END USER LICENSE AGREEMENT
The terms of this End User License Agreement (“Agreement”) set out below governs your use of the Nutritics software (“Software”). By clicking on the “I Accept” option while installing or downloading the Software, you agree to the terms and conditions of this Agreement. If you do not agree to all of the terms and conditions of this Agreement, immediately click on the “I DO NOT Accept” option, and do not complete the registration process.
This Agreement is entered into and accepted by and between CMC Group, Inc. (“CMC”) and you, a legal entity or natural person (“Client” or “You” or “Your”).You agree that your use of the Software acknowledges that you have read this agreement, understand it and agree to all of its terms and conditions.
- Grant of License
Subject to Your agreement to all of the terms of this Agreement, Your timely payment of the Fees, and Your compliance with all the terms and conditions set forth herein, CMC grants to You, during the Term, a non-exclusive, non-transferable right to access, install, download, and otherwise use the Software for your own internal business operations (“License”). - Fees and Payment
- The Client will keep its contact and billing information up to date with CMC. Changes to such information may be made on Client’s Billing Page within Client’s portal or by contacting info@daymarksafety.com. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided in this Agreement. All fees are due and payable in advance of the Initial Term or any Renewal Term, as applicable.
- Terms of Payment: Unless otherwise specified by CMC, terms are net thirty (30) days from the date of CMC’s invoice payable in U.S. currency; provided, however, subscription or license fees for any software Products licensed (or sublicensed) from CMC, shall be payable in advance, in U.S. currency, and for the entire subscription term, except as may be described in CMC’s sales proposal, quotation, package inserts or other Product literature. CMC has the right, among other remedies, either to terminate a purchase agreement or order or to suspend further performance with the Customer in the event the Customer fails to make any payment when due. Customer shall be liable for all expenses, including attorneys’ fees, relating to the collection of past-due amounts. If any payment owed to CMC is not paid when due, it shall bear interest at a rate of 12 percent per annum or the maximum rate permitted by law, if less than 12 percent, from the date on which it is due until it is paid. If, in good faith, CMC deems itself to be insecure with respect to Customer’s financial condition, CMC may require prepayments or other assurances for future deliveries. Customer hereby grants CMC a security interest in all Products sold to Customer by CMC, which security interest shall continue until such Products are fully paid for in cash.
- All Fees are exclusive of taxes, and Client agrees to pay any taxes applicable to the use of the Software, including any VAT taxes.
- Term
- The initial term of the Agreement (“Initial Term”) is one (1) year. The Agreement shall renew automatically thereafter for one (1) year additional periods (“Renewal Periods”), unless Client or CMC delivers a notice of non-renewal to the other party no later than thirty (30) days before the expiration of the then current Initial Term or Renewal Term, as applicable. The Initial Term together with all Renewal Terms is referred to as the “Term.”
- This Agreement may be terminated by CMC at any time, with or without cause, by written notice to the Client not less than thirty (30) days before the effective date of termination. In the event of such termination by CMC, CMC shall reimburse Client any Fees paid in advance on a prorata basis, except if such termination is for cause, in which case the Fees are nonrefundable.
- It shall be Client’s responsibility to copy or backup its data prior to any termination of this Agreement and CMC shall have no obligation to store, retrieve or deliver such data to Client after termination of this Agreement.
- License Restrictions
- Client may not distribute, extract components or make derivative works of the Software. Client shall also not copy the Software; provided, however, Client may make one copy of the Software on a permanent storage medium as an archival back-up copy.
- Client may not use, modify, translate or reproduce the Software or transfer rights to use the Software or copies of the Software in any manner except as permitted for in this Agreement.
- Client may not sell, sub-license, or lease the Software or otherwise allow someone other than Client to use the Software.
- Client may not reverse engineer, reverse compile or disassemble the Software or otherwise attempt to discover the source code of the Software.
- Client will only use the Software in the manner that complies with all applicable laws in the jurisdiction in which Client uses the Software, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.
- Copyright
The Software and all rights thereto, including without limitation proprietary rights and intellectual property rights, are owned by CMC and/or its licensors. Such rights are protected by international treaty provisions and by other applicable national laws of the country in which the Software is used. The structure, organization and code of the Software are valuable trade secrets and confidential information of CMC and/or its licensor. Any copies of the Software permitted to be made pursuant to this Agreement must contain copyright and other proprietary notices that appear on the Software. - Limited Warranty And Disclaimer
- Limited Warranty: CMC warrants that, for a period of sixty (60) days from the purchase date (“Warranty Period”), the Software will perform substantially in accordance with the Documentation. “Documentation” means the Nutritics User Guide.
- Exclusive Remedy: In case of any breach of the above Limited Warranty, CMC will (a) repair or replace the Software or (b) if such repair or replacement would in CMC’s opinion be commercially unreasonable, refund the Fees paid by Client for the Software for the Initial Term.
- Exclusion of Warranty: The above Limited Warranty will not apply if: (i) the Software is not used in accordance with this Agreement or the Documentation, (ii) the Software or any part thereof has been modified by any entity other than CMC or (iii) a malfunction of the Software has been caused by any equipment or software not supplied by CMC.
