ATTENTION! Important: the following terms and conditions govern use of the DaySmart Technology (defined in Section 1 below) made available by DaySmart Software Inc. (“DaySmart”) and its licensors and suppliers. By registering for or using the DaySmart Technology, Customer (defined in Section 1 below) hereby agrees to be bound by the terms of this Orchid Medical Spa Software License Agreement (this “Agreement”). If Customer does not agree to the terms of this Agreement, Customer may not use the DaySmart Technology. If you are acting on behalf of another person or entity, you represent and warrant that you have the authority to bind such person or entity to this Agreement.
1. DEFINITIONS. In addition to terms defined elsewhere in this Agreement, the following terms will have the meaning ascribed below:
2. SCOPE. This Agreement applies to Customer’s and its authorized users’ access to and use of any DaySmart Technology, but does not apply to any access and use of the Services, which is subject to a separate cloud services agreement. The terms in the attached Exhibit A will apply only if Customer accesses or uses the Mobile App.
3. LICENSE TO SOFTWARE. Subject to the terms of this Agreement, DaySmart hereby grants Customer during the Term (defined in Section 9 below) a limited, non-exclusive, non-transferable, revocable, and non-sublicensable license to install and operate the Software: (a) in binary executable form only on servers operated and managed by or on behalf of Customer, (b) internally within Customer’s organization, (c) solely for Customer’s business purposes, and (d) in accordance with applicable law and any usage limitations applicable to the license purchased by Customer. Customer will be responsible for all access and use of the DaySmart Technology by its users, including for ensuring that such users comply with the terms of this Agreement.
4. LICENSE RESTRICTIONS. Section 3 states the entirety of Customer’s rights with respect to the Software, and DaySmart reserves all rights in and to the Software not expressly granted to Customer in this Agreement. Without limiting the foregoing, Customer will not do, or authorize or permit any third party to do, any of the following: (a) modify, translate, copy, adapt, reverse engineer (except to the extent applicable laws specifically prohibit such restriction), decompile, disassemble, or create derivative works based on the DaySmart Technology; (b) access or use the DaySmart Technology in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas; (c) allow unauthorized third party access to the DaySmart Technology; (d) attempt to gain unauthorized access to the DaySmart Technology or any other DaySmart customer’s account; (e) use the DaySmart Technology in any manner that is not in accordance with applicable documentation and all applicable laws; (f) rent, lease, distribute, timeshare, use as a service bureau, grant a security interest in, transfer rights to, or make available the DaySmart Technology to any third party; (g) use the DaySmart Technology to build a competitive product or service or to benchmark with a third-party product or service; or (h) remove any proprietary notices or labels displayed in the DaySmart Technology or on its output.
5. OWNERSHIP. DaySmart and its licensors and suppliers will retain all title, ownership rights and interest in and to the DaySmart Technology, including all copyright, patent, trademark, trade secret, and all other intellectual property rights of whatever nature in the DaySmart Technology. Except for the license expressly granted in Section 3 and Exhibit A, there are no other licenses granted to Customer, whether by implication, estoppel, or otherwise.
7. UPDATES. Customer authorizes DaySmart to provide updates to the DaySmart Technology, which may be provisioned automatically to the computers and devices upon which the DaySmart Technology is installed. Any software that updates, supplements or replaces the original DaySmart Technology is governed by this Agreement, unless separate license terms accompany such update, in which case those separate terms will govern if there is a conflict with this Agreement or as otherwise provided in those separate terms.
9. TERM; TERMINATION. The term of this Agreement commences upon DaySmart’s delivery of the Software to Customer and will remain in full force until terminated in accordance with this Section 9 (“Term”).
