Fresh Store Builder End User License Agreement
I. THIS END USER LICENSE AGREEMENT (HEREINAFTER, "AGREEMENT" OR "END USER LICENSE AGREEMENT") IS A LEGAL AGREEMENT BETWEEN THE PERSON, COMPANY, OR ORGANIZATION THAT HAS INSTALLED AND LICENSED THIS SOFTWARE (HEREINAFTER, "YOU" OR "ORGANIZATION") AND Fresh Store Builder. BY INSTALLING AND USING THE SOFTWARE, CUSTOMER ACCEPTS THE SOFTWARE AND AGREES TO ALL OF THE TERMS OF THIS AGREEMENT.
YOU SHOULD READ THIS AGREEMENT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE SOFTWARE. BY INSTALLING AND/OR USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY ITS TERMS AND A PARTY TO THE AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, OR DO NOT HAVE AUTHORITY TO BIND YOUR ORGANIZATION TO THESE TERMS, THEN YOU SHOULD DISCONTINUE THE CURRENT INSTALLATION AND DO NOT INSTALL THE SOFTWARE.
THIS END USER LICENSE AGREEMENT APPLIES ONLY TO THE VERSION OF FRESH ASSOCIATE SOFTWARE CURRENTLY BEING DOWNLOADED OR INSTALLED. THIS AGREEMENT DOES NOT APPLY TO ANY PAST OR FUTURE SOFTWARE SUPPLIED BY Fresh Store Builder. PAST OR FUTURE Fresh Store Builder SOFTWARE SHALL REMAIN SUBJECT TO THE ORIGINAL LICENSING AGREEMENT PROVIDED WITH THAT PRODUCT.
II. LICENSE GRANTS
The licenses granted in Section II of this Agreement are subject to all of the terms and conditions set forth in this End User License Agreement:
(A). Subject to the provisions of Sections II(B) and II(C), the payment of applicable license fees, and subject to the other terms and conditions of this Agreement, Fresh Store Builder hereby grants to you a NON-EXCLUSIVE, NON-TRANSFERABLE right to use this version of Fresh Store Builder Software and the accompanying documentation (the "Documentation"), if any, on the number of websites detailed in your license that are owned and operated by license purchaser.
(B). You may make one copy of the Software in machine-readable form solely for backup purposes. You must reproduce on any such copy all copyright notices and any other proprietary legends on the original copy of the Software. You may not sell or transfer any copy of the Software made for backup purposes.
(C). You agree that Fresh Store Builder may audit your use of the Software for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals any use of the Software by you or your organization other than full compliance with the terms of this Agreement, you shall reimburse Fresh Store Builder for all reasonable expenses related to such audit in addition to any other liabilities you may incur as a result of such non-compliance.
III. LICENSE RESTRICTIONS
(A). You may not rent, lease, loan, sublicense or resell the Software. You may not permit third parties to benefit from the use or functionality of the Software via a timesharing, service bureau or other arrangement. You may not transfer any of the rights granted to you under this Agreement. You may not reverse engineer, decompile, or disassemble the Software, except to the extent the foregoing restriction is expressly prohibited by applicable law. You may not modify, or create derivative works based upon, the Software in whole or in part. You may not copy the Software or Documentation, except that you may either (a) make one copy of the Software solely for backup or archival purposes, or (b) transfer the Software to a single hard disk provided that you keep the original solely for backup or archival purposes. You may not remove any proprietary notices or labels on the Software. All copies must contain the same proprietary notices that appear on and in the Software. All rights not expressly set forth hereunder are reserved by Fresh Store Builder.
(B). You may not alter, merge, modify, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form.
(C). Unless otherwise provided herein, you may not rent, lease, or sublicense the Software.
(D). You are purchasing and installing a NOT FOR RESALE VERSION of Fresh Store Builder Software, you may not transfer any of your rights under this Agreement as part of a sale or transfer of any computer equipment or websites owned by the license holder. Any third party wishing to use this software upon the purchase of the license holder's computer equipment or websites, or for any other reason, must purchase another license to use Fresh Store Builder software and agree to the terms of this End User License Agreement. This is a NOT FOR RESALE VERSION of Fresh Store Builder software, SALE OR TRANSFER OF THIS NOT FOR RESALE VERSION IS EXPRESSLY FORBIDDEN UNDER THE TERMS OF THIS END USER LICENSE AGREEMENT.
(E). Unless otherwise provided herein, you may not modify the Software or create derivative works based upon this Software.
(F). You shall not use Fresh Store Builder Software to develop any product having the same primary function as Fresh Store Builder Software.
(G). In the event that you fail to comply with all of the terms of this End User License Agreement, Fresh Store Builder may terminate the license without refund and you must destroy all copies of the Software (with all other rights of both parties and all other provisions of this Agreement surviving any such termination).
IV. TERM OF AGREEMENT
(A). This Agreement is effective for an unlimited duration unless and until earlier terminated as set forth herein. This Agreement will terminate automatically if you fail to comply with any of the limitations or other requirements described herein. Upon any termination or expiration of this Agreement, you must destroy all copies of the Software and the Documentation. You may terminate this Agreement at any point by destroying all copies of the Software and any accompanying documentation.
V. OWNERSHIP RIGHTS
(A). This Software is protected by United States copyright laws and international treaty provisions. Fresh Store Builder and its suppliers own and retain all right, title and interest in and to the Software (as an independent work and as a necessary element for any application that you may develop using this product), including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights therein. Your possession, installation, or use of the Software does not transfer to you any title to the intellectual property in the Software, and you will not acquire any rights to the Software except as expressly set forth in this Agreement. This agreement grants you limited license to use the Software. All rights not specifically granted in this End User License Agreement, including Federal and International Copyrights, are reserved by Fresh Store Builder.
