Yumasoft Inc., a corporation, located at 245 Saw Mill River Road, Suite 106, Hawthorne, New York, 10532, the United States, has assigned its rights and obligations under the below-mentioned documents to MKM Technology Pty Ltd ( Trading as OscarPOS Point of Sale Solutions ) having a principal place of business at Unit 8 / 13 Port Kembla Drive, BIBRA LAKE WA 6163, Australia.
Copyright © 2017 Yumasoft Inc.All Rights Reserved
SOFTWARE LICENSING AGREEMENT (FOR STORES)
This software licensing agreement (the “Agreement”) concluded by and between Yumasoft Inc. having a principal place of business at 245 Saw Mill River Road, Hawthorne, New York, USA, 10532 (the “Company”) and the business user of the software described below (the “Licensee”), governs the use of the cloud based all-in-one business-to-business Point-of-Sale system for stores called YumaPOS (the “Software”). The Software comprises: (i) POS terminal software; (ii) the customer downloadable web application YUMA and related application software, including an application aggregator and branded individual applications provided by the Company; (iii) back office software; (iv) plug-ins; (v) a kitchen management application; (vi) a driver mobile application; (vii) a warehouse mobile application; (viii) a store mobile application; and (ix) other related components. Hereinafter, the Company and the Licensee are collectively referred to as the “Parties” and each individually as a “Party”. By accepting the terms of this Agreement electronically, the Licensee agrees to be bound by the provisions of this Agreement and the terms of the documents indicated in Section 20 of this Agreement.
1. Terms and Definitions
Except to the extent expressly provided otherwise, in this Agreement:
The “Agreement” means this agreement and any amendments to this Agreement.
The “Customer” means a natural or legal person using the Software for purchasing goods from the Licensee through the Software.
The “Goods” means goods featured through the Software and offered by the Licensee for sale to the Customer.
The “Effective Date” means the date of execution of the Agreement, namely, the moment the Licensee explicitly accepts the terms of the Agreement electronically.
The “Fees” means the agreed recurring monthly or annual license fees paid by a business entity (e.g., the Licensee and/or a reseller of the Goods) to the Company for the use of the Software in accordance to the pricing list available at www.oscarposcloud.com.au.
The “Commissions” means the amount currently equal to zero % of every successful sale transaction executed by the Licensee through the Software.
2. The License
2.1.1 The Company grants to the Licensee a non-exclusive, non-transferable, and revocable commercial license to use the current version of the Software in accordance with the terms of this Agreement. The Software is licensed only and not sold. The License is subject to the restrictions set out in this Agreement.
2.1.2 The Licensee can install the number of copies of Software that is negotiated and agreed with the Company when concluding the Agreement. The use of the Software is subject to the limitations and prohibitions set out in this Agreement.
2.1.3 Unless otherwise set out in this Agreement or agreed between the Company and the Licensee in writing, the Licensee is not allowed to distribute, copy, rent, loan, use, lease, disassemble, make alterations, decompile, reverse engineer, translate, adapt, and access without authorization the Software.
2.2 Sub-licensing of the Software
2.2.1 The Licensee is not allowed to sub-license the Software to third parties without obtaining a prior written permission from the Company.
2.3 Supply of the Software
2.3.1 The Company shall make the Software available for download by the Licensee within a time period of 5 working days commencing on the Effective Date and, upon a request of the Licensee, provide the Licensee with assistance in relation to the download of the Software.
2.4 Authorized access
2.4.1 The Software shall only be used by the officers and employees of the Licensee. The Licensee shall be solely responsible for ensuring the reasonable security of the copies of the Software provided to the Licensee, including the login credentials to use the Software, and shall use reasonable endeavors to ensure that such copies are accessed only by the persons authorized under this Agreement. The Licensee shall ensure that the creation and maintenance of login credentials to use the Software comply with the appropriate information security standards regarding the strength of passwords, secure Internet connection, up-to-date antivirus software, and information security training. The Company shall not be responsible for any unauthorized access occurred due to Licensee’s failure to adhere to such security standards.