10. LIMITED WARRANTY. For a period of 90 days from the date of DaySmart’s initial delivery of the Software to Customer (“Warranty Period”), DaySmart warrants that the Software will operate in material conformity with the then-current standard documentation under normal use, only when used in connection with hardware and hardware support items (including cables, connectors, interfaces, and adaptors) purchased from DaySmart, or that meet the specifications provided by DaySmart on its website, and only when using the manufacturer’s drivers or direct (serial) connection while Microsoft Windows is operating in the following default regional setting: “English (US)” (“Limited Warranty”). If the Software does not perform in accordance with the Limited Warranty during the Warranty Period, upon written notice by Customer and DaySmart’s verification of any such nonconformity, DaySmart will use reasonable efforts to correct any deficiencies in the Software so that it performs in accordance with the Limited Warranty or, alternatively in DaySmart’s sole discretion, refund to Customer the Fees paid for the Software; provided, however, that Customer provides all information reasonably requested by DaySmart to enable it to cure the nonconformity. The foregoing remedy is Customer’s sole and exclusive remedy, and DaySmart’s sole obligation, in the event of nonconformity of the Software with the Limited Warranty. The Limited Warranty specifically excludes: (a) any hardware purchased from DaySmart or otherwise used in connection with the Software; (b) minor defects or errors not material to the core functionality of the Software; and (c) defects or deficiencies resulting from: (i) misuse of the Software; (ii) modifications to the Software not made by DaySmart; (iii) use of the Software with items not provided by DaySmart other than the hardware and operating system software for which the Software were designed; or (iv) errors, defects or deficiencies in any data or other items furnished by Customer. DaySmart will not be responsible under the Limited Warranty for correcting problems if Customer fails to implement any correction or update made available by DaySmart. If there are any defects in third-party hardware purchased from DaySmart, the manufacturer of such hardware will be solely responsible for such defects, and Customer will look solely to such manufacturer for any available remedies.
11. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 10, THE DAYSMART TECHNOLOGY IS PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS, DEFECTS AND ERRORS AND WITHOUT WARRANTY OF ANY KIND. NO DEALER, AGENT OR EMPLOYEE OF DAYSMART IS AUTHORIZED TO MAKE ANY OTHER WARRANTY REGARDING THE DAYSMART TECHNOLOGY. DAYSMART, AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS CUSTOMER MAY OBTAIN BY USING THE DAYSMART TECHNOLOGY, THAT THE DAYSMART TECHNOLOGY IS SUITABLE FOR CUSTOMER’S BUSINESS, OR THAT THE DAYSMART TECHNOLOGY CAN BE USED BY CUSTOMER IN COMPLIANCE WITH ALL LAWS APPLICABLE TO CUSTOMER’S BUSINESS. DAYSMART AND ITS SUPPLIERS DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING AS TO TITLE AND NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. ALL CALCULATIONS THAT THE DAYSMART TECHNOLOGY PERFORM (INCLUDING, BUT NOT LIMITED TO CALCULATIONS RELATING TO TICKET/SALES INFORMATION, TAXES, CLIENTS, TOTALS, SERVICES, OR PRODUCTS) ARE FOR REFERENCE ONLY, AND SHOULD BE VERIFIED BY MEANS INDEPENDENT OF THE DAYSMART TECHNOLOGY. CUSTOMER ASSUMES ENTIRE RISK AS TO THE SELECTION AND SUITABILITY OF THE DAYSMART TECHNOLOGY, FOR ITS USE IN ACCORDANCE WITH APPLICABLE LAW, AND FOR THE RESULTS OBTAINED FROM THE DAYSMART TECHNOLOGY.
12. LIMITATION OF LIABILITY.
13. PRODUCT SUPPORT. Although DaySmart may provide voluntary support to Customer in connection with the DaySmart Technology, DaySmart is not obligated to provide such support, except for specific technical support purchased pursuant to monthly subscription Fees. The support policies and practices of DaySmart are subject to change without notice or obligation and may be viewed at the following website: http://www.medicalspasoftware.com/policies/. Customer is solely responsible for incorporating any customer support information provided by DaySmart into its use of the DaySmart Technology and is solely responsible for any consequences thereof. Customer will be solely responsible for the accuracy and correctness of any changes to files or data made by DaySmart at Customer’s request.