- Disclaimer: THE ABOVE WARRANTIES ARE YOUR EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, THE SOFTWARE IS PROVIDED “AS IS” AND CMC MAKES NO WARRANTY OR GUARANTEE AS TO ITS USE OR PERFORMANCE AND DOES NOT WARRANT OR GUARANTEE THAT THE OPERATION OF THE SOFTWARE WILL BE FAIL SAFE, UNINTERRUPTED OR FREE FROM ERRORS OR DEFECTS.
- Exceptions: Some jurisdictions do not allow the exclusion of express or implied warranties, so the above disclaimer may not apply to You. IN THAT EVENT, SUCH EXPRESS OR IMPLIED WARRANTIES SHALL BE LIMITED IN DURATION TO THE WARRANTY PERIOD (OR THE MINIMUM PERIOD REQUIRED BY THE APPLICABLE LAW).
- Limitation of Remedies and Damages
- under no circumstances and under no legal theory, whether in tort, contract or otherwise, shall CMC be liable for any indirect, special, incidental or consequential damages, damages for loss of profits, loss of goodwill, loss of personnel salaries, work stoppage and/or computer failure or malfunction and/or costs of procuring substitute software or services.
- Regardless of whether the claim for such damages is based in contract, tort and/or any other legal theory, in no event shall CMC’s aggregate liability to Client for direct damages exceed the lesser of:
- the amount of total Fees paid or payable for the Software giving rise to such claim during the twelve (12) months immediately preceding the event giving rise to such claim; or
- the applicable CMC list fee, as of the date of the purchase, for the Software giving rise to such claim.
- Confidentiality
To the extent that, in connection with this Agreement, CMC comes into possession of any information, trade secrets or other proprietary information relating to Client which is either designated by Client as confidential or is by its nature clearly confidential (the “Confidential Information”), CMC shall not disclose such Confidential Information to any third party without the Client’s consent. For example, but without limitation, CMC shall not disclose Client’s menu or recipe information and shall treat such information as Confidential Information. The Client hereby consents to CMC disclosing such Confidential Information (A) to legal advisors, auditors, accountants, insurers, lenders, or as may be required by law, regulation, judicial or administrative process, or in connection with potential litigation; or (B) to any person to the extent such Confidential Information (i) shall have otherwise become publicly available (including, without limitation, any information filed with any governmental agency and available to the public) other than as the result of a disclosure by CMC in breach hereof, (ii) becomes available to CMC on a non-confidential basis from a source other than Client which CMC believes is not prohibited from disclosing such information by a confidentiality obligation to Client, (iii) is known by CMC prior to its receipt from Client without any obligation of confidentiality with respect thereto, or (iv) is developed by CMC independently of any disclosures made by Client to CMC of such information. - Intellectual Property Indemnity
- Third-party claims CMC shall defend and hold Client harmless from any claim by a third party that the Software infringes the intellectual property rights of that third party, provided that: (i) CMC is notified promptly, and in any event no later than within fourteen (14) days of Client’s receipt of notice of the claim, (ii) Client provides reasonable cooperation for CMC to perform its obligations hereunder and (iii) CMC has sole control over the defense and all negotiations for a settlement or compromise of the claim. The foregoing obligation of CMC does not apply with respect to software or portions or components thereof that are: (i) not supplied by CMC, (ii) used in a manner not expressly authorized by this Agreement or the relevant Documentation, (iii) modified by anyone other than CMC, if the alleged infringement relates to such modification, (iv) combined with other products, processes or materials where the alleged infringement would not exist but for such combination, or (v) where Client continues the allegedly infringing activity after being notified thereof and provided with modifications that would have avoided the alleged infringement.
- Remedy and Liability: In the event that the Software is held by a court of competent jurisdiction to constitute an infringement or use of the Software is enjoined, CMC shall, at its sole discretion, do one of the following: (i) procure for Client the right to continue use of the Software, (ii) provide a modification to the Software so that its use become non-infringing, (iii) replace the Software with software that is substantially similar in functionality and performance or (iv) if none of the foregoing alternatives is reasonably available to CMC, refund the Fees paid by Client for the infringing Software for the then-current Initial Term or Renewal Term, as applicable. This Section 9 states CMC’s sole liability and Client’s exclusive remedy for intellectual property infringement claims.
- Marketing Material
CMC shall be permitted to use the Client’s name, service marks, logos, and/or branding in external publicity material, without Client’s further written consent, provided that CMC makes no other representations in such material than that Client is a licensee of the Software. - Miscellaneous Provisions
- Each provision or portion thereof contained in this Agreement shall be independent and separable from all of the other provisions or portions; and the invalidity of such provision or portion thereof shall in no way affect the enforceability of any of the other provisions or portions thereof.
- This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, United States, without regard to the principles of conflicts of law thereof. Any disputes arising under this Agreement shall be resolved exclusively in the state or federal courts of the State of Ohio, United States.
- This Agreement contains the entire agreement between the parties with respect to the specific subject matter hereof and supersedes all prior agreements or understandings among the parties with respect thereto.
- Any terms of this Agreement which by their nature should survive the termination of this Agreement shall survive such termination.
BY COMPLETING THE REGISTRATION PROCESS FOR THE SOFTWARE, YOU ARE AGREEING TO THE TERMS OF THIS AGREEMENT SET FORTH ABOVE.