2.5 Improvement of the Software
2.5.1 This Agreement applies to the Software, its all related components, and future updates. The Company reserves the right to issue new releases and versions of the Software. All improvements of the Software shall be reported by the Company to the Licensee electronically.
2.5.2 The Company may establish new terms for the provision of the Software and provide the Licensee with additional services subject to an additional agreement with the Licensee.
3. Term and Termination
3.1 This Agreement shall come in force between the Company and the Licensee on the Effective Date.
3.2 This Agreement is in force until terminated by either Party. Either Party may terminate the Agreement upon at least 30 days’ prior written notice to the other Party. Upon the termination of the Agreement, the rights and obligations of the Parties shall terminate.
3.3 The Company reserves the right to terminate at its absolute discretion the Agreement if the Licensee fails to comply with the terms set out in this Agreement. The Company shall send a prior notice of the termination of the Agreement to the Licensee at least 30 calendar days before the termination of the Agreement.
3.4 Upon termination of the Agreement, the Licensee shall stop using the Software and destroy all copies of the Software and all of its component parts.
3.5 Upon the termination of the Agreement, the Fees and the Commissions paid by the Licensee to the Company shall not be refunded.
4. Intellectual Property
4.1 The Software is intellectual property of the Company, its partners, agents, licensors, and vendors.
4.2 The Software is protected by the intellectual property laws of the United States and the applicable international intellectual property treaties.
5. Fees and Payments
5.1 The Licensee shall pay the Fees indicated on Company’s accredited partner website www.oscarposcloud.com.au in accordance with this Agreement.
5.2 All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, exclusive of value added tax (VAT) and other applicable taxes.
5.3 The Company may elect to vary any element of the Fees by giving to the Licensee at least 30 calendar days written notice of the variation and obtaining Licensee’s consent. Unless otherwise specified by the Company in writing, the changes of the Fees will apply to Licensee’s next payment.
5.4 The Company shall issue electronic invoices to the Licensee on a regular basis, depending on the subscription plan chosen by the Licensee. During the first month of using the Software, the Fees will be charged to the Licensee pro-rata in conjunction with the Fees for the next month.
5.5 The Licensee shall pay the invoice issued by the Company by the due date indicated on the invoice. The date of payment is the date when the Fees reach Company’s bank account. In case the Licensee does to pay the Fees prior to the expiration of a time period of 5 working days commencing on the due date indicated in the invoice, the Company may: (1) charge interest of 0,5% for every commenced day of delay; (2) suspend Licensee’s use of the Software; or (3) terminate Licensee’s use of the Software.
5.6 The Licensee has the right to submit a complaint to the Company regarding problems related to the operation of the Software within a time period commencing on the date when the problems occurred for the first time and ending 5 days after the expiration of the month during which the problems occurred for the first time.
5.7 The Company is entitled to Commissions for the Goods sold by the Licensee. The Commissions are equal to zero % of every successful transaction executed by the Licensee. The Commissions will be included in the monthly invoices issued by the Company to the Licensee. In the event of early termination of this Agreement for any reason, the Commissions paid by the Licensee in accordance with this Agreement shall not be refunded.
5.8 The Licensee shall pay the Fees through the mobile application or the Websites by using a credit card, bank transfer, or online banking systems. The payment of the Fees is processed by the third party payment processor chosen by the Licensee. The third party payment processor handles all the steps in the payment process. The Company neither accesses nor stores any Licensee’s payment information.
5.9 The Licensee agrees not to hold the Company liable for any payments of the Fees that do not reach the Company because of Licensee’s failure to quote correct payment information.
6. Rights and Obligations of the Company
6.1 The Company warrants to the Licensee that it has the legal right and authority to enter into this Agreement, to exercise its rights, and to perform its obligations under this Agreement.
