KOOLER ICE MACHINE MANAGEMENT SOFTWARE AGREEMENT
This Management Software Agreement ("MSA") is a legal agreement between you (either an individual or a single entity) and Kooler Ice, Inc., ("KI"), owner of the Machine Management Software (hereinafter referred to as "Software"). The Kooler Ice Machine Management Website (the "Site") is an internet site provided by KI subject to your compliance with the terms and conditions set forth below.
PLEASE READ THIS DOCUMENT CAREFULLY BEFORE ACCESSING OR USING THE SITE OR THE SOFTWARE. BY ACCESSING OR USING THE SITE OR THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR USE THE SITE.
KI MAY MODIFY THIS AGREEMENT AT ANY TIME, AND SUCH MODIFICATIONS SHALL BE EFFECTIVE IMMEDIATELY UPON POSTING OF THE MODIFIED AGREEMENT ON THE SITE.
YOU AGREE TO REVIEW THE AGREEMENT PERIODICALLY TO BE AWARE OF SUCH MODIFICATIONS AND YOUR CONTINUED ACCESS OR USE OF THE SITE AND SOFTWARE SHALL BE DEEMED YOUR CONCLUSIVE ACCEPTANCE OF THE MODIFIED AGREEMENT.
a. Site Access and Payment Options. In order to access the Site and use the Software, you must have paid all License Fees owed to Kooler Ice, Inc. ("License Fee") and pay the Site Fee. The Site Fee can be paid by: (1) pay an annual fee ("Annual Fee") of $390.00 paid before Site usage in which case you will be entitled to "Annual Usage"; or (2) pay a monthly fee of $35.00 ("Monthly Fee") due the first day of each calendar month in which case you will be entitled to "Monthly Usage."
b. Loss of Site Access. If the Annual Fee is not paid prior to the first use of the Site or within ten (10) days of the Renewal Period Commencement Date, then you shall no longer have right or access to the Site and/or the Software. If the Monthly Fee is not paid within three (3) days of the first day of each calendar month, then you shall no longer have right or access to the Site and/or the Software.
c. Free Trial Period. If you are an Owner who purchased the compatible equipment for the Site, you may use the Site without charge for 10 days on an evaluation basis. Free trial periods apply at time of purchase of KI machine with compatible equipment if requested. After 10 days, you must pay the Site Fee in order to continue using the Software and the Site.
d. Initial Sign-up Period. Upon the expiration of your free trial period, access to your account will be locked until such time that the Annual Fee or the Monthly Fee is paid. Your account will be immediately available upon payment.
e. Activation Time for Sign-up Periods. Your Initial Sign-up Period if you choose to pay the Monthly Fee will be the first month for which you pre-paid the use of the Site and Software. Your Initial Sign-up Period if you choose to pay the Annual Fee shall be the calendar year starting with the day that the Annual Fee was pre-paid and ending with the three hundred and sixty-fifth (365th) day thereafter. You will be notified that your account has expired or will expire within fifteen days of the date that the Initial Sign-up Period or the Renewal Period expires. Notification will be sent through the message center on the Site (located on the main page after logging in).
f. Renewal Period. Upon expiration of the Initial Sign-up Period and if your License Fee and Site Fee are not be paid, your access to your account will be locked until such time that the Annual Fee/Monthly Fee and the License Fee is paid. The Annual Fee and the Monthly Fee is subject to increase or decrease at the discretion of KI.
g. Election to Renew. Renewal periods are not required. You may discontinue use of the Software and Site at any time. You can elect to renew your Annual Usage by paying the Annual Fee within ten days prior to the date that the Annual Usage term expires. If you pay the Renewal Fee, the day after the Annual Usage term expires shall be the Renewal Period Commencement Date.
h. Additional Users. As long as the Monthly Fee or the Annual Fee is paid and your License Fees are current, you may add an additional 2 users under your name, subject to the same terms and conditions of this MSA.
i. Agreement to Terms Through Payment. When a payment transaction is processed on the Site, through your Site Account, whether the transaction result is successful or not, you are agreeing to the Terms and Conditions herein. You agree that any credit or debit card payments are processed not by KI but by a Third Party Processing Company.
