Four Tier Software, LLC

END-USER LICENSE AGREEMENT (aka Terms of Use)

Last Modified: 12-30-2021

THIS END-USER LICENSE AGREEMENT (aka Terms of Use) (“Agreement”) is a legal agreement between you or the legal entity and its affiliates on whose behalf you are entering this Agreement (collectively, “you” or “Licensee”), and Four Tier Software, LLC (“Licensor”) and sets forth the general terms and conditions pursuant to which Licensor will license the software applications you have chosen to download free of charge and/or purchase for a fee (the “Software”), as more fully described on www.4tier.com.

CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE YOU CLICK ON THE ["ACCEPT" OR “I AGREE” BUTTON].  BY CLICKING ON THE ["ACCEPT" OR “I AGREE” BUTTON], YOU AGREE THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND LICENSEE SHALL BE LEGALLY BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN IN THE SAME MANNER AS IF LICENSEE EXECUTED A WRITTEN AGREEMENT IN TRADITIONAL FORM.  IF YOU DO NOT HAVE SUCH AUTHORITY OR YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK THE ["I DO NOT ACCEPT" OR “I DO NOT AGREE” BUTTON] OR EXIT OUT OF THE ORDER PAGE WITHOUT COMPLETING YOUR ORDER, AND YOU SHALL NOT DOWNLOAD OR USE THE SOFTWARE IN ANY MANNER.

GRANT OF LICENSE

SOFTWARE

Subject to Licensee’s compliance with the terms and conditions of this Agreement, Licensor hereby grants Licensee a non-exclusive, non-transferable, personal license to download and use the Software, including all user manuals and documents provided in connection therewith, if any, for its internal business purposes only.  Licensee acknowledges and agrees that any third party software that is necessary to use the Software shall be purchased separately by Licensee at its sole cost. Licensor shall have no responsibility or liability whatsoever for Licensee’s use of any third party software with the Software.

Restrictions.  Licensee shall not transfer, license or assign any of Licensee’s rights under this Agreement, or otherwise transfer the Software to a third party or use the Software for the benefit of a third party, operate a service bureau or otherwise exceed the scope of license herein granted.  The Software, in its entirety, is protected by copyright or other intellectual property laws of the United States and international treaties. Except as provided herein, Licensee shall not, and shall not authorize others to use, make or merge a copy, adaptation, transcription, translation, derivative, or modification of any portion of the Software. Any breach or violation of these terms will violate Licensor’s intellectual property rights in and to the Software. Licensor further agrees not to use the Software in any way that violates any applicable federal, state, local and international law or regulation.

Ownership; Reservation of Rights.  Title and full ownership of all rights (including all associated intellectual property rights) to the Software and documentation, any improvements, enhancements, or modifications thereto, and any copies or portions thereof licensed under this Agreement shall remain solely with Licensor or its licensors as applicable.  All rights not expressly granted to Licensee herein are hereby expressly reserved by Licensor.

No Services; No Rights to Upgrades or Updates.  The License Fee (as defined below) if applicable does not include and Licensor will not provide any maintenance, support or training services under this Agreement.  The license granted herein does not entitle Licensee to, and Licensor will not supply, any updates, upgrades, new versions, or modifications to the Software licensed under this Agreement. 

Import/Export.  The Software may be subject to export controls administered by the United States and other foreign countries. Export or diversion contrary to U.S. law is strictly prohibited. Licensee agrees to comply with the requirements of the U.S. Export Administration Regulations and all applicable international, national, state, regional and local export and import control laws and regulations, including any applicable import and use restrictions. Licensee acknowledges that it is its responsibility to comply with any and all export and import laws and that Licensor has no responsibility for Licensee’s export and import activities.

FEES 

If the Software being licensed to Licensee hereunder is provided by Licensor free of charge, this provision shall not apply to such free Software.  However, if a fee is required in order for Licensee to download and use the Software in accordance to the license granted in this Agreement, in consideration of the license rights granted above, Licensee shall pay the license fee as described and pursuant to the terms found www.4tier.com (the “License Fee”).  All amounts payable hereunder by Licensee shall be payable in United States Dollars without deductions for taxes, assessments, fees, or charges of any kind.  [All payments are final and the License Fee shall not be refunded under any circumstances.] If license fees are collected via a third-party, and not directly paid to Four Tier Software, LLC, the Fee Policy of the third-party will take precedence over this Four Tier Fee policy.

Taxes.  Licensee shall be responsible for paying all (i) sales, use, excise, value-added, or other tax or governmental charges imposed on the licensing or use of the Software hereunder, and (ii) import or export duties or like charges.

