SOFTWARE AS A SERVICE AGREEMENT
BEFORE YOU ("CUSTOMER") INSTALL OR ACCESS OR OTHERWISE USE THE SERVICE OR CLICK ON THE "END USER LICENSE AGREEMENT ACCEPTANCE" BUTTON AT STORE REGISTRATION FORM, CAREFULLY READ THE TERMS AND CONDITIONS OF THESE AGREEMENTS. BY INSTALLING OR OTHERWISE USING OR ACCESSING THE SERVICE OR ANY OF THE SOFTWARE CONTAINED WITHIN THE SERVICE BY CLICKING ON THE END USER LICENSE AGREEMENT ACCEPTANCE BUTTON, YOU ARE CONSENTING TO BE BOUND BY, AND ARE BECOMING A PARTY TO, THIS AGREEMENT.
This Software as a Service (SaaS) Agreement (the "Agreement"), dated as of today (the "Effective Date"), is by and between GEMALLY LLC, a Delaware corporation with offices located at 12819 SE 38th St Suite 230, Bellevue, Washington 98006 ("Provider") and ("Customer).
WHEREAS, Customer wishes to procure from Provider the software services described herein, and Provider wishes to provide such services to Customer, each on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
"Access Credentials" means any user name and password to verify an individual's identity and authorization to access and use the Hosted Services.
"Authorized User" means employees, contractors, agents and other individuals authorized by Customer to use the Services pursuant to Section 3.1 and the other terms and conditions of this Agreement.
"Customer Data" means, other than Resultant Data, information, data and other content, in any form or medium that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services.
"Customer Systems" means the Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.
"Documentation" means any manuals, instructions or other documents or materials that the Provider provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services or Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
"Harmful Code" means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Services or Provider Systems as intended by this Agreement. Harmful Code does not include any Provider Disabling Device.
"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
"Losses" means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
"Permitted Use" means any use of the Services by an Authorized User for the benefit of Customer solely in or for Customer's internal business operations.
"Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
"Personal Information" means any information that does or can identify a specific individual or by or from which a specific individual may be identified, contacted or located.
"Process" means to take any action or perform any operation or set of operations that the SaaS Services are capable of taking or performing on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy. "Processing" and "Processed" have correlative meanings.
"Provider Disabling Device" means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by Provider or its designee to disable Customer's or any Authorized User's access to or use of the Services automatically with the passage of time or under the positive control of Provider or its designee.
"Provider Materials" means the Service Software, Specifications, Documentation and Provider Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Provider or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials include Resultant Data and any information, data or other content derived from Provider's monitoring of Customer's access to or use of the Services, but do not include Customer Data.
"Provider Personnel" means all individuals involved in the performance of Services as employees, agents or independent contractors of Provider or any Subcontractor.
"Provider Systems" means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Provider or through the use of thirdparty services.
"Representatives" means, with respect to a party, that party's employees, officers, directors, consultants, and agents.
"Resultant Data" means information, data and other content that is derived by or through the Services from Processing Customer Data and is sufficiently different from such Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further Processing of such information, data or content.
"Service Software" means the Provider software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that Provider provides remote access to and use of as part of the Services.
"Specifications" means the specifications for the Services set forth in Schedule A and, to the extent consistent with and not limiting of the foregoing, the Documentation.
"Third Party Materials" means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to Provider.
THIS SECTION 13 SETS FORTH CUSTOMER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND PROVIDER MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
This Schedule A, Provider’s Services and Fees Schedule, shall be incorporated in and governed by the terms of the Software as a Service Agreement by and between GEMALLY LLC, a Delaware corporation with offices located at 12819 SE 38th St Suite 230, Bellevue, Washington 98006 ("Provider") and ("Customer”) as amended (the “Agreement”). Unless expressly provided for in this Schedule A, in the event of a conflict between the provisions contained in the Agreement and those contained in this Schedule A, the provisions contained in this Schedule A shall prevail.
Gemally is a multi-vendor, jewelry and gemstone, cloud-based management platform which improves jewelry manufacturing efficiency and end-user convenience. Gemally-powered websites engage jewelry shoppers and build consumer confidence by providing an interactive shopping experience. Gemally jewelry retail subscribers build brand recognition while showcasing their unique jewelry designs.
END USER LICENSE AGREEMENT
This End-User License Agreement is a legal agreement between you (the "END-USER") and GEMALLY LLC (“GEMALLY”) with its principal place of business at 12819 SE 38TH ST SUITE 230, Bellevue, Washington, USA. By accessing or using the GEMALLY object code (“SOFTWARE”), including a bug fix, patch, error correction and/or other minor enhancement (“UPDATES”), END-USER agrees to be bound by the terms of this End User License Agreement and all amendments made hereto by written agreement between the parties (“AGREEMENT”). If END-USER does not agree with the terms of this AGREEMENT, END-USER shall not access the SOFTWARE or shall discontinue use of the SOFTWARE. In consideration of the promises, covenants and agreements herein contained, the parties hereto agree as follows:
Notwithstanding any damages you might incur, the entire liability of GEMALLY and any of its Resellers, licensors and suppliers under this AGREEMENT and your exclusive remedy under this AGREEMENT will be limited to the greater of the amount actually paid by you for the SOFTWARE or U.S. $5.00. NOTWITHSTANDING ANY OTHER TERM OF THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL GEMALLY (OR ITS EMPLOYEES, AGENTS, SUPPLIERS, RESELLERS, AND LICENSORS) BE LIABLE TO END-USER OR ANY THIRD PARTY CLAIMING THROUGH END-USER FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES HOWSOEVER CAUSED (INCLUDING DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, INCREASED COSTS OF OPERATION, LITIGATION COSTS AND THE LIKE) WHETHER BASED UPON A CLAIM OR ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, IN CONNECTION WITH THE SUPPLY, USE OR PERFORMANCE OF THE SOFTWARE, REGARDLESS OF WHETHER GEMALLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGE WAS REASONABLY FORESEEABLE.
BECAUSE SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF THE FOREGOING WARRANTIES OR LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO END-USER. IN THE EVENT APPLICABLE PROVINCIAL, STATE, FEDERAL OR OTHER LAW DOES NOT ALLOW THE COMPLETE EXCLUSION OR LIMITATION OF LIABILITY OF CLAIMS AND DAMAGES AS SET FORTH IN THIS AGREEMENT, THE LIABILITY OF GEMALLY, ITS EMPLOYEES, RESELLERS, AND AGENTS IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
GEMALLY may assign its rights hereunder without the consent of or notice to END-USER. END-USER shall not transfer, assign, sub-license or pledge its rights or obligations hereunder, including by operation of law (e.g., in connection with a merger transaction), without the written consent of GEMALLY.