacement of the
non-conforming Software or reperformance of the relevant services. In the event
that such breach cannot be remedied by repair, replacement, or reperformance,
or where a repair or replacement remedy is not applicable, GCC shall be liable
only for Licensee’s direct damages in the aggregate up to the limit provided in
this Section 4.
of Software. Except as otherwise agreed in writing by the
parties, any modification to the Software by Licensee or any other third party,
or failure by Licensee to implement any improvements or updates to the Software
as supplied by GCC shall void GCC’S warranty obligations and GCC’S warranties
under this Section 4, to
the extent any failure or error results from such modification.
5. FEES. The license fees payable to GCC
for the rights hereunder are as set forth in the separate Software Purchase Order
Form or similar ordering document provided by GCC describing the license fees
and any other fees owed by you. All amounts to be paid by Licensee hereunder
shall be due and payable thirty (30) days after Licensee’s receipt of the
invoice therefore. All payments not made
by Licensee when due shall be subject to late charges of the lesser of (i) one
and one-half percent (1.5%) per month of the overdue amount or (ii) the maximum
amount permitted under applicable law.
Licensee shall pay all sales, use and excise taxes relating to, or
under, this Agreement, exclusive of taxes based on or measured by GCC’S net
income, unless Licensee is exempt from the payment of such taxes and provides GCC
with evidence of such exemption.
· Indemnification. GCC agrees to defend and
indemnify Licensee and to hold it harmless from all damages awarded against
Licensee, and all reasonable expenses (including attorneys’ fees) incurred by
Licensee, for any claim of infringement of a third party’s U.S. patent
registered as of the Effective Date or copyright asserted against Licensee by
virtue of Licensee’s authorized use of the Software as delivered by GCC;
provided that GCC is given prompt notice of any such claim and right to control
and direct the investigation, preparation, defense and settlement of each such
claim and further provided that Licensee shall fully cooperate with GCC in
connection with the foregoing. Notwithstanding the foregoing, GCC assumes no
liability or indemnity obligation for claims of infringement of intellectual
property rights arising from (i) use of the Software in combination with non-GCC
approved third party products, including hardware and software, (ii)
modifications or maintenance of the Software by a party other than GCC, (iii)
misuse of the Software, and (iv) failure of Licensee to implement any
improvement or updates to the Software, if the infringement claim would have
been avoided by the use of the improvement or updates. Licensee shall indemnify and
defend GCC and hold it harmless from and against any claims, damages, or costs,
including reasonable attorneys’ fees, asserted by third parties arising out of any
of the foregoing exceptions; provided that Licensee is given prompt notice of
any such claim and right to control and direct the investigation, preparation,
defense and settlement of each such claim and further provided that GCC shall
fully cooperate with Licensee in connection with the foregoing.
· Replacement. Should the Software as delivered by GCC
become or, in GCC’S opinion, be likely to become, the subject of a claim of
infringement, GCC may, at its option and expense either (a) procure for Licensee
the right to continue to use the Software as contemplated hereunder, or (b)
replace or modify the Software and/or modify its use to make its use hereunder
noninfringing, without loss of material functionality. If neither option is
reasonably available to GCC, then this Agreement may be terminated at the
option of either party hereto without further obligation or liability. In the event of such a termination, GCC shall
refund to Licensee a pro rata portion of the license fees paid in advance for
the Software based on the remaining term of this Agreement.
Liability. THE FOREGOING PROVISIONS OF THIS SECTION 7 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF LICENSOR AND
THE EXCLUSIVE REMEDY OF LICENSEE AND ANY OTHER ENTITY, WITH RESPECT TO ANY
ALLEGED INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
of Agreement. Without prejudice to any other rights, GCC may terminate this
Agreement on thirty (30) days prior written notice if you fail to comply with
any of the terms and conditions of this Agreement and fail to cure the failure
within the foregoing period, provided that GCC shall be entitled to immediately
terminate this Agreement without notice in the event you breach the license
terms and restrictions set forth in Section 1 or
Section 3, of
the confidentiality obligations under this Agreement.
for Convenience. You may terminate this Agreement at any time
by discontinuing use of the Software, complying with your termination
obligations set forth below, providing GCC written notice, and returning the Software
Termination Obligations. In the event of any expiration or termination of this Agreement for
any reason, you must remove all copies of the Software and all of its
components from all of your systems, and destroy all related media and Documentation,
if any. The license granted to the Software
will automatically terminate on expiration or termination of this Agreement.
