This is an agreement (“Agreement”) between you (“Licensed User”), and Viewpost North America, LLC and its affiliates and subsidiaries (collectively, “Viewpost”) regarding the software (“Software”) from Viewpost you download, install, and/or use in connection with your use of the accounting gateway services and other resources Viewpost makes available to businesses through the Viewpost website (www.viewpost.com) (collectively, the “Viewpost Services”). BY CLICKING “ACCEPT” OR OTHERWISE INSTALLING AND/OR USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL AND/OR USE THE SOFTWARE.
You may NOT: (i) sell, redistribute, encumber, give, lend, rent, lease, sublicense, or otherwise transfer the Software, or any portions thereof, to anyone without the prior written consent of Viewpost; (ii) reverse-engineer, decompile, disassemble, modify, translate, make any attempt to discover the source code of, or create derivative works from the Software; (iii) remove, disable or circumvent any security protections, proprietary notices or labels contained on or within the Software. For the avoidance of doubt, the license granted herein does not grant you any right to use the trademarks, service marks, or logos of Viewpost.
2. CERTAIN OPEN SOURCE LIBRARIES. Notwithstanding the foregoing, certain of the Software is based on source code that includes source code libraries licensed under the GNU Lesser General Public License (“LGPL Libraries”), the terms and conditions of which may be found at www.gnu.org/licenses. With respect to such LGPL Libraries, and only such LGPL Libraries, Licensed User is granted those permissions set forth in the GNU Lesser General Public License and the usage and distribution of the LGPL Libraries is subject to all terms and conditions of the GNU Lesser General Public License. The LGPL Libraries include “nhibernate”, the source code of which is available at http://sourceforge.net/projects/nhibernate.
Note that certain portions of the Software, other than the LGPL Libraries described above, have been used and modified pursuant to open source license agreements commonly identified as “Apache,” “MIT,” “BSD,” “CPOL,” or “MS Public License.” The authors of such portions retain the copyrights in all such portions as the same were received by Viewpost and its licensors.
3. UPDATES. Viewpost may, from time to time, automatically install or otherwise make updates, revisions, and/or new versions of the Software available for download and installation to Licensed User. The terms and conditions of this Agreement shall apply to all such updates, revisions, and/or new versions. You agree that Viewpost may install such Software automatically, and you will be presented with the option to opt-out of this auto-update feature. This will ensure that the most recent version is available for your use. If you opt-out of auto updates, your Software may become out of date, and the payment service connectivity for older versions of Software may be discontinued.
You acknowledge that Viewpost may develop and market new or different computer programs or editions of the Software that use portions of the Software and that perform all or part of the functions performed by the Software. Nothing contained in this Agreement shall give you any rights with respect to such new or different computer programs or editions. You also acknowledge that Viewpost is not obligated under this Agreement to make any updates, revisions, or new versions available to the public.
4. DESCRIPTION OF OTHER RIGHTS, LIMITATIONS, AND OBLIGATIONS. You hereby agree, that to the extent that any applicable laws (including without limitation laws implementing EC Directive 91/250 on the Legal Protection of Computer Programs) give you the right to perform any of the aforementioned activities in Paragraph 1, above, without the consent of Viewpost to gain certain information about the Software, before you exercise any such rights, you shall first request such information from Viewpost in writing detailing the purpose for which you need the information. Only if and after Viewpost, at its sole discretion, partly or completely denies your request, shall you exercise your statutory rights.
5. DISCLAIMER. THE SOFTWARE IS PROVIDED AS-IS, WHERE-IS, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VIEWPOST, ITS LICENSORS AND SUPPLIERS SPECIFICALLY DISCLAIM WITH RESPECT TO SOFTWARE (INCLUDING UPDATES) ANY WARRANTIES OR GUARANTEES OF QUALITY, AVAILABILITY, RELIABILITY, SECURITY, LACK OF VIRUSES AND/OR MALWARE, BUGS, OR ERRORS, AND ANY IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THE SOFTWARE IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR DISTRIBUTION WITH ANY EQUIPMENT, THE FAILURE OF WHICH COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. YOU ASSUME THE RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE AND HARDWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE AND HARDWARE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU ARE RESPONSIBLE FOR COMPLIANCE WITH ALL LICENSE RESTRICTIONS RELATING TO THIRD-PARTY SOFTWARE RUNNING IN CONJUNCTION WITH THE SOFTWARE. INSTALLING THE SOFTWARE MAY REQUIRE YOU TO PURCHASE DIFFERENT OR ADDITIONAL LICENSES WITH RESPECT TO SUCH THIRD-PARTY SOFTWARE. VIEWPOST HAS NO OBLIGATION TO CREATE OR MAINTAIN ON BEHALF OF LICENSED USER ANY BUSINESS RECORDS OR OTHER DATA OF LICENSED USER. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY VIEWPOST OR ITS AUTHORIZED REPRESENTATIVE(S) SHALL CREATE A WARRANTY
6. PROPRIETARY RIGHTS. No title to or ownership of the Software is transferred to you. Viewpost and/or its licensors own and retain all title and ownership of all intellectual property rights in and to the Software, including, without limitation, any adaptations or copies. Except for the limited license granted to you to use the Software as set forth in Section 1, all right, title, and interest in and to the Software and any and all associated copyrights, trademarks and intellectual properties therein and/or related thereto and all copies thereof (including, but not limited to, any patches, updates, copies, derivative works, titles, computer code, themes, objects, characters, character names, stories, dialogs, catch phrases, locations, concepts, artwork, images, animation, sounds, musical compositions, audio-visual effects, text, methods of operation, moral rights, and any related documentation) are owned by Viewpost or its licensors.