j. Change of Fees. KI, in its sole, absolute and unfettered discretion, reserves the right to change any Monthly or Annual Fees charged for the Software or use of the Site at any time. In the event of an increase in a Fee, that Fee will become payable from the earlier of: (1) Within 7 days after a Notice in respect of the fee is posted on this Site or given to you; or (2) Upon your entry into a new agreement or the renewal of a term, whichever date is earlier.
k. Refund of Fees. No refund of Monthly Fees is offered on monthly usage access terms. Annual usage access which is terminated prior to the completion of the annual term will be refunded at a prorated percentage of your Annual Fee usage minus twenty percent of the Annual Fee.
a. Access. By payment as described herein, KI grants you non-exclusive access to the Site and the Software through your Account upon the terms and conditions set forth herein.
b. Support Services. KI will provide you with Support Services (technical help) related to the Site and the Software as long as you are in compliance with this Agreement. The use of Support Services is governed by KI. Support Services is provided through electronic mail. Limited phone support may be provided as deemed necessary by KI. Any supplemental software code provided to you as part of the Support Services shall be considered a part of the Software and Site and subject to the terms and conditions of this MSA.
c. Intellectual Property Rights. The entire contents of the Site and Software are protected by international copyright and trademark laws. The owner of the copyrights and trademarks is KI, its affiliates or other third party licensors.
YOU MAY NOT MODIFY, COPY, REPRODUCE, REPUBLISH, UPLOAD, POST, TRANSMIT, OR DISTRIBUTE, IN ANY MANNER, THE MATERIAL ON THE SITE, INCLUDING PICTURES, GRAPHICS, CODE AND/OR SOFTWARE.
You may print and download portions of the material from the different areas of the Site solely for your own non-commercial use provided that you agree not to change or delete any copyright or proprietary notices from the materials.
d. License to Distribute Content. You agree to grant to KI a non-exclusive, royalty-free, worldwide, perpetual license, with the right to sub-license, to reproduce, distribute, transmit, create derivative works of, publicly display and publicly perform any materials and other information (including, without limitation, ideas contained therein for new or improved products and services or data received from your Kooler Ice machine) you submit to any public areas of the Site (such as bulletin boards, forums and newsgroups) or by e-mail to KI by all means and in any media now known or hereafter developed. You also grant to KI the right to use the data connected to your machine for whatever uses KI deems necessary and appropriate. You agree that you shall have no recourse against KI for any alleged or actual infringement or misappropriation of any proprietary right in your communications to the Site and KI. All recognized trademarks and tradenames are hereby acknowledged. If you believe that content appearing on the Site constitutes copyright infringement of another party's rights, please email us.
a. No Liability for Internet or Data Accuracy.THE USER OF THIS SITE ASSUMES ALL RESPONSIBILITY AND RISK FOR THE USE OF THIS SITE AND THE INTERNET GENERALLY. KI ASSUMES NO RESPONSIBILITY FOR THE ACCURACY, COMPLETENESS, RELIABILITY OR USEFULNESS OF ANY INFORMATION (OR OTHER MATERIAL), APPARATUS, SOFTWARE, OR OTHER PROCESS CONTAINED ON, DISTRIBUTED THROUGH, OR LINKED, DOWNLOADED OR ACCESSED FROM THIS SITE.
b. No Liability for Economic Loss or Other Damages. IN NO EVENT WILL KI BE LIABLE FOR (I) ANY INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR INFORMATION, LOST DATA, INABILITY TO USE THE SITE TEMPRORAILY, BODILY INJURY FROM THE USE OF THE SITE, AND/OR SOFTWARE FOR REMOTE CONNECTION TO A KOOLER ICE MACHINE, AND THE LIKE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SITE, OR ANY INFORMATION, OR TRANSACTIONS PROVIDED ON THE SITE, OR DOWNLOADED FROM THE SITE, OR ANY DELAY OF SUCH INFORMATION OR SITE. EVEN IF KI OR ITS AUTHORIZED REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (II) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SITE AND/OR MATERIALS OR INFORMATION DOWNLOADED THROUGH THE SITE.
c. Limitation of This Section. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH STATES, KI’S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
d. No Warranties for Other Websites. KI makes no representations whatsoever about any other web site which you may access through this one or which may link to this Site. When you access another website, please understand that it is independent from this Site, and that KI has no control over the content on that other website.
