License and Service Agreement:
ATTENTION! Important: Carefully read the following terms and conditions that govern the PHO 16 EXPRESS as a Service (Service). By using this Service and related hosted services, you (the "Licensee") are consenting to the terms of this agreement and accepting that they will be legally binding on You and any end user who may obtain this Service through You or Your company. If You do not agree to the terms of this agreement, you may not use the Service.
1. DEFINITIONS. Throughout this document, "Service" refers to items written by PHO 16 EXPRESS (Provider) and hosted services, Provider’s documentation, and/or all other files included in the PHO 16 EXPRESS total software package. “You” or “Licensee” means the natural person or the entity that is agreeing to be bound by this agreement, and any employees and third-party contractors that provide services to You. You shall be liable for any failure by such employees and third-party contractors to comply with the terms of this agreement.
2. LICENSE. In consideration of payment of the license subscription fee for the use of the Service, you may use the Service in accordance with the following:
a. Each registered user at your location may use the Service on any single device at a time; PHO 16 EXPRESS software hosted Service for data input, backup, and storage.
b. CAVEAT. As Licensee you will have the right to periodically delete data and/or records that are stored in your account. However, the data and the records that are deleted by you throughout the year will not be deleted from Provider’s system. Provider is legally obligated to maintain transactional data for governmental review, or inspections. Also, certain functions of the software like the Customer Loyalty Manager and other data managerial features may not function properly, or function at all.
Rights not expressly granted by this section are reserved to Provider.
3. RESTRICTIONS ON USE. You may not:
a. permit other individuals to use the Service except under the terms listed herein;
b. modifies, translate, reverse engineer, de-compile, disassemble (except to the extent applicable laws specifically prohibit such restriction) or create derivative works based on the Service;
c. attempt to gain unauthorized access to the hosted services, cloud or related Provider systems or networks;
d. use the Service or other Provider hosted services or cloud in any manner that is not in accordance with applicable documentation and all applicable laws and government regulations;
e. rent, lease, grant a security interest in or otherwise transfer rights to the Service;
f. nor, remove any proprietary notices or labels displayed in the Service or on its output.
4. OWNERSHIP. Title, ownership rights, and intellectual property rights in the Service shall remain in Provider. The Service is protected by copyright laws and treaties. Title and related rights in the content that may be accessed through the Service or hosted services is the property of the applicable content owner and may be protected by law. This license gives You no rights to such content except for Your data that You upload and store.
5. TERM. The Service and related hosted services are delivered electronically via a secure web site, and delivery is deemed complete when the Service is first made available to You. The license is effective until terminated. You may terminate the license at any time by canceling payment renewal of the Service license subscription fee. The license will terminate automatically if You fail to comply with the limitations described in this agreement or You fail to pay the license fee. For example, if You make modifications to the Service or a regularly scheduled subscription fee is not paid by the due date, the terms of this agreement are violated and this license shall be terminated immediately.
6. DISCLAIMER. The Service is provided “as is” and without warranty of any kind. No dealer, agent or employee of PROVIDER is authorized to make any warranty regarding the Service. PROVIDER AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SERVICE. THE LICENSOR AND ITS SUPPLIERS MAKE NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO ANY OTHER MATTERS, INCLUDING NON-INFRINGEMENT OF THIRD-PARTY RIGHTS OR MERCHANTABILITY, FITNESS OR SATISFACTORY QUALITY FOR ANY PARTICULAR PURPOSE. THE TERMS OF THIS SECTION SURVIVE THE TERMINATION OF THIS AGREEMENT IRRESPECTIVE OF THE CAUSE OF THE TERMINATION, BUT DO NOT IMPLY OR CREATE ANY CONTINUED RIGHT TO USE THE SERVICE AFTER TERMINATION OF THE AGREEMENT.
7. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE SHALL PROVIDER OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ALL OTHER COMMERCIAL DAMAGES OR LOSSES. IN NO EVENT WILL PROVIDER BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE AMOUNT PROVIDER RECEIVED FROM YOU FOR A LICENSE TO USE THE SERVICE, EVEN IF PROVIDER SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. PROVIDER AND ALL OTHER PARTIES INVOLVED IN THE DEVELOPMENT OF THE SERVICE ARE NOT RESPONSIBLE FOR ANY ERRORS, AND/OR FINANCIAL LOSSES, AND/OR PROBLEMS, AND/OR LOSS OF CLIENTS, AND/OR LOSS OF INFORMATION AND/OR DIFFICULTIES THE USERS OF THE SERVICE MAY EXPERIENCE AS A RESULT OF ITS USE. ALL CALCULATIONS THE SERVICE PERFORMS (INCLUDING, BUT NOT LIMITED TO CALCULATIONS RELATING TO TICKET/SALES INFORMATION, AND/OR TAXES, AND/OR CLIENTS, AND/OR TOTALS, AND/OR SERVICES, AND/OR PRODUCTS, ARE FOR REFERENCE ONLY. ALL CALCULATIONS SHOULD BE PERFORMED AND VERIFIED BY MEANS INDEPENDENT OF THE SERVICE.
You assume full responsibility for the selection and suitability of the Service, for its use, and for the results obtained from the Service program.
8. PRODUCT SUPPORT. Provider intends to provide advisory support to customers following delivery of the PHO 16 EXPRESS and license, the Provider is not obligated to provide such support and customers and/or any other users of the Service are not guaranteed such support. The support policies and practices of Provider are subject to change without notice or obligation and may be viewed at the following website: http://www.pho16express.com. The Licensee is solely responsible for applying to its activities any customer support information provided by the Service and for any consequences thereof. NOTICE: For the purpose of Notice under this License and Service agreement, notice can be made to Provider electronically by email through Provider’s website, or by written notice, certified mail, at Provider’s business address as listed on Provider’s website, or by facsimile at Provider’s fax telephone number listed on Provider’s website. Licensee is responsible to furnish Provider with contact information and to keep said information updated.
9. AUTOMATED CREDIT CARD CHARGE AUTHORIZATION. If You have signed up to have Your credit card charged for support services or subscription service, You hereby authorize Provider, to initiate monthly credit card debit entries for payment and to initiate, if necessary, electronic credit entries and adjustments for any monthly credit card entries in error to said account and the credit card listed above to electronically debit and/or electronically credit the same to such account for the services You receive from PHO 16 EXPRESS. You agree to allow PHO 16 EXPRESS to electronically debit Your credit card for payment for PHO 16 EXPRESS services when due. This authorization is to remain in effect until revoked by You by contacting PHO 16 EXPRESS and until PHO 16 EXPRESS actually receives such notice. You agree that PHO 16 EXPRESS shall be fully protected in drawing any such monthly credit card debit or credit. PHO 16 EXPRESS reserves the right to cancel the monthly credit card payment program entirely or with respect to a particular credit card 30 days after notification. You understand that if any such monthly credit card payment does not clear, and any amounts due PHO 16 EXPRESS are not paid the PHO 16 EXPRESS service may be subject to termination.
10. GOVERNING LAW. This license agreement, including its Limited Warranty provisions, shall be governed by the laws of the State of Texas. All disputes arising under this agreement shall be resolved in the applicable state or federal courts of Florida. The parties’ consent to the jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defenses otherwise available.
11. VALIDITY OF PROVISIONS. If any provision or provisions of this Agreement shall be held to be invalid, illegal, and unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
12. INTEGRATION. This agreement constitutes the entire understanding of the parties and is intended as the final expression of their agreement.
Last Edition September – 23, 2021