ATTENTION! Important: the following terms and conditions govern use of the DaySmart Technology (defined in Section 1 below) made available by DaySmart Software Inc. (“DaySmart”) and its licensors and suppliers. By registering for or using the DaySmart Technology, Customer (defined in Section 1 below) hereby agrees to be bound by the terms of this 123Pet License Agreement (this “Agreement”). If Customer does not agree to the terms of this Agreement, Customer may not use the DaySmart Technology. If you are acting on behalf of another person or entity, you represent and warrant that you have the authority to bind such person or entity to this Agreement.
1. DEFINITIONS. In addition to terms defined elsewhere in this Agreement, the following terms will have the meaning ascribed below:
- “Customer” means the natural person or entity that enters into this Agreement.
- “DaySmart Technology” means the Software and Mobile App.
- “Mobile App” means the mobile application made available by DaySmart through the Apple App Store or Google Play.
- “Optional Features” means any optional, add-on hosted service offerings that are offered separately from the Software (on a one-time or subscription basis), and may be used in connection with the Software. Optional Features may include online booking, remote access, online backup, text messaging and email messaging.
- “Services” means any or all of the hosted services offered by DaySmart under a separate agreement, including any Optional Features.
- “Software” means the client management software provided by DaySmart to Customer under this Agreement, including any updates or upgrades thereto.
2. SCOPE. This Agreement applies to Customer’s and its authorized users’ access to and use of any DaySmart Technology, but does not apply to any access and use of the Services, which is subject to a separate cloud services agreement. The terms in the attached Exhibit A will apply only if Customer accesses or uses the Mobile App.
3. LICENSE TO SOFTWARE. Subject to the terms of this Agreement, DaySmart hereby grants Customer during the Term (defined in Section 9 below) a limited, non-exclusive, non-transferable, revocable, and non-sublicensable license to install and operate the Software: (a) in binary executable form only on servers operated and managed by or on behalf of Customer, (b) internally within Customer’s organization, (c) solely for Customer’s business purposes, and (d) in accordance with applicable law and any usage limitations applicable to the license purchased by Customer. Customer will be responsible for all access and use of the DaySmart Technology by its users, including for ensuring that such users comply with the terms of this Agreement.
4. LICENSE RESTRICTIONS. Section 3 states the entirety of Customer’s rights with respect to the Software, and DaySmart reserves all rights in and to the Software not expressly granted to Customer in this Agreement. Without limiting the foregoing, Customer will not do, or authorize or permit any third party to do, any of the following: (a) modify, translate, copy, adapt, reverse engineer (except to the extent applicable laws specifically prohibit such restriction), decompile, disassemble, or create derivative works based on the DaySmart Technology; (b) access or use the DaySmart Technology in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas; (c) allow unauthorized third party access to the DaySmart Technology; (d) attempt to gain unauthorized access to the DaySmart Technology or any other DaySmart customer’s account; (e) use the DaySmart Technology in any manner that is not in accordance with applicable documentation and all applicable laws; (f) rent, lease, distribute, timeshare, use as a service bureau, grant a security interest in, transfer rights to, or make available the DaySmart Technology to any third party; (g) use the DaySmart Technology to build a competitive product or service or to benchmark with a third-party product or service; or (h) remove any proprietary notices or labels displayed in the DaySmart Technology or on its output.
5. OWNERSHIP. DaySmart and its licensors and suppliers will retain all title, ownership rights and interest in and to the DaySmart Technology, including all copyright, patent, trademark, trade secret, and all other intellectual property rights of whatever nature in the DaySmart Technology. Except for the license expressly granted in Section 3 and Exhibit A, there are no other licenses granted to Customer, whether by implication, estoppel, or otherwise.
7. UPDATES. Customer authorizes DaySmart to provide updates to the DaySmart Technology, which may be provisioned automatically to the computers and devices upon which the DaySmart Technology is installed. Any software that updates, supplements or replaces the original DaySmart Technology is governed by this Agreement, unless separate license terms accompany such update, in which case those separate terms will govern if there is a conflict with this Agreement or as otherwise provided in those separate terms.