AS PROVIDED IN SECTION 4 (LIMITED
WARRANTIES), THE APPLICATION AND MAINTENANCE SERVICES ARE PROVIDED ON AN “AS
AVAILABLE,” “AS IS” BASIS. TO THE
MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR AND ITS LICENSORS DISCLAIM ALL
WARRANTIES WITH RESPECT TO THE APPLICATION AND MAINTENANCE SERVICES, INCLUDING,
BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE,
MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND FITNESS FOR A
PARTICULAR PURPOSE. LICENSOR DOES NOT
WARRANT THAT THE
APPLICATION WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF
THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE
APPLICATION WILL BE CORRECTED. NO ORAL
OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR SHALL CREATE ANY ADDITIONAL LICENSOR
WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF LICENSOR’S OBLIGATIONS
LICENSOR MAKES NO WARRANTY OF ANY KIND, WHETHER
EXPRESS OR IMPLIED WITH REGARD TO ANY, HARDWARE, PRODUCTS, SOFTWARE, OR
PROGRAMMING OBTAINED BY LICENSOR FROM THIRD PARTIES (COLLECTIVELY, THE “THIRD
PARTY ITEMS”). LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND
IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, TITLE/NON-INFRINGEMENT, QUALITY OF
INFORMATION, QUIET ENJOYMENT, AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD
TO THE THIRD PARTY ITEMS. LICENSOR
SHOULD CONSULT THE RESPECTIVE VENDORS/MANUFACTURERS OF THE THIRD PARTY ITEMS
FOR WARRANTY AND PERFORMANCE INFORMATION.
THE APPLICATION MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER
THE INTERNET. YOU ACKNOWLEDGE AND AGREE
THAT LICENSOR DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT: (I) VIRUSES,
WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II)
UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE
YOUR DATA, WEB‑SITES, COMPUTERS, OR NETWORKS. LICENSOR SHALL NOT BE RESPONSIBLE FOR SUCH
ACTIVITIES. YOU ARE SOLELY RESPONSIBLE
FOR THE SECURITY AND INTEGRITY OF YOUR DATA AND SYSTEMS.
Legal Compliance – No Fair Credit Reporting Act Use. Licensee acknowledges that (i) GCC does not monitor the
content of the information passing through the Services for purposes of
verifying accuracy or legal compliance, (ii) Customer shall use
commercially reasonable efforts to ensure that the information it and its
Authorized Users transmit thereby complies with all applicable laws and
regulations, whether now in existence or hereafter enacted and in force,
(iii) GCC is not a credit reporting agency under the Fair Credit
Reporting Act (FCRA) and the software Services are that of presenting
information from a Customer’s internal records and third-parties for
convenience and not for any permitted use or other purpose covered under the
FCRA, (iv) GCC disclaims any liability from business development and
opportunity pursuit decisions made utilizing the Services and ProDashTM.
9. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO
EVENT SHALL LICENSOR OR ITS SUPPLIERS/LICENSORS BE LIABLE TO YOU OR ANY THIRD
PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, INDIRECT DAMAGES,
OR ANY OTHER DAMAGES, WHICH SHALL INCLUDE, WITHOUT LIMITATION, DAMAGES FOR
PERSONAL INJURY, LOST PROFITS, LOST DATA AND BUSINESS INTERRUPTION, ARISING OUT
OF THE USE OR INABILITY TO USE THE APPLICATION, EVEN IF LICENSOR HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (WHETHER SUCH DAMAGES ARISE IN
CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE). IN ANY CASE, THE ENTIRE LIABILITY OF LICENSOR
AND ITS SUPPLIERS/LICENSORS UNDER THIS AGREEMENT FOR ALL DAMAGES OF EVERY KIND
AND TYPE (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE),
OR OTHERWISE) SHALL BE LIMITED TO THE INITIAL LICENSE FEE PAID BY YOU, IF ANY,
FOR THE APPLICATION.