[Payment Options.  Licensor accepts both credit and debit cards as payment.  By submitting Licensee’s order, Licensee acknowledges that it is authorized to use the designated credit or debit card and that Licensee authorizes Licensor to charge Licensee’s purchase to that credit or debit card. When Licensee provides its payment information, Licensee authorizes Licensor (or a third party payment processor) to process and store Licensee’s payment and related information. In the event that the credit or debit card Licensee designates cannot be verified, is invalid or is not otherwise acceptable, Licensor may suspend or cancel Licensee’s order automatically. Licensee is responsible for resolving any problem Licensor encounters in order to proceed with Licensee’s order of the Software.] If license fees are collected via a third-party, and not directly paid to Four Tier Software, LLC, the Payment Policy of the third-party will take precedence over this Four Tier Payment policy.

[Third Party Card Processor.  Licensor utilizes a third-party payment processor to process all credit and debit card transactions initiated through www.fourtiersoftware.com.  While Licensor collects Licensee’s debit or credit card information through www.4tier.com, Licensor does not store such information.] 

TERM AND TERMINATION

This Agreement begins on the Effective Date and continues unless earlier terminated pursuant to this Section. 

Termination by Licensor.  If Licensee breaches any provision of this Agreement, Licensor may notify Licensee in writing of such material breach.  If Licensee does not cure such material breach within fifteen (15) days of its receipt of written notice from Licensor, Licensor may terminate this Agreement without further notice. 

Effect of Termination.  Upon termination of this Agreement, all of Licensee’ rights to use the Software under this Agreement shall cease and Licensee shall destroy all copies of the Software. 

PRIVACY POLICY/OTHER POLICIES

Licensor respects the privacy of authorized users of its Software. Licensor’s policies with regard to personal information Licensor collects from Licensee and how that information is used and shared is governed by our Privacy Policy, which may be found here: [www.4tier.com/privacy]. [In addition, when using particular features offered through the Software, you shall be subject to any posted policies and guidelines applicable to such features available through Software, including any terms or conditions applicable to features provided in conjunction with any of our content and/or business partners. All such rules and guidelines are hereby incorporated by this reference into this Agreement.]

DISCLAIMER OF WARRANTIES

LICENSOR SHALL HAVE NO LIABILITY AND MAKES NO WARRANTY WITH RESPECT TO THE ACCURACY OR THE RESULTS PRODUCED BY THE SOFTWARE AND LICENSEE HEREBY RELEASES LICENSOR FROM THE SAME.  THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS WITH NO WARRANTIES OF ANY KIND.  LICENSOR DOES NOT REPRESENT OR WARRANT AGAINST ANY ERRORS OR INTERRUPTIONS IN THE SOFTWARE’S PERFORMANCE OR THAT ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING THE SOFTWARE OR ANY SERVICES PROVIDED HEREUNDER, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF DESIGN, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, EVEN IF LICENSOR HAS BEEN INFORMED OF SUCH PURPOSE.

LIMITATION OF LIABILITY

LICENSEE ACKNOWLEDGES AND AGREES THAT THE LICENSE FEE WHICH LICENSOR CHARGES HEREUNDER (IF APPLICABLE) DOES NOT INCLUDE ANY CONSIDERATION FOR ASSUMPTION BY LICENSOR OF THE RISK OF LICENSEE'S CONSEQUENTIAL OR INCIDENTAL DAMAGES WHICH MAY ARISE IN CONNECTION WITH LICENSEE'S USE OF THE SOFTWARE. ACCORDINGLY, LICENSEE AGREES THAT LICENSOR SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY PUNITIVE, LOSS-OF-PROFIT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE LICENSING OR USE OF THE SOFTWARE OR THIS AGREEMENT GENERALLY. LICENSOR WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT LICENSOR’S EQUIPMENT, COMPUTER PROGRAMS, DATA OR SYSTEMS DUE TO LICENSOR’s USE OF THE SOFTWARE.

NOTWITHSTANDING ANY PROVISION HEREIN TO THE CONTRARY, THE MAXIMUM LIABILITY OF LICENSOR TO LICENSEE OR ANY OTHER PARTY OR PERSON WHATSOEVER ARISING OUT OF OR IN THE CONNECTION WITH ANY LICENSE OR USE OF THE SOFTWARE OR ANY SERVICE DELIVERED TO LICENSEE HEREUNDER, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, WARRANTY, TORT OR OTHERWISE, SHALL IN NO CASE EXCEED THE LICENSE FEE PAID TO LICENSOR BY LICENSEE FOR THE SOFTWARE.

THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO LICENSEE BEING ABLE TO OFFER CERTAIN SOFTWARE FREE OF CHARGE OR IF APPLICABLE THE LICENSE FEE BEING CHARGED FOR THE SOFTWARE AND THAT, WERE LICENSOR TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, LICENSOR WOULD NOT BE ABLE TO OFFER THE SOFTWARE FREE OF CHARGE OR SUCH LICENSE FEE IF APPLICABLE WOULD BE SUBSTANTIALLY HIGHER.

INDEMNIFICATION

Licensee agrees to defend, indemnify and hold harmless Licensor, its affiliates and licensors and their respective officers, directors, members, employees, contractors, agents, licensors and suppliers from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) resulting from Licensee’s breach or violation of this Agreement or Licensee’s use of the Software.

