Under this Agreement, Brismuth Apps LLC (the "Vendor") grants to the Licensee a non-exclusive and non-transferable license (the "License") to use Bulk Texter Lite or Bulk Texter Pro (the "Software").
"Software" includes the executable computer programs and any related printed, electronic and online documentation and any other files that may accompany the product.
Title, copyright, intellectual property rights and distribution rights of the Software remain exclusively with the Vendor. Intellectual property rights include the look and feel of the Software. This Agreement constitutes a license for use only and is not in any way a transfer of ownership rights to the Software.
The Software is licensed for use only by the original purchaser, or the users listed on the invoice for multi-seat licenses.
The rights and obligations of this Agreement are personal rights granted to the Licensee only. The Licensee may not transfer or assign any of the rights or obligations granted under this Agreement to any other person or legal entity. The Licensee may not make available the Software for use by one or more third parties.
The Software may not be modified, reverse-engineered, or de-compiled in any manner through current or future available technologies.
Failure to comply with any of the terms under the License section will be considered a material breach of this Agreement.
Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or validity thereof, shall be settled through arbitration in accordance with the rules of the American Arbitration Association. The place of arbitration shall be in Branson, Missouri, and the language of the arbitration shall be English.
The Licensee agrees that the remedies provided in this Agreement are exclusive and that, in the event of any breach of the Agreement by the Vendor, the Licensee's sole and exclusive remedy shall be to terminate this Agreement.
Neither party shall be liable to the other for any failure or delay in performing its obligations under this Agreement if such failure or delay is caused by events beyond its reasonable control, including but not limited to acts of nature, war, terrorism, strikes, labor disputes, embargoes, government orders, or any other force majeure event. The party affected by such an event shall promptly notify the other party in writing, providing details of the event and its expected duration. The obligations of the party invoking the force majeure event shall be suspended for the duration of the event.
The Software is provided by the Vendor and accepted by the Licensee "as is". Liability of the Vendor will be limited to a maximum of the original purchase price of the Software. The Vendor will not be liable for any general, special, incidental, or consequential damages, including but not limited to loss of production, loss of profits, loss of revenue, loss of data, or any other business or economic disadvantage suffered by the Licensee arising out of the use or failure to use the Software.
The Vendor makes no warranty expressed or implied regarding the fitness of the Software for a particular purpose or that the Software will be suitable or appropriate for the specific requirements of the Licensee.
The Vendor does not warrant that the use of the Software will be uninterrupted or error-free. The Licensee accepts that software, in general, is prone to bugs and flaws within an acceptable level as determined in the industry.
The Vendor warrants and represents that it is the copyright holder of the Software. The Vendor warrants and represents that granting the license to use this Software is not in violation of any other agreement, copyright, or applicable statute.
The FTC regulates the use of an automatic telephone dialing system (“ATDS”) to
send a recorded voice message or text. Generally speaking, in order to send ATDS-
generated text messages or recorded voice messages, the sender needs to have
either “prior express consent” or “prior express written consent” from the individual.
The level of consent required depends on the particular context, including the
message content. The Licensee agrees to only use the Software in accordance with all state and federal laws, including regulations related to the use of automatic telephone dialing systems.
Indemnity by Vendor: Vendor will defend Licensee against any claim, demand, suit, or proceeding made or brought by a third party against Licensee or its directors, officers, successors, or assigns, including reasonable attorney’s fees, to the extent arising from Vendor’s violation of the law or the unauthorized use or disclosure of Licensee’s private data resulting directly from Vendor’s breach of its obligations under this License Agreement. In addition, if Vendor believes there may be an infringement claim related to License, it may at its own discretion and at no cost to Licensee: (i) modify the software so that it is no longer believed or claimed to infringe or misappropriate, (ii) obtain the rights for the continued execution of the License, or (iii) refund a pro-rata portion of the fees paid by Licensee for the impacted License and terminate the License Agreement.
Indemnity by Licensee: Licensee will defend Vendor against any claim against Vendor or its directors, officers, successors, or assigns, including reasonable attorney’s fees, to the extent arising from Licensee’s negligence, violation of law, or breach of its obligations under the License Agreement.
The Licensee agrees to indemnify and hold harmless the Vendor and its affiliates, and their respective directors, officers, employees, and agents from and against any and all claims, liabilities, damages, losses, or expenses, including reasonable attorneys' fees and costs, arising out of or in any way connected with the use of the Software by the Licensee, including but not limited to any breach of this Agreement by the Licensee or any claim that the Software infringes any intellectual property or other rights of any third party.
All terms, conditions, and obligations of this Agreement will be deemed to be accepted by the Licensee ("Acceptance") upon execution of this Agreement.
The Parties to this Agreement submit to the jurisdiction of the courts of the State of Missouri for the enforcement of this Agreement or any arbitration award or decision arising from this Agreement. This Agreement will be enforced or construed according to the laws of the State of Missouri.
This Agreement does not create or imply any relationship in agency or partnership between the Vendor and the Licensee.
Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine gender include the feminine gender and vice versa. Words in the neuter gender include the masculine gender and the feminine gender and vice versa.
If any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, it is the parties' intent that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable, and the remainder of the provisions of this Agreement will in no way be affected, impaired, or invalidated as a result.
This Agreement contains the entire agreement between the parties. All understandings have been included in this Agreement. Representations that may have been made by any party to this Agreement may in some way be inconsistent with this final written Agreement. All such statements are declared to be of no value in this Agreement. Only the written terms of this Agreement will bind the parties.
This Agreement and the terms and conditions contained in this Agreement apply to and are binding upon the Vendor's successor and assigns.