You agree to indemnify, defend and hold harmless KI, its officers, directors, employees, agents, licensors, suppliers and any third party information providers to the Site from and against all losses, expenses, damages and costs, including reasonable attorneys' fees, resulting from any violation of this Agreement (including negligent or wrongful conduct) by you or any other person accessing this site, regarding (1) any bodily injury to you or any third party due to the use of the services offered by this Site and/or the Software; (2) any economic damages to you or any other third party due to the use of this Site and/or the Software; (3) your breach of any representation, warranty, covenant or obligation set forth in this Agreement (or any other violation of this Agreement); (4) any information, content or other material transmitted, submitted or provided by you through this Site (including, without limitation, Owner’s exercise of its rights with respect to such information); (5) your publication or use of any user review displayed on this Site, and/or (6) direct, proximate, special, consequential, or indirect damages due to you or any other third party arising out of or in connection with (a) the use of this Site or the Software, (b) any information, process, apparatus, or material contained or distributed through or linked, downloaded, or accessed from the Site or the Software, (c) the internet generally, or (d) otherwise relating to the subject matter of this MSA, whether based in breach of contract, negligence or other tort, or other form of action or legal theory, regardless of whether KI has been advised of such a damage.
a. Right to Terminate. Without prejudice to any other rights, KI in its sole, absolute and unfettered discretion reserves and has the right to terminate this MSA and/or restrict or suspend your use of the Site and Software, in whole or in part, unilaterally and without notice, if you fail to comply with the terms and conditions of your licensing agreement with KI or this MSA. In such event, you will not be able to access your account until you are in compliance with this MSA and your License Agreement with KI. You agree and acknowledge that you will take no action in respect of any damage or loss you sustain arising from KI’s cancellation or suspension of your use of the Site or the Software in accordance with this Agreement.
b. Data Upon Termination. Upon termination, all account data will be retained by KI.
c. Privacy Protection. Site information that KI can access is not sold or shared with any Third Party in any way that will identify you. KI will not disseminate any of your billing information but does not indemnify the Third Party Processing Company from any claims related to the use or misuse of your financial information.
a. Definition. "User Provided Content" means information, content and other material that any user of this Site submits or otherwise provides to KI or that KI has access to through your use of the Site (including but not limited to feedback, user reviews, data, questions, answers, comments, suggestions, plans, ideas or the like).
b. No Confidentiality in User Provided Content. While KI will make every effort to protect the User Provided Content, if any user of this Site submits or otherwise provides KI with User Provided Content, such User Provided Content will be deemed to be non-confidential. As such, KI assumes no obligation for the unintentional or inadvertent disclosure of the User Provided Content.
c. License for User Provided Content. You grant KI and its affiliates the absolute, perpetual, irrevocable, transferable, royalty-free, worldwide, unrestricted right, license and authority to (a) use, store, reproduce, adapt, delete, publish, translate, publicly perform, display, distribute, sell, disclose, manipulate, modify and prepare derivative works based upon any User Provided Content that you submit or otherwise provide to KI, in whole or in part, in such manner, format and media as KI may see fit in its sole discretion and for such purposes as KI may see fit in its sole discretion, without compensation to you, and (b) if necessary to administer the Site or provide services to you, grant to third parties (through multiple tiers) the right, sublicense and authority to exercise all or any portion of the rights granted to KI in this paragraph, subject to such terms and conditions as KI may deem appropriate in its sole discretion.
d. Warranty of Right to License. You represent and warrant that you have the right and authority to grant KI the rights, licenses and authorizations afforded by this MSA without the consent or authorization of any other person or entity, and that the exercise of any such rights, licenses, or authorizations by KI or its sublicensees will not infringe on any copyright or other intellectual property right or right of publicity or privacy rights of any other person or entity.
e. Warranty of Ownership. By submitting or otherwise providing User Provided Content (including, without limitation, user reviews), you represent and warrant that (a) you are the sole author and KI of the intellectual property rights thereto, (b) all "moral rights" that you may have in such User Provided Content have been voluntarily waived by you, (c) all such User Provided Content is accurate, (d) you are at least 18 years old, and (e) use of such User Provided Content will not cause injury to any person or entity.