14. CONFIDENTIAL INFORMATION. In connection with this Agreement, Customer may obtain or receive non-public confidential information of DaySmart, including, but not limited to the DaySmart Technology, software, processes, designs, plans, methods, data, or other non-public information of DaySmart (collectively, “DaySmart’s Confidential Information”). Customer will not use DaySmart’s Confidential Information except to exercise rights granted under this Agreement, and will not disclose DaySmart’s Confidential Information to any third party except to individuals authorized to use the DaySmart Technology on its behalf. Customer will protect DaySmart’s Confidential Information from unauthorized access, use or disclosure, including (without limitation) by binding its employees, agents, and contractors to confidentiality obligations at least as strict as those contained in this Agreement. Customer acknowledges that DaySmart’s Confidential Information, regardless of form, is, and will always remain, the sole and exclusive property of DaySmart. Customer further acknowledges that the unauthorized use of DaySmart’s Confidential Information would cause irreparable injury to DaySmart. Consequently, Customer agrees that money damages would not be a sufficient remedy for a breach of this provision, and, in addition to all other remedies to which DaySmart may be entitled, DaySmart will also be entitled to specific performance and injunctive or other equitable relief as remedies for such breach or threatened breach by Customer. Customer agrees that on request or at the termination of this Agreement, Customer will immediately return all DaySmart’s Confidential Information and any other related tangible materials to DaySmart without retaining any copies, notes or extracts thereof.
15. INDEMNIFICATION. Customer will defend, indemnify, and hold harmless, DaySmart, and its employees, officers, directors, agents, successors, assigns, representatives and third-party contractors (“Indemnitees”) from and against all claims, suits, liabilities, damages, costs, fees, expenses, losses, costs and expenses (including attorneys’ fees) arising out of or resulting from (i) breach of this Agreement by Customer, or (ii) Customer’s use of the DaySmart Technology. DaySmart will have the right to control the defense of any such claim, at Customer’s expense.
16. MODIFICATION. DaySmart reserves the right to change or modify the terms of this Agreement or any other policies related to use of the DaySmart Technology at any time and at its sole discretion by providing notice to Customer of the amended Agreement. Customer’s continued use of the DaySmart Technology following the provision of such notice constitutes Customer’s acknowledgement and agreement to such amendments.
17. GENERAL TERMS
1. LICENSE. Subject to the terms and conditions of the Agreement, DaySmart grants each authorized user of Customer, during the term of this Agreement, a non-exclusive, non-sublicensable, non-transferable, revocable license to install and use one copy of the Mobile App in object code form only on a single personal device solely to use the DaySmart Technology in accordance with the terms of the Agreement. Any DaySmart software that updates, supplements or replaces the original Mobile App is governed by this Agreement unless separate license terms accompany such update, supplement or replacement, in which case such separate terms will govern in the event of a conflict with this Agreement or as otherwise provided in such separate terms.
2. LEGAL COMPLIANCE; EXPORT RESTRICTIONS. The Mobile App is subject to applicable United States export laws and regulations. Customer must comply with all applicable laws and regulations, including without limitation all applicable United States and international export laws and regulations, with respect to the Mobile App and related technology. Without limitation, Customer may not export, re-export or otherwise transfer the Mobile App or related technology, without a United States government license: (i) to any person or entity on any United States export control list; (ii) to any country subject to a United States sanctions; or (iii) for any prohibited end use.
3. U.S. GOVERNMENT LICENSE RIGHTS. If acquired by any agency of the United States government, such agency acknowledges that (i) the Mobile App constitutes “commercial computer software” or “commercial computer software documentation” for purposes of 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-3, as applicable, and (ii) such agency’s rights are limited to those specifically granted pursuant to this Agreement.
4. ACCESS TO DEVICE. The Mobile App will transmit certain data to DaySmart and its licensors and suppliers about or relating to the device in which it is installed, including information about Customer’s and its users’ access and use of the Mobile App. The information collected will be deemed User Data under the Agreement and subject to applicable terms therein.
5. ADDITIONAL TERMS APPLICABLE TO APPLE DEVICES. The following terms apply if Customer or any authorized user of Customer is installing, accessing or using the Mobile App on any device that contains Apple Inc.’s (“Apple”) iOS mobile operating system.