6.2 The Company reserves the following rights in relation to the Software:
To issue new releases and versions of the Software, establish new terms for the provision of the Software, and provide the Licensee with additional services after receiving Licensee’s prior consent;
Make changes to the Software and correct any Software errors, flaws, bugs, and any other technical issues related to the Software;
Temporarily suspend the provision of the Software for the purpose of eliminating technical issues related to the Software;
Suspend the provision of the Software if the Company has the reason to believe, under its own discretion, that the Licensee violates the terms of this Agreement;
To terminate this Agreement and to delete all Licensee’s data without a prior notice if the Licensee stops using the Software for at least 12 months. In case of such a termination, the Licensee is not entitled to receive a refund of any Fees and Commissions paid to the Company.
6.3 The Company shall provide the Licensee with the following technical support:
Providing technical advice by phone, e-mail, and other means indicated on the Websites;
Processing Licensee’s support tickets with regard to errors and any technical issues occurring during the use of the Software.
7. Rights and Obligations of the Licensee
7.1 The Licensee warrants to the Company that it has the legal right and authority to enter into this Agreement, to exercise its rights and to perform its obligations under this Agreement.
7.2 The Licensee reserves the right to request and receive reliable technical information on the installation, use, and functioning of, and occurred errors in the Software from the Company by sending a request through the Websites, e-mail, phone, or any other electronic means indicated by the Company.
7.3 The Licensee shall not use the Software in any way that infringes any applicable laws. To the extent permitted by the applicable law, the Licensee shall remain liable for any use of the Software for illegitimate purposes.
7.4 The Licensee shall not use the Software in any way that is opposite to the license restrictions set out in this Agreement.
7.5 In order to start using the Software, the Licensee shall undergo the registration procedure on the Websites or fill out the registration forms provided by the Company. The Licensee shall provide true, accurate, complete and up to date information about its business activities during the registration process. The Licensee shall immediately notify the Company about any changes occurred with regard to such information. In case the Company has serious grounds to believe that the information provided by the Licensee is not true, accurate, complete and up to date information, the Company may, in its sole discretion, terminate the Agreement.
7.6 The Licensee shall keep the login details, passwords, and access settings for Licensee’s employees received during the registration process from the Company and the data entered in the Software in a secure and confidential manner.
7.7 The Licensee shall immediately notify the Company if the Licensee becomes aware of any unauthorized access to the Software using Licensee’s credentials or any security breach with regard to the Software.
7.8 In order to ensure the security of the Software, the Licensee shall complete the work session through the Software by using the “EXIT” functionality available in the Software.
7.9 In case an error occurs in relation to the functioning of the Software, the Licensee shall not attempt to make any changes to the Software, but shall immediately notify the Company about the occurrence of such errors. In case the Company becomes aware of any attempts by the Licensee to make changes to the Software, the Licensee will be liable to pay a monetary fine of 50000 USD to the Company and the Agreement will be immediately terminated.
7.10 The Licensee shall not transfer the License granted under this Agreement to any third parties without receiving Company’s prior written consent.
7.11 The Licensee shall not remove or change any copyright information regarding the Software.
8. Warranty Limitations
8.1 All of the Company’s and Licensee’s warranties and representations in respect to this Agreement are expressly set out in this Agreement. To the maximum extent permitted by the applicable law, no other warranties or representations concerning this Agreement will be implied into this Agreement or any related contract.
8.2 The Company expressly disclaims any warranty for the Software. The Software and any related documentation is provided “AS IS” without warranty of any kind, either express or implied, including, without limitation, the implied warranties or merchantability, fitness for a particular purpose, or non-infringement. The entire risk arising out of use or performance of the Software remains with the Licensee.
8.3 Subject to the other provisions of this Agreement, the Company gives no warranty or representation that the Software will be wholly free from defects, errors, bugs, and security loopholes.
8.4 The Company does not warrant or represent that the Software will be compatible with any software or hardware that does not meet the technical requirements specified by the Company in writing.
9. Limitation of Liability
9.1 To the extent not prohibited by law, in no event shall the Company be liable for any damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of the use of or inability to use the Software, even if the Company has been advised of the possibility of such damages.