a. No Illegal Activity. You agree and warrant that you will not post or store on, or transmit, submit or otherwise provide through this Site any information, content or other material (including, without limitation, user reviews) that (a) violates, infringes or misappropriates any intellectual property right (including, without limitation, copyright, trademark, trade secret, patent, and right of publicity), any right of privacy or publicity, or any other right of any person or entity, (b) is harmful, threatening, abusive, harassing, false, misleading, defamatory, vulgar, obscene, sexually explicit, profane, hateful or racially, ethically or otherwise objectionable, (c) that violates any applicable law or regulation, or (d) contains any computer viruses, worms or other potentially damaging computer programs or files.
b. Protection of User Provided Content. You agree and understand that KI may, in its sole discretion for any reason, and without any prior notice or liability, delete any files that you may maintain at this Site, and any material you may choose to post here. You are responsible for keeping a copy of any material that you maintain or post at this Site and KI will not undertake to retain copies of any material that KI or others may delete from this Site.
c. Warranty of Site Accuracy. Any material on this Site may include technical or other inaccuracies or typographical errors.
d. "As Is" Use. THIS WEBSITE IS MADE AVAILABLE TO YOU ON AN "AS IS" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, AND WITHOUT ANY REPRESENTATIONS OR GUARANTEES.
e. No Warranties of Performance or Suitability. KI AND ITS AFFILIATES HEREBY DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND ENDORSEMENTS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.
f. No Oral Warranties.NO ADVICE OR INFORMATION GIVEN BY KI, ITS AFFILIATES OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE ANY WARRANTY.
g. No Warranties of Errors on Site. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, (A) NEITHER KI NOR ITS AFFILIATES REPRESENTS, WARRANTS OR GUARANTEES THAT THIS SITE OR THE INTERNET GENERALLY WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE FROM THIS SITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, AND (B) NEITHER KI NOR ITS AFFILIATES MAKES ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES REGARDING (1) THE OPERATION OR PERFORMANCE OF THIS SITE OR ANY THIRD PARTY SITE, (2) THE NATURE, CONTENT OR ACCURACY (EITHER WHEN POSTED OR AS A RESULT OF THE PASSAGE OF TIME) OF ANY INFORMATION, MATERIAL, APPARATUS OR OTHER PROCESS CONTAINED ON, DISTRIBUTED THROUGH, OR LINKED, DOWNLOADED OR ACCESSED FROM THIS SITE (INCLUDING WITHOUT LIMITATION, THOSE CONTAINED ON A THIRD PARTY SITE), (3) ANY PRODUCTS OR SERVICES PURCHASED ON OR THROUGH A THIRD PARTY SITE, OR ANY PRODUCTS OR SERVICES PURCHASED OR OBTAINED AS A RESULT OF AN ADVERTISEMENT OR OTHER INFORMATION OR MATERIAL ON OR IN CONNECTION WITH THIS SITE, OR (4) THE INTERNET GENERALLY.
h. This Section Control.IN THE EVENT OF ANY CONFLICT BETWEEN THIS SECTION (NO WARRANTIES) AND OTHER TERMS OR PROVISIONS OF THIS AGREEMENT, THIS SECTION SHALL GOVERN.
a. No Right To Alter Software. You may not reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. You may not rent, lease, or lend the Software.
b. Transfer of Rights. You may permanently transfer all of your rights under this MSA, provided KI approves the transfer and the transferee agrees to the terms of this MSA. KI will not unreasonably withhold this consent.
c. No Unauthorized Transfer. You may not use the Software to perform any unauthorized transfer of information or for any illegal purpose.
d. Limited Right to Site. You will not use the Software or Site to manufacture, have made, use or market a similar site or similar services in any location nor will you use the Software or Site for any purpose other than expressly permitted by KI Where KI has indicated to you that the whole or any part or parts of the Software or Site comprises confidential or proprietary information to KI, you will not at any time during the term (as renewed) of the Agreement or after its termination disclose such information or material to any person without obtaining KI’s express written consent. You will take such steps as may be necessary to ensure that any of your employees or agents do not disclose such information regarding the Software or Site.