Some states do not allow the exclusion of
incidental or consequential damages, or the limitation on how long an implied
warranty lasts, so some of the above may not apply to you.
10. COMPLIANCE AND AUDIT. If requested by GCC, Licensee will submit an annual certification,
signed by an officer or authorized representative, specifying the number of
users and, if applicable, number and location of all copies of the Software in
Licensee’s possession or use. GCC may also, once annually, upon
reasonable notice and during regular business hours, gain access to Licensee’s
facilities and systems to audit compliance with the license restrictions set
11. INDEMNITY. You agree to indemnify, defend and hold
harmless GCC and its parent and their respective officers, directors,
shareholders, agents, affiliates, and licensors from and against any and all
third party claims of any kind (along with attorney’s fees and litigation
costs) arising out of, resulting from, or in connection with your breach of
this Agreement or your use or misuse of the Software, including any combination
of the Software with any hardware, software, or other intellectual property not
provided by GCC.
12. GOVERNING LAW. This Agreement is governed by and construed
in accordance with the laws of the State of Florida, as applied to agreements entered into and
wholly performed within Florida between Florida residents. This Agreement shall not be governed by the
1980 U.N. Convention on Contracts for the International Sale of Goods. Any action or proceeding brought by either
party hereto shall be Brevard County, Florida, and the parties submit to the in
personam jurisdiction of such courts for purposes of any action or proceeding.
· This Agreement constitutes the entire understanding and agreement
between GCC and you with respect to the transactions contemplated in this
Agreement and supersedes all prior or contemporaneous oral or written
communications with respect to the subject matter of this Agreement, all of
which are merged in this Agreement. In
particular, if you are a current licensee of the Software, this Agreement shall
supersede your existing license agreement and that agreement shall be of no
further force or effect.
· This Agreement shall not be modified, amended or in any way altered
except by an instrument in writing signed by authorized representatives of both
· In the event that any provision of this Agreement is found invalid or
unenforceable pursuant to judicial decree, the remainder of this Agreement
shall remain valid and enforceable according to its terms. Any failure by GCC to strictly enforce any
provision of this Agreement will not operate as a waiver of that provision or
any subsequent breach of that provision.
· Neither party shall assign this Agreement without the written consent
of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, either party
may assign this Agreement, without the other party’s consent, to any Affiliate
or subsidiary, or in the event of a merger, acquisition, or sale of all or
substantially all of its assets. “Affiliate” means any entity that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with the party.
· Except for Licensee’s payment obligations, neither party will be
liable for any failure or delay in performance under this Agreement which is
due to any event beyond the reasonable control of such party, including without
limitation, fire, explosion, unavailability of utilities or raw materials,
unavailability of components, labor difficulties, war, riot, act of God, export
control regulation, laws, judgments or government instructions.
· The following provisions shall survive any termination or expiration
of this Agreement: Sections 3 (Limitations
on License), 8 (Termination)
, 10 (Limitation
of Liability), 11 (Indemnity), 13 (Governing
Law), 14 (General),
and 15 (U.S.
Government Rights). GCC may assign any
of its rights or obligations hereunder as it deems necessary.
· IT IS
EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS
DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF
LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT.
14. U.S. GOVERNMENT RIGHTS. The Software is commercial computer software
as described in DFARS 252.227-7014(a)(1) and FAR
2.101. If acquired by or on behalf of
any the Department of Defense (“DOD”) or any component thereof, the U.S.
Government acquires this commercial computer software and/or commercial
computer software Documentation subject to the terms of this Agreement as
specified in DFARS 227.7202-3, Rights in Commercial Computer Software or
Commercial Computer Software Documentation.
If acquired by or on behalf of any civilian agency, the U.S. Government
acquires this commercial computer software and/or commercial computer software Documentation
subject to the terms of this Agreement as specified in FAR 12.212, Computer
15. AUTHORIZATION. By downloading, installing,
accessing, or using the Software, you indicate that you have the authority to
bind yourself and your organization to the terms of this Agreement.