SALES AGREMENT
THIS "SALES AGREEMENT" (HEREINAFTER “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN THE INDIVIDUAL OR LEGAL ENTITY OR ASSOCIATION PURCHASING THE SOFTWARE ("YOU" OR "CUSTOMER") AND HEHE ENTERPRISES, LLC dba i9 TECHNOLOGIES. BY REGISTERING FOR THE SOFTWARE, DOWNLOADING THE SOFTWARE OR USING THE SOFTWARE, YOU REPRESENT, WARRANT, AND AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND TO THE TERMS OF THIS AGREEMENT. PURCHASE OF THE SOFTWARE IS STRICTLY CONDITIONED ON YOUR AGREEMENT TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, OR YOU DO NOT HAVE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT, YOU MAY NOT DOWNLOAD, USE OR INSTALL THE SOFTWARE.
1. DEFINITIONS “i9 Technologies”, “Us” and “We” means HEHE Enterprises, LLC dba i9 Technologies, its employees, representatives, agents and contractors. “Software” Means any software that is accompanied by this Agreement and includes the iSymphony computer software in client and server form, which i9 Technologies owns or has the right to license under this Agreement. "Support and Maintenance" means the optional fee-based subscription that enables a Customer to receive access to support and new releases of and updates to the Software. "Third Party Software" includes any third-party software that may be included with the Software. “Software Package” means the level or grouping of features (Perpetual, Starter, Basic or SoHo) You choose to have delivered to You as part of the Software.
2. LICENSE Subject to the separate End User License Agrement (“EULA”) included with the Software and provided that You have a valid License Key, i9 Technologies grants You the revocable, non-exclusive, non-transferable, and non-sublicensable license to install and use the Software on the number of separate computers owned by You (“Users”) specified in Your purchase of the Software.
3. NEW RELEASES AND UPDATES
a. Monthly Subscriptions If you purchased a monthly subscription based Software Package (Starter, Basic or SoHo), You are entitled to use new releases of and updates to the Software only while Your subscription remains active and in good standing. Any new releases of and updates to the Software You receive, and are entitled to use pursuant to this Section, shall be included in the definition of "Software" hereunder and shall be governed by the terms of this Agreement and the EULA unless such new release or update is accompanied by a separate license, in which case the terms of that license will govern the Software and/or such new release or update. You may obtain new releases of and/or updates to the Software only from i9 Technologies or other sources authorized by i9 Technologies. b. Perpetual License If you purchased a perpetual license, You are entitled to use new releases of and updates to the Software only (i) if you elect to purchase a Support and Maintenance subscription and (ii) while your Support and Maintenance subscription remains active and in good standing. A Support and Maintenance subscription is optional and, subject to the terms of this Agremeent and the EULA, You may use the Software without such a subscription and/or continue to use the Software after such subscription has expired. Any new releases of and updates to the Software you receive and are entitled to use pursuant to this Section shall be included in the definition of "Software" hereunder and shall be governed by the terms of this Agreement and the EULA unless such new release or update is accompanied by a separate license, in which case the terms of that license will govern the Software and/or such new release or update. You may obtain new releases of and/or updates to the Software only from i9 Technologies or other sources authorized by i9 Technologies.
4. LIMITED LICENSE You acknowledge and agree that (i) the Software is the property of i9 Technologies and is licensed and not sold to You under the EULA and (ii) the Software uses, embodies, and contains confidential and proprietary information and technology of i9 Technologies and/or its licensors and embodies trade secrets and intellectual property of i9 Technologies and/or its licensors protected under United States copyright and other laws, and by international treaty provisions (collectively referred to as "i9 Technologies Intellectual Property Rights"). Your rights in the Software are strictly limited to those license rights expressly granted under the LICENSE section above, and i9 Technologies retains all rights not expressly granted herein. Without limiting the foregoing, i9 Technologies and/or its licensors retain all right, title, and interest in and to i9 Technologies Intellectual Property Rights, including but not limited to: (i) all software code (source and object), functionality, technology, system or network architecture and user interfaces and all modifications thereto and (ii) all trade secrets, patents, copyrights and other intellectual property rights with respect to the Software. You further acknowledge that there are no implied licenses granted under the EULA.
5. USE OF SOFTWARE The Software is made available to You for Your personal or commercial use only.
6. AUTOMATIC UPDATES The Software may communicate with i9 Technologies servers from time to time to check for available updates to the Software, such as bug fixes, patches, enhanced functions, missing plug-ins and new versions (collectively, "Updates"). By installing the Software, You agree to automatically request and receive Updates. You will be entitled to receive Updates only as provided in Section 3 above.
7. UPGRADES AND DOWNGRADES The amount You pay for the Software is dependent on the Software Package selected at the time of purchase and the number of Users allowed. If You elect to switch to a Software Package which costs more or increases the number of Users, We will invoice You for the marginally increased amount owed. If You switch to a Software Package which costs less or decreases the number of Users, We will not be required to refund any prepaid amount. To change Your Software Package or the number of Users, You must, at i9 Technologies’ sole discretion, enter into a new license agreement for the Software on the then-current terms.