10. Governing Law & Disputes
10.1 This Agreement is governed by, interpreted and construed according to the laws of the State of New York, the United States of America. All disputes arising out of this Agreement shall be subject to the exclusive jurisdiction of the courts in New York City, New York, the United States of America.
11.1 If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the unlawful and/or unenforceable clause shall immediately be removed from the Agreement and other provisions of this Agreement will continue in effect.
11.2 The unenforceability of any single provision of this Agreement shall not affect any other provision hereof. Where such a provision is held to be unenforceable, the Company and the Licensee shall use their best endeavors to negotiate and agree upon an enforceable provision, which achieves to the greatest extent possible the economic, legal and commercial objectives of the unenforceable provision.
12.1 Any notice from the Licensee to the Company under this Agreement shall be given in electronic or paper form by using Company’s details specified in Section 18 of this Agreement.
12.2 Any notice from the Company to the Licensee under this Agreement shall be given in electronic or paper form by using Licensee’s contact details submitted through the Software during the registration process.
12.3 If the stated time of deemed receipt of the notice submitted by either Party is not within business hours, then the time of deemed receipt shall be when business hours next begin after the stated time.
12.4 The Company’s contact details in Section 18 of this Agreement may be updated from time to time by the Company by giving a written notice of the update to the Licensee in accordance with this Section 12.
13. Privacy & Security
13.2 The Licensee acknowledges that it is Licensee’s responsibility to maintain the Software in a secure and confidential manner. The Licensee agrees to immediately notify the Company of any unauthorized access or use of the Software through Licensee’s credentials.
13.3 The Licensee shall use secure encrypted connection to communicate with the Company and utilize the Software.
14.1 A failure of a party to enforce strictly a provision of this Agreement shall in no event be considered a waiver of any part of such provision. No waiver by a party of any breach or default by the other party shall operate as a waiver of any succeeding breach or other default or breach by such other party. No waiver shall have any effect unless it is specific, irrevocable and in writing.
15.1 The Licensee indemnifies and agrees to defend the Company, its affiliates and their respective officers, directors, employees and agents, against any claims, liabilities, actions, proceedings, demands, costs, charges and expenses which the Company may incur or suffer as a result of: (1) Licensee’s access and use of the Software; (2) Licensee’s failure to comply with the terms of this Agreement; and (3) Licensee’s violation of any laws and third party rights.
16. Force Majeure
16.1 Neither Party is responsible for any failure to perform its obligations under this Agreement, if it is prevented or delayed due to Force Majeure events, including, but not limited to, riots, wars, earthquakes, floods, fire, power supply failures, and national strikes.
16.2 In an event of Force Majeure, the Party prevented from or delayed in performing its obligations under this Agreement shall immediately notify the other Party by giving detailed particulars of the Force Majeure event no later than 3 working days commencing from the occurrence of the Force Majeure event.
16.3 The term for obligations under this Agreement will extend proportionally to the reasonable duration of the Force Majeure.
17. Amendment and assignment
17.1 The Company reserves the right to amend this Agreement from time to time by making the modified version available to the Licensee in writing. If the Licensee continues using the Software after the modified version is made available to him, the Licensee agrees to be bound by the amended Agreement.
17.2 The rights and obligations of the Company under this Agreement may be freely assigned to any third parties without the consent of the Licensee.
17.3 This Agreement shall inure to the benefit of and be binding upon the successors and assigns of the Company.
18. Company’s Contact Details
The Company: Yumasoft Inc.
Address:245 Saw Mill River Road, Hawthorne, New York, USA, 10532
Phone number: +1 718 710 46 35,
19. Last Amendment
19.1 This Agreement has been last amended on 18th of September 2017.
20. Other Relevant Documents
20.1 For more detailed information on the terms and conditions governing the use of the Software, please refer to the following documents:
20.2 By using the Software, the Licensee agrees to be legally bound by the provisions of this Agreement and the terms of the documents mentioned in Section 20.1.