(B). You are not permitted to save, share, copy, redistribute or otherwise use any content on this website (freshstorebuilder.com), our heldesk (freshhelpdesk.com), our forum (freshmarketingforum.com). This includes but is not limited to written content, images, video and design.
(C). You are not permitted to save, share, copy, redistribute or otherwise use any content sent to you via email from Fresh Store Builder and/or our team members.
(D). You are not permitted to save, share, copy, redistribute or otherwise use any content you submit to our websites (including freshstorebuilder.com, freshhelpdesk.com, freshmarketing.com) including the contents of support tickets and emails.
VI. WARRANTY DISCLAIMER AND EXCLUSIVE REMEDY
(A). WARRANTY DISCLAIMER
THE SOFTWARE IS PROVIDED "AS IS." TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Fresh Store Builder DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR QUIET ENJOYMENT, AND NON-INFRINGEMENT WITH RESPECT TO THE SOFTWARE AND THE ACCOMPANYING DOCUMENTATION.
YOU ASSUME RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE. WITHOUT LIMITING THE FOREGOING PROVISIONS, Fresh Store Builder MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.
NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2 OR ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE WILL BE CONFERRED ON YOU UNLESS EXPRESSLY GRANTED HEREIN.
IN THE EVENT THAT APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THIS SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO SEVEN (7) DAYS FROM THE DATE OF DELIVERY. THE DATE OF DELIVERY BEING DETERMINED BY THE DATE OF INSTALLATION.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Fresh Store Builder, OR ITS EMPLOYEES, SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.
(B). EXCLUSIVE REMEDY - Fresh Store Builder and its suppliers' entire liability and your exclusive remedy for any breach of the foregoing warranty shall be, at Fresh Store Builder's option, either (1) return of the purchase price paid for the license, if any, or (2) replacement of the defective media in which the Software is contained. You must return the defective media to Fresh Store Builder at your expense with a copy of your receipt and a description of the problem. This limited warranty is void if the defect has resulted from alteration, accident, abuse, modification, or misapplication. Any replacement media will be warranted for the remainder of the original warranty period. Fresh Store Builder will use reasonable commercial efforts to supply you with a replacement copy of the Software that substantially conforms with the Software originally purchased. Outside the United States, this remedy is not available to the extent Fresh Store Builder is subject to restrictions under United States export control laws and regulations.
THIS REMEDY IS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU FOR BREACH OF EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SOFTWARE AND RELATED DOCUMENTATION.
VII. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY OR OTHERWISE, SHALL Fresh Store Builder OR ITS SUPPLIERS BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, DAMAGES FOR LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF Fresh Store Builder, ITS EMPLOYEES, OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL Fresh Store Builder BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE LIST PRICE Fresh Store Builder CHARGES FOR A LICENSE TO THE SOFTWARE, EVEN IF Fresh Store Builder SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.
(USA only) SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS AGREEMENT.
VIII. BASIS OF BARGAIN
The Limited Warranty, Disclaimer, Exclusive Remedies, and Limited Liability set forth above are fundamental elements of the basis of the agreement between Fresh Store Builder and you. Fresh Store Builder would not be able to provide this Software on an economic basis without such limitations.
(A). Forum Selection and Choice of Law
This Agreement is governed by the laws of the United States and the State of Georgia, without reference to conflict of laws principles, and the parties agree that the sole location and venue for any litigation which may arise hereunder shall be the state courts sitting in Douglas County, Georgia or the federal courts in the Northern District of Georgia to resolve any disputes arising under this Agreement. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
This Agreement sets forth and contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether written, oral, or otherwise. By entering this agreement, you consent that any varying or additional terms contained in any purchase order, document, notification, correspondence, or other communication issued by you in relation to the Software licensed hereunder shall be of no effect. This Agreement may not be modified except by a written addendum issued by a duly authorized representative of Fresh Store Builder. No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by Fresh Store Builder or a duly authorized representative of Fresh Store Builder. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. The failure or delay of Fresh Store Builder to exercise any of its rights under this Agreement or upon any breach of this Agreement shall not be deemed a waiver of those rights or of the breach. The parties confirm that it is their wish that this Agreement has been written in the English language only.
If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect.
(D). The Software and Documentation are provided with Restricted Rights. Use, duplication, or disclosure by the United States is subject to restrictions as set forth in subparagraph (c)1(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights 48 CFR 52.227-19, as applicable.
(E). No Fresh Store Builder dealer, agent or employee is authorized to make any amendment to this Agreement unless such amendment is in writing and signed by a duly authorized representative of Fresh Store Builder.
(F). You agree that your license, as covered by this agreement, is non-transferable to a third party. If you create a website for sale to a third party that uses this software, you may not transfer or offer the software to the third party with the sale of the site. Third party buyers must be referred to our site (www.freshstorebuilder.com) in order to purchase their own software license.
(G). Requests for full or partial refunds of the Fresh Store Builder script must be made within thirty (30) days of payment. Refund days are counted inclusively, including the day of purchase and the day on which you may request a refund. Refunds will be granted providing they are requested during this period. Refunds will not be granted if requested on or after this period of thirty (30) days. Refunds will only be processed through PayPal. Refunds for additional licenses are only available as part of a full refund during the first thirty (30) days. Refunds for extras (for example logo design or content creation) are not available. Refunds for additional templates are not available. Refunds for developers licenses and premium accounts are not available. Refunds are only available for the Fresh Store Builder license. An administration fee of $20 is deducted from the refund if you open a Paypal dispute or chargeback. If you contact us directly for a refund no administration fee is charged. Refund requests will only be counted when received to our support team contactable at http://helpdesk.freshstorebuilder.com and not via any other method including, but not exclusive to, forum messages, other email addresses, Twitter messages, Skype messages and other alternative forms of communication