e. No Illegal or Unauthorized Use of Site or Software. You may not and warrant that you will not: (1) Copy, reproduce, transmit, transcribe, store in a retrieval system, or translate in any language (natural or computer) any part of the Site or the Software; (2) Transfer or attempt to transfer any part of the Site or Software or your right to access them or otherwise make them available to any other person; (3) attempt to discover KI’s source code; (4) Sublicense, rent or lease any portion of the Site or the Software; (4) use the Site or the Services for any illegal purpose; (5) allow your Site Account to be used for any illegal purpose; or (6) allow your Account to be used by another person for any purpose.
KI is under no obligation to monitor the information residing on or transmitted to this Site. However, anyone accessing this Site agrees that KI may monitor the contents of this Site to (1) comply with any applicable laws, regulations or other governmental requests; (2) operate this Site properly or to protect itself and its users and to gather data that will be useful to KI. KI reserves the right to modify, reject or eliminate any information or other material residing on or transmitted to this Site (or the server(s) that host this Site) that it, in its sole discretion, believes is unacceptable or in violation.
You agree that you will comply with any security processes and procedures specified by KI with respect to access to or use of this Site. Further, you agree not to access or attempt to access any areas of or through this Site which are not intended for general public access, unless you have been provided with explicit written authorization to do so by KI. You agree that you will not disrupt the functioning of this Site or otherwise act in a way that interferes with other users' use of this Site.
KI reserves any and all remedies at law or equity in connection with violation of the terms of this Agreement. You also agree that in circumstances where KI considers damages are not a sufficient remedy, KI may seek injunctive relief against you and that you will not oppose applications seeking injunctive relief as may be brought by KI in respect of your use or proposed use of the Site or the Software.
In any legal proceeding relating to this Agreement, you agree to waive any right you may have to participate in any class, group, or representative proceeding and to waive any right you may have to a trial by jury.
Any claim, controversy, or dispute that arises under or relates to this Agreement shall be referred by the aggrieved party to
binding arbitration under the Commercial Rules of the American Arbitration Association.
Any arbitration proceeding shall be held in Houston County, Georgia and you agree that such venue is the proper place for any arbitration.
You and KI agree that the substantive laws of the state of Georgia, without reference to its principles of conflicts of laws, will be applied to govern, construe and enforce all of the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement.
YOU AND KI CONSENT TO THE EXCLUSIVE PERSONAL JURISDICTION OF AND VENUE IN A COURT LOCATED IN HOUSTON COUNTY, GEORGIA, FOR ANY SUITS OR CAUSES OF ACTION CONNECTED IN ANY WAY, DIRECTLY OR INDIRECTLY, TO THE SUBJECT MATTER OF THIS AGREEMENT OR TO THIS SITE.
If any portion of this Agreement is ruled invalid or otherwise unenforceable, it shall be deemed amended in order to achieve as closely as possible the same effect as originally drafted. Any invalid or unenforceable portion should be construed as narrowly as possible in order to give effect to as much of the Agreement as possible. No waiver of any breach of any agreement or provision of this Agreement, nor any failure to assert any right or privilege contained in this Agreement, shall be deemed a waiver of any preceding or succeeding breach of any agreement or provision..
You agree not to assign or otherwise transfer this Agreement in whole or in part without prior written consent of KI which shall not be unreasonably withheld; any attempt to do so shall be void. The provisions of this Agreement are for the benefit of the KI and its officers, directors, employees, agents, licensors, suppliers, and any third party information providers to the Site or Software. Each of these individuals or entities shall have the right to assert and enforce those provisions directly against you on its own behalf.
You agree to provide KI with any and all data that KI is required by federal, state or local law to provide to third parties including, but not limited to, information requested by court order, subpoena, or by a government entity.
You agree to provide KI with any and all data that KI is required by federal, state or local law to provide to third parties including, but not limited to, information requested by court order, subpoena, or by a government entity.
By paying the Annual Fee or the Monthly Fee, I am activating my account on the Site and agreeing to all the terms and conditions set forth in this MSA.
By pressing the Submit and Activate Button, I agree to the Terms and Conditions of this Agreement.