- Fees. As a condition of the license granted in Section 3, Customer will pay the fees applicable for the Software (“Fees”) as specified on DaySmart’s website. The price stated for the Software excludes all taxes and charges, unless stated otherwise. Customer is responsible for any taxes and for all other charges incidental to using the Software. DaySmart will notify Customer in advance by email if DaySmart changes the price of the Software and Customer is currently licensing the Software on monthly subscription basis. If Customer doesn’t agree to these price changes, it must stop using the Software. Any cancellation will be effective upon expiration of the current payment period for the Software.
- Payment. Customer will pay the Fees using a valid payment method acceptable to DaySmart. Customer represents and warrants that it is authorized to use any payment method it uses to pay the Fees. Customer hereby authorizes DaySmart or its third party designee to charge Customer’s designated payment method for the total amount of Fees, including any applicable taxes and other charges described via the DaySmart website. If the payment method cannot be verified, is invalid or is otherwise not acceptable to DaySmart, Customer’s order may be suspended or cancelled. Certain of the Fees may be payable on a recurring basis with auto-renewing payments (“Recurring Payments”). The billing period for each type of Recurring Payment will be as specified via the DaySmart website at the time of registration. When Customer registers for any Recurring Payments, it expressly acknowledges and agrees that (i) DaySmart (or its designated third-party payment processor) is authorized to charge Customer’s payment method on a recurring basis for the Recurring Payments (in addition to any applicable taxes and other charges) at the then-current rates, and (ii) the Recurring Payments will continue until Customer completes all related payments (i.e., under an extended payment plan) or until Customer cancels its subscription, if applicable. To cancel any subscription, Customer must contact DaySmart through the online help center (http://support.daysmart.com/) and follow the instructions in the email DaySmart sends in response to the cancellation request. Customer must cancel a subscription before the start of the next billing period in order to avoid charges for the next billing period’s Fees. Following any cancellation, Customer will continue to have access to the service or features subject to such subscription (subject to the terms of this Agreement) through the end of Customer’s current billing period. Except as specifically set forth in the DaySmart website, all Fees are non-refundable.
9. TERM; TERMINATION. The term of this Agreement commences upon DaySmart’s delivery of the Software to Customer and will remain in full force until terminated in accordance with this Section 9 (“Term”).
- Termination. Either party may terminate this Agreement upon notice to the other party, if the other party breaches any term of this Agreement, and such breach is not cured within 10 days of the breaching party’s receipt of notice thereof.
- Effect of Termination. Any rights and licenses granted to Customer under this Agreement will terminate immediately upon termination of this Agreement. Upon termination, Customer will discontinue using the DaySmart Technology and destroy all copies of the DaySmart Technology in its possession or control. Termination will not relieve Customer’s obligation to pay all Fees which are due and payable as of the date of termination. Sections 1, 5, 8(b), 9(b), 11, 12, 14, 15, and 17 will survive expiration or termination of this Agreement.
10. LIMITED WARRANTY. For a period of 90 days from the date of DaySmart’s initial delivery of the Software to Customer (“Warranty Period”), DaySmart warrants that the Software will operate in material conformity with the then-current standard documentation under normal use, only when used in connection with hardware and hardware support items (including cables, connectors, interfaces, and adaptors) purchased from DaySmart, or that meet the specifications provided by DaySmart on its website, and only when using the manufacturer’s drivers or direct (serial) connection while Microsoft Windows is operating in the following default regional setting: “English (US)” (“Limited Warranty”). If the Software does not perform in accordance with the Limited Warranty during the Warranty Period, upon written notice by Customer and DaySmart’s verification of any such nonconformity, DaySmart will use reasonable efforts to correct any deficiencies in the Software so that it performs in accordance with the Limited Warranty or, alternatively in DaySmart’s sole discretion, refund to Customer the Fees paid for the Software; provided, however, that Customer provides all information reasonably requested by DaySmart to enable it to cure the nonconformity. The foregoing remedy is Customer’s sole and exclusive remedy, and DaySmart’s sole obligation, in the event of nonconformity of the Software with the Limited Warranty. The Limited Warranty specifically excludes: (a) any hardware purchased from DaySmart or otherwise used in connection with the Software; (b) minor defects or errors not material to the core functionality of the Software; and (c) defects or deficiencies resulting from: (i) misuse of the Software; (ii) modifications to the Software not made by DaySmart; (iii) use of the Software with items not provided by DaySmart other than the hardware and operating system software for which the Software were designed; or (iv) errors, defects or deficiencies in any data or other items furnished by Customer. DaySmart will not be responsible under the Limited Warranty for correcting problems if Customer fails to implement any correction or update made available by DaySmart. If there are any defects in third-party hardware purchased from DaySmart, the manufacturer of such hardware will be solely responsible for such defects, and Customer will look solely to such manufacturer for any available remedies.
11. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 10, THE DAYSMART TECHNOLOGY IS PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS, DEFECTS AND ERRORS AND WITHOUT WARRANTY OF ANY KIND. NO DEALER, AGENT OR EMPLOYEE OF DAYSMART IS AUTHORIZED TO MAKE ANY OTHER WARRANTY REGARDING THE DAYSMART TECHNOLOGY. DAYSMART, AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS CUSTOMER MAY OBTAIN BY USING THE DAYSMART TECHNOLOGY, THAT THE DAYSMART TECHNOLOGY IS SUITABLE FOR CUSTOMER’S BUSINESS, OR THAT THE DAYSMART TECHNOLOGY CAN BE USED BY CUSTOMER IN COMPLIANCE WITH ALL LAWS APPLICABLE TO CUSTOMER’S BUSINESS. DAYSMART AND ITS SUPPLIERS DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING AS TO TITLE AND NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. ALL CALCULATIONS THAT THE DAYSMART TECHNOLOGY PERFORM (INCLUDING, BUT NOT LIMITED TO CALCULATIONS RELATING TO TICKET/SALES INFORMATION, TAXES, CLIENTS, TOTALS, SERVICES, OR PRODUCTS) ARE FOR REFERENCE ONLY, AND SHOULD BE VERIFIED BY MEANS INDEPENDENT OF THE DAYSMART TECHNOLOGY. CUSTOMER ASSUMES ENTIRE RISK AS TO THE SELECTION AND SUITABILITY OF THE DAYSMART TECHNOLOGY, FOR ITS USE IN ACCORDANCE WITH APPLICABLE LAW, AND FOR THE RESULTS OBTAINED FROM THE DAYSMART TECHNOLOGY.
12. LIMITATION OF LIABILITY.
- UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, WILL DAYSMART OR ITS SUPPLIERS OR RESELLERS HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, OR LOSS OF PROFITS, EVEN IF DAYSMART HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
- IN NO EVENT WILL THE AGGREGATE LIABILITY OF DAYSMART ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER UNDER THIS AGREEMENT.
13. PRODUCT SUPPORT. Although DaySmart may provide voluntary support to Customer in connection with the DaySmart Technology, DaySmart is not obligated to provide such support, except for specific technical support purchased pursuant to monthly subscription Fees. The support policies and practices of DaySmart are subject to change without notice or obligation and may be viewed at the following website: http://www.123petsoftware.com/policies/. Customer is solely responsible for incorporating any customer support information provided by DaySmart into its use of the DaySmart Technology and is solely responsible for any consequences thereof. Customer will be solely responsible for the accuracy and correctness of any changes to files or data made by DaySmart at Customer’s request.