CONFIDENTIALITY 

Each party (the “Receiving Party”) acknowledges that the Confidential Information (as hereinafter defined) of the other party (the “Disclosing Party”) may contain information valuable to the Disclosing Party and the Receiving Party agrees: (a) the Receiving Party shall protect the Disclosing Party’ s Confidential Information using the same degree of protection it uses to protect its own Confidential Information, but in no case less than reasonable care; (b) Confidential Information shall remain the property of the Disclosing Party, (c) Receiving Party shall not make use of Disclosing Party’s Confidential Information, except as authorized by this Agreement and to the extent necessary for performance or enforcement of this Agreement, and (d) Receiving Party shall keep Disclosing Party’s Confidential Information confidential and not disclose to any third party, except to such Receiving Party’s employees and contractors who need to know such information in order for such party to perform this Agreement and only to the extent they are bound by confidentiality and non-use obligations not less restrictive than this Agreement. 

“Confidential Information” (a) includes the Software and any documentation, (b) information which is, or should be reasonably understood to be, confidential or proprietary information of the Disclosing Party (and its suppliers, third party providers and customers), including without limitation information concerning business, products, services, customer data, reports, finances, software, notes, documentation, tools, processes, protocols, product designs and plans, customer lists and other marketing and technical information and the terms of this Agreement, whether disclosed orally or in writing by any other media; and (b) excludes information that: (i) was in the public domain at the time it was communicated to the Receiving Party by the Disclosing Party; (ii) is independently developed by the Receiving Party without reference to or use of the Confidential Information of the Disclosing Party; or (iii) was rightfully in the Receiving Party’s possession free of any obligation of confidence at the time it was communicated to the Receiving Party by the Disclosing Party. 

Notwithstanding the foregoing, the Receiving Party shall not be in violation of this Section with regard to a disclosure that was in response to a valid order of a court or tribunal of competent jurisdiction, or pursuant to any applicable law or regulations, provided that the Receiving Party provides the Disclosing Party with prior written notice of such disclosure in order to permit the Disclosing Party to seek confidential treatment of such information.

The parties hereby acknowledge and agree that money damages are not a sufficient remedy for any breach of this Section and that the Disclosing Party shall be entitled to injunctive or other equitable relief to remedy any such breach or threat of breach by the Receiving Party all without having to prove actual damages and/or to post bond or other form of security.  Such remedy shall not be deemed the exclusive remedy for any breach of this Section, but shall be in addition to all other rights and remedies available at law or in equity. 

OPEN SOURCE COMPONENTS

The Software may use or include one or more of the open source software components listed in Licensor’s open source attribution file, which is available [at www.4tier.com/opensource]. Please refer to the open source file for the open source license disclosures and pertinent terms.

MISCELLANEOUS PROVISIONS

Notice.  All notices and communications required or permitted under this Agreement will be in writing and will be sent by registered or certified mail, postage prepaid, return receipt requested, facsimile transmission (the “Fax”), with confirmed answer back, or electronic mail, with confirmation of receipt, to Licensor at the address below or Licensee at the address provided during the Software order process or at any other respective addresses as the parties may from time to time specify by notice to the other given as provided in this Section.

Waiver.   No right under this Agreement shall be deemed to be waived except by notice in writing signed by each party.  A waiver by either party pursuant to this Section shall not prejudice its rights in respect of any subsequent breach of this Agreement by the other party.  Subject to this Section, any failure by either party to enforce any provisions of this Agreement, or any forbearance, delay or indulgence granted by either party to the other party shall not be construed as a waiver of rights under this Agreement.

Entire Agreement.   This Agreement constitutes the entire agreement between the parties for the subject matter covered herein.  All prior statements and understating in relation thereto are hereby superseded.

Modifications.  No modification or alteration of this Agreement shall be valid except in writing signed by each party.  Without limiting the generality of the foregoing, the parties specifically agree that any updates or upgrade to the Software that may be provided by Licensor to Licensee during the term of this Agreement shall be governed exclusively by this Agreement.

Severability.   If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement shall remain otherwise in full force apart from the such provision which shall be deemed deleted.

Assignment.   Licensee shall not assign this Agreement without the express written consent of Licensor. Licensor may assign this Agreement without the prior written consent of Licensee.

Governing Law; Venue; Attorney’s Fees.   This Agreement and the performance of all obligations hereunder shall be governed by and construed in accordance with the laws of the State of Colorado, without regard to the principles of conflicts of law thereof, and the parties hereto submit to the exclusive jurisdiction of the state or federal courts resident in Denver, Colorado. In addition, the prevailing party in an action to enforce this Agreement or to recover damages for its breach shall be entitled to an award of reasonable attorneys’ fees and its costs.

Licensee Questions or Comments.  The Software is provided by Four Tier Software, LLC, 10851 S Crossroads Dr Suite E, Parker, CO 80134.

If you have any questions or comments about the Software, please contact us by e-mail at FBSupport@4tiersoftware.com

[End of Agreement]