7. EXPORT/IMPORT RESTRICTION. You agree that you will not export, reexport, or import the Software in any form without the appropriate government licenses and the approval of Viewpost. You understand that under no circumstances may the Software be exported to any country subject to U.S. embargo or to U.S.-designated denied persons or prohibited entities or U.S. specially-designated nationals.
8. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT VIEWPOST, ITS LICENSORS AND SUPPLIERS SHALL NOT BE LIABLE FOR ANY LOSS OF DATA OR PRIVACY, LOSS OF INCOME, LOSS OF OPPORTUNITY OR PROFITS, COST OF RECOVERY, LOSS ARISING FROM YOUR USE OF THE SOFTWARE, OR DAMAGE ARISING FROM YOUR USE OF THIRD PARTY SOFTWARE OR HARDWARE OR ANY OTHER SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; OR THE USE OF THE SOFTWARE, UPDATES OR ACCOMPANYING DOCUMENTATION; OR YOUR EXPORTATION, REEXPORTATION, OR IMPORTATION OF THE SOFTWARE, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF VIEWPOST, ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE LIABILITY OF VIEWPOST, ITS LICENSORS OR SUPPLIERS UNDER THIS AGREEMENT WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT PAID BY YOU TO VIEWPOST FOR THE SOFTWARE DURING THE ONE (1) MONTH IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY, OR, IF GREATER, THE LOWEST AMOUNT PERMITTED UNDER APPLICABLE LAW. THE PARTIES AGREE THAT THE FOREGOING REPRESENTS A FAIR ALLOCATION OF RISK HEREUNDER. THE ALLOCATION OF RISK IS MATERIAL TO THIS AGREEMENT, AND VIEWPOST IS WILLING TO ENTER INTO THIS AGREEMENT ONLY SUBJECT TO THESE LIMITATIONS ON LIABILITY.
9. TERMINATION. This Agreement is effective until terminated. You may terminate this Agreement at any time by removing the Software from your computers and destroying all copies and providing written notice to Viewpost with the serial numbers of the terminated licenses (to the extent such serial numbers exist). Viewpost may terminate this Agreement and exercise all other applicable rights and remedies at any time for any reason or no reason. Unauthorized copying of the Software or the accompanying documentation or otherwise failing to comply with the license grant of this Agreement will result in automatic termination of this Agreement and will make available to Viewpost all other legal remedies. You agree and acknowledge that your breach of this Agreement shall cause Viewpost irreparable harm for which monetary damages alone would be inadequate and that, to the extent permitted by applicable law, Viewpost shall be entitled to injunctive or equitable relief without the need for posting a bond. Upon termination of this Agreement, the license granted herein will terminate and you must immediately destroy the Software and accompanying documentation, and all backup copies thereof.
10. MISCELLANEOUS. This Agreement is governed by the laws of the State of Florida without reference to conflict of laws principles and excluding the United Nations Convention on Contracts for the International Sale of Goods. All disputes arising out of or relating to these Terms shall be finally resolved by arbitration conducted in the English language in Orlando, Florida, U.S. under the commercial arbitration rules of the American Arbitration Association. The parties shall appoint as sole arbitrator a retired judge who presided in the State of Florida. The parties shall initially bear equally the cost of the arbitration (except that the prevailing party shall be entitled to an award of reasonable attorneys’ fees incurred in connection with the arbitration as well as such costs and expenses incurred by the prevailing party prior to, during and after arbitration including the prevailing party’s initial arbitration costs, in such an amount as may be determined by the arbitrator). The parties agree that any such arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitrator, except as may lawfully be required in judicial proceedings relating to the arbitration, by regulatory authorities or applicable law. All decisions of the arbitrator shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding this, application may be made to any court for a judicial acceptance of the award or order of enforcement and Viewpost shall be entitled to seek injunctive relief or other equitable remedies from any court of competent jurisdiction. If any provision of this Agreement is invalid or unenforceable under applicable law, it shall be to that extent deemed omitted and the remaining provisions will continue in full force and effect. To the extent a provision is deemed omitted, the parties agree to comply with the remaining terms of this Agreement in a manner consistent with the original intent of the Agreement. Please read this Agreement carefully. Viewpost will occasionally update this Agreement. When we do, we will also revise the “last updated” date at the bottom of this page. To the extent Viewpost makes any material change to this Agreement, you will receive a notice via email, on the Viewpost Website or the Viewpost service platform prior to the change becoming effective.
11. HOW TO CONTACT VIEWPOST. Should you have any questions concerning this Agreement or want to contact Viewpost for any reason, write to Viewpost at the following address: Viewpost North America, LLC, Attn: Legal, 315 E. Robinson Street, Suite 225, Orlando, Florida, 32801.