8. PAYMENT OF FEES You must pay all fees by the due dates. Failure to make payment by the end of the subscription period will result in the termination of Your license and inability to utilize the Software until a new subscription is purchased.
9. PRICE CHANGES i9 Technologies reserves the right to change prices for its Software Packages at any time and without notice to You.
10. CREDIT CARD BILLING If You choose to pay by credit or debit card, You authorize i9 Technologies to debit Your account renewal fees, if any, from Your card. i9 Technologies uses a third-party intermediary to manage credit card processing, and this intermediary is not permitted to store, retain or use Your billing information except to process Your credit card information for i9 Technologies. We may use Your credit card information in order to perform fraud screening.
11. REFUNDS i9 Technologies has no obligation to issue refunds. i9 Technologies offers a trial account that should be used to evaluate and test the Software before purchasing. Any refunds will be made entirely at i9 Technologies’ discretion.
12. INDEMNITY You agree to hold harmless and indemnify i9 Technologies and its subsidiaries, affiliates, officers, agents, and employees from and against any claim, suit or action arising from or in any way related to Your use of the Software or Your violation of these Terms and Conditions, including any liability or expense arising from all claims, losses, damages, suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, i9 Technologies will provide You with written notice of such claim, suit or action.
13. DISCLAIMER OF WARRANTIES YOU EXPRESSLY UNDERSTAND AND AGREE THAT: a) YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK. THE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, i9 TECHNOLOGIES EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. b) i9 TECHNOLOGIES MAKES NO WARRANTY (i) THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS; (ii) THAT THE SOFTWARE WILL BE ERROR-FREE OR BUG-FREE; (iii) REGARDING THE SECURITY, RELIABILITY, TIMELINESS, OR PERFORMANCE OF THE SOFTWARE; AND (iv) THAT ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. c) ANY CONTENT OR MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH CONTENT OR MATERIAL. d) NONE OF THE SOFTWARE IS INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, LIFE SUPPORT SYSTEMS, EMERGENCY COMMUNICATIONS, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, OR ANY OTHER SUCH ACTIVITIES IN WHICH CASE THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. e) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM i9 TECHNOLOGIES OR ANY THIRD PARTY OR THROUGH THE SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS AND CONDITIONS.
14. LIMITATION OF LIABILITY YOU EXPRESSLY UNDERSTAND AND AGREE THAT i9 TECHNOLOGIES SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF i9 TECHNOLOGIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SOFTWARE; (ii) THE INABILITY TO USE THE SOFTWARE TO ACCESS CONTENT OR DATA; (iii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (v) ANY OTHER MATTER RELATING TO THE SOFTWARE. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
15. EXCLUSIONS AND LIMITATIONS NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS IN SECTIONS 11 AND 12 WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU, AND i9 TECHNOLOGIES' LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
16. UNAUTHORIZED ACCESS; LOST OR CORRUPT DATA i9 TECHNOLOGIES IS NOT RESPONSIBLE FOR UNAUTHORIZED ACCESS TO ANY DATA, FACILITIES, OR EQUIPMENT BY ANYONE USING THE SOFTWARE OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT, CORRUPTION, LOSS, OR DESTRUCTION OF ANY DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH THE SOFTWARE, WHETHER BY ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER MEANS. YOU ARE SOLELY RESPONSIBLE FOR VALIDATING THE ACCURACY OF ALL OUTPUT AND REPORTS. YOU HEREBY WAIVE ANY DAMAGES OCCASIONED BY LOST OR CORRUPT DATA, INCORRECT REPORTS, OR INCORRECT DATA FILES RESULTING FROM PROGRAMMING ERROR, OPERATOR ERROR, EQUIPMENT OR SOFTWARE MALFUNCTION, SECURITY VIOLATIONS, OR THE USE OF THIRD-PARTY SOFTWARE. i9 TECHNOLOGIES IS NOT RESPONSIBLE FOR THE CONTENT OF ANY INFORMATION TRANSMITTED OR RECEIVED THROUGH i9 TECHNOLOGIES’ PROVISION OF THE SOFTWARE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SERVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
19. MISCELLANEOUS PROVISIONS a) Entire Agreement. These Terms and Conditions constitute the entire agreement between You and i9 Technologies relating to the Software and govern Your use of the Software, superseding any prior or contemporaneous agreements between You and i9 Technologies regarding the Software. b) Choice of Law and Forum. These Terms and Conditions and the relationship between You and i9 Technologies shall be governed by the laws of the State of New Mexico without regard to its conflict of law provisions. You and i9 Technologies agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Bernalillo, New Mexico. c) Waiver and Severability of Terms. The failure of i9 Technologies to exercise or enforce any right or provision of these Terms and Conditions shall not constitute a waiver of such right or provision. If any provision of these Terms and Conditions is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms and Conditions shall remain in full force and effect. d) Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Software or these Terms and Conditions must be filed within one (1) year after such claim or cause of action arose or be forever barred. e) Headings. The section headings in these Terms and Conditions are for convenience only and have no legal or contractual effect.