14. CONFIDENTIAL INFORMATION. In connection with this Agreement, Customer may obtain or receive non-public confidential information of DaySmart, including, but not limited to the DaySmart Technology, software, processes, designs, plans, methods, data, or other non-public information of DaySmart (collectively, “DaySmart’s Confidential Information”). Customer will not use DaySmart’s Confidential Information except to exercise rights granted under this Agreement, and will not disclose DaySmart’s Confidential Information to any third party except to individuals authorized to use the DaySmart Technology on its behalf. Customer will protect DaySmart’s Confidential Information from unauthorized access, use or disclosure, including (without limitation) by binding its employees, agents, and contractors to confidentiality obligations at least as strict as those contained in this Agreement. Customer acknowledges that DaySmart’s Confidential Information, regardless of form, is, and will always remain, the sole and exclusive property of DaySmart. Customer further acknowledges that the unauthorized use of DaySmart’s Confidential Information would cause irreparable injury to DaySmart. Consequently, Customer agrees that money damages would not be a sufficient remedy for a breach of this provision, and, in addition to all other remedies to which DaySmart may be entitled, DaySmart will also be entitled to specific performance and injunctive or other equitable relief as remedies for such breach or threatened breach by Customer. Customer agrees that on request or at the termination of this Agreement, Customer will immediately return all DaySmart’s Confidential Information and any other related tangible materials to DaySmart without retaining any copies, notes or extracts thereof.
15. INDEMNIFICATION. Customer will defend, indemnify, and hold harmless, DaySmart, and its employees, officers, directors, agents, successors, assigns, representatives and third-party contractors (“Indemnitees”) from and against all claims, suits, liabilities, damages, costs, fees, expenses, losses, costs and expenses (including attorneys’ fees) arising out of or resulting from (i) breach of this Agreement by Customer, or (ii) Customer’s use of the DaySmart Technology. DaySmart will have the right to control the defense of any such claim, at Customer’s expense.
16. MODIFICATION. DaySmart reserves the right to change or modify the terms of this Agreement or any other policies related to use of the DaySmart Technology at any time and at its sole discretion by providing notice to Customer of the amended Agreement. Customer’s continued use of the DaySmart Technology following the provision of such notice constitutes Customer’s acknowledgement and agreement to such amendments.
17. GENERAL TERMS
- Governing Law. This Agreement will be governed by the laws of the State of Michigan without regard to its conflict of law principles. All disputes arising under this agreement will be resolved in the applicable state or federal courts of Michigan. 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.
- Integration. This Agreement constitutes the entire understanding of the parties and is intended as the final expression of their agreement. This Agreement supersedes any and all prior agreements, oral or written, expressed or implied, between the parties hereto with respect to the DaySmart Technology and the terms herein.
- Non-Waiver. No waiver by DaySmart of any breach of any provision hereof will constitute a waiver of that or any other provision hereof.
- Force Majeure. DaySmart will not be liable for any failure to perform its obligations arising from circumstances beyond its reasonable control, including, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, Internet service provider failure or delay, or denial of service attack.
- Notice. Except as otherwise specified in this Agreement, DaySmart will provide any required notices to Customer under this Agreement by email to the email address used by or on behalf of Customer in connection with Customer’s request to license the Software. Customer will provide any required notices to DaySmart under this Agreement by certified mail to DaySmart Software Inc., 3520 Green Court Suite 250, Ann Arbor, MI 48105. In each case, notice must be in English and will be deemed effective upon receipt.
- Severability. If any part, term or provision of this Agreement will be held illegal, unenforceable or in conflict with any law of a federal, state, or local government having jurisdiction over this Agreement, the validity of the remaining portions or provisions will not be affected thereby.
- Assignment. DaySmart may assign, transfer, or otherwise dispose of its rights and obligations under this Agreement, in whole or in part, at any time without notice to Customer. Customer may not assign this Agreement (whether directly or indirectly, by operation of law, or otherwise) or transfer any rights to use the DaySmart Technology without Customer’s prior written consent.
Exhibit A – Mobile App EULA
The terms of this Exhibit A (“EULA”) supplement the Agreement and apply only if Customer access or uses the Mobile App.
1. LICENSE. Subject to the terms and conditions of the Agreement, DaySmart grants each authorized user of Customer, during the term of this Agreement, a non-exclusive, non-sublicensable, non-transferable, revocable license to install and use one copy of the Mobile App in object code form only on a single personal device solely to use the DaySmart Technology in accordance with the terms of the Agreement. Any DaySmart software that updates, supplements or replaces the original Mobile App is governed by this Agreement unless separate license terms accompany such update, supplement or replacement, in which case such separate terms will govern in the event of a conflict with this Agreement or as otherwise provided in such separate terms.
2. LEGAL COMPLIANCE; EXPORT RESTRICTIONS. The Mobile App is subject to applicable United States export laws and regulations. Customer must comply with all applicable laws and regulations, including without limitation all applicable United States and international export laws and regulations, with respect to the Mobile App and related technology. Without limitation, Customer may not export, re-export or otherwise transfer the Mobile App or related technology, without a United States government license: (i) to any person or entity on any United States export control list; (ii) to any country subject to a United States sanctions; or (iii) for any prohibited end use.
3. U.S. GOVERNMENT LICENSE RIGHTS. If acquired by any agency of the United States government, such agency acknowledges that (i) the Mobile App constitutes “commercial computer software” or “commercial computer software documentation” for purposes of 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-3, as applicable, and (ii) such agency’s rights are limited to those specifically granted pursuant to this Agreement.
4. ACCESS TO DEVICE. The Mobile App will transmit certain data to DaySmart and its licensors and suppliers about or relating to the device in which it is installed, including information about Customer’s and its users’ access and use of the Mobile App. The information collected will be deemed User Data under the Agreement and subject to applicable terms therein.
5. ADDITIONAL TERMS APPLICABLE TO APPLE DEVICES. The following terms apply if Customer or any authorized user of Customer is installing, accessing or using the Mobile App on any device that contains Apple Inc.’s (“Apple”) iOS mobile operating system.
- Acknowledgement. Customer and DaySmart acknowledge that the Agreement is concluded solely between Customer and DaySmart, and not with Apple, and DaySmart, not Apple, is solely responsible for the Mobile App and the content thereof. Customer further acknowledges that the usage rules for the Mobile App are subject to any additional restrictions set forth in the Usage Rules for the Apple App Store Terms of Service as of the date Customer downloads the Mobile App, and in the event of any conflict, the Usage Rules in the App Store will govern if they are more restrictive. Customer acknowledges and agrees that Customer has had the opportunity to review the Usage Rules.
- Scope of License. The license granted to Customer is limited to a non-transferable license to use the Mobile App on any iPhone, iPod touch or iPad that Customer or its authorized users own or control as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.
- Maintenance and Support. Customer and DaySmart acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Mobile App.
- Warranty. Customer acknowledges that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the Mobile App. In the event of any failure of the Mobile App to conform to any applicable warranty, Customer may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the App by Customer; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. The parties acknowledge that to the extent that there are any applicable warranties, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such applicable warranty would be the sole responsibility of DaySmart.
- Product Claims. Customer and DaySmart acknowledge that as between Apple and DaySmart, DaySmart, not Apple, is responsible for addressing any claims relating to the Mobile App or Customer’s possession and use of the Mobile App, including, but not limited to: (i) product liability claims; (ii) any claim that the Mobile App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- Intellectual Property Rights. The parties acknowledge that, in the event of any third-party claim that the Mobile App or Customer’s possession and use of the Mobile App infringe that third party’s intellectual property rights, DaySmart, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under the Agreement.
- Legal Compliance. Customer represents and warrants that (i) Customer and its authorized users are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) Customer and its authorized users are not listed on any U.S. Government list of prohibited or restricted parties.
- Developer Name and Address. Any questions, complaints or claims with respect to the App should be directed to: DaySmart Software Inc., 3520 Green Court Suite 250, Ann Arbor, MI 48105 or (800) 604-2040.
- Third-Party Terms of Agreement. Customer agrees to comply with any applicable third-party terms when using the Mobile App.
- Third-Party Beneficiary. The parties acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this EULA (but not the entire Agreement), and that, upon Customer’s acceptance of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the EULA (but not the entire Agreement) against Customer as a third-party beneficiary thereof).