END USER LICENSE AGREEMENT (EULA)

 

            THIS SOFTWARE LICENSE AGREEMENT (“Agreement”) is entered into by and between Pro Quick Draw LLC, a Minnesota limited liability company, Licensor (the “Licensor”); and the named Licensee in the foregoing Invoice (the “Licensee” and “You”), who is being licensed to use the named software, Pro Quick Draw (the “Software”) and related documentation (“Documentation”) (the Software and Documentation are collectively referred to as the “Product”).  An amendment or addendum to this Agreement may accompany the Software and any upgrades of the Software. The Licensee agrees to be bound by the terms of this Agreement by purchasing, installing, copying, downloading or otherwise using the Software. If the Licensee does not agree to the terms of this Agreement, You may not install, copy, download or otherwise use the Software.

 

  1. Software and Documentation. The Software is an add-on software program designed to collate and organize football plays in conjunction with Microsoft Visio and PowerPoint. .  Licensor is in no way affiliated with Microsoft Visio or PowerPoint. The Documentation is the instructions, illustrations and tutorials set forth on Licensor’s official website (“Website”), as updated from time to time.

 

  1. License. Subject to Licensee’s payment of the Fees and other terms and conditions of this Agreement, Licensor grants Licensee a limited, non-exclusive, non-transferable, license to install, execute, display and otherwise use the Product for Licensee’s business purposes. The license includes the right to use the Software only on equipment owned or operated by Licensee unless Licensor otherwise agrees in writing.  “Users of Licensee” shall only include Licensee’s owners, officers, directors and employees.  If the Platinum Package is purchased, the license includes the right by unlimited Users of Licensee to use the Software.  If the Gold Package is purchased, the license includes the right to use the Software by up to ten (10) Users of Licensee. If the Silver Package is purchased, the license includes the right to use the Software by up to three (3) Users of Licensee. If the Bronze Package is purchased, the license includes the right to use the Software by one (1) User of Licensee.

 

The right to have additional users beyond those indicated herein will be at an additional cost to Licensee which will be quoted by Licensor on a case by case basis. Licensee shall not permit any affiliated entities or third parties to use, directly-access, copy, download, or install the Software for their own use. The Licensee hereby accepts the grant of such license and agrees to be bound by all conditions of this Agreement. The Software provided pursuant to this Agreement is NOT custom software specifically designed for Licensee or to meet any specific Licensee systems, applications or user functions. Licensor makes no representation to the Licensee that the Software will interface or otherwise function with Licensee’s operating system or any third-party systems or software utilized by Licensee.

 

            The license of the Product is on an annual cost. The initial license is for one (1) year, and future licenses, if purchased, will be for a similar one (1) year period. Licensor may offer the option to purchase multiple year subscriptions of the Product.

 

  1. Proprietary Rights. Licensee acknowledges and agrees that the Product contains proprietary and trade secret information of Licensor. Other than the limited license granted to Licensee under Section 2 of this Agreement, Licensor retains all ownership, copyright and proprietary rights in and to the Product, including any and all copies made by Licensee and any and all Updates or Enhancements. Licensee will have no right and will not, nor will it authorize or assist others to: (a) copy the Documentation, (b) disassemble, reverse engineer, modify, translate, alter or decompile all or any portion of the Software or otherwise discern the source code of the Software except and solely to the extent permitted under applicable law notwithstanding this restriction, or (c) use the Software on a service bureau or time sharing basis or to provide services to third parties unless as otherwise specified in separate written materials provided by Licensor to the Licensee, or (d) distribute, copy, rent, lease, sublicense, assign, transmit, sell or otherwise transfer the Product or any of Licensee’s rights therein, except such copying and transfer as expressly permitted in Section 2 of this Agreement.

 

  1. Fees and Payment. Licensee shall pay the fees (“Fees”) for the Product in U.S. dollars. Fees for the initial one (1) year license of the Product are as set forth on the emailed invoice (“Invoice”) provided to Licensee upon purchase of the Product.    Future license fees for additional yearly subscriptions of the license will be billed annually at the then current pricing for the one (1) year license of the Product. The Fees are exclusive of any and all taxes, and Licensee is responsible for payment of such taxes (excluding those based on Licensor's net income). Any unpaid portion of any Fees, or other fee, payable by Licensee to Licensor under this Agreement, as of the date of expiration or termination, shall be immediately due and payable upon its expiration or termination for any reason. Past due amounts shall be subject to a monthly service charge of one and one-half percent (1.5%) per month of the unpaid balance or the maximum rate allowable by law.

 

  1. Upgrades. During any time period that Licensee has a license to utilize the Product, Licensor will provide Licensee with any upgrades to the Product which may occur from time to time.  Purchase of the Initial License does not include any configuration or customization of the Software or Upgrades to Licensee’s system and specifications or any other services.  Licensee is solely responsible for proper configuration of all hardware and other equipment, and all databases and other software used with the Software.

 

  1. Limited Warranty / Breach of Warranty. Licensor warrants that the Software will perform substantially in accordance with the Documentation for a period of sixty (60) days from the date of delivery of the Software to Licensee (the “Warranty Period”). Licensee’s sole and exclusive remedy for breach of the Limited Warranty is as follows: Licensee will return all copies of the Software to Licensor, at Licensee’s cost, along with proof of purchase. (Licensee can obtain a step-by-step explanation of this procedure, including a return authorization code, by contacting Licensor at contact@proquickdraw.com or 312-590-7257.) At Licensor’s option, Licensor will either send Licensee a replacement copy of the Software, at Licensor’s expense, or issue a full refund. If Licensor fails to remedy such breach within a reasonable time period after receipt of Licensee’s notice, Licensee shall be entitled to terminate this Agreement (including the license) and obtain a refund of the Fees paid to Licensor. This limited warranty shall be void if Licensor determines that the Product has been used other than in accordance with the Documentation, abused, modified, altered or otherwise subjected to damage from accident or acts of nature. Licensee agrees to comply with Licensor’s reasonable instructions with respect to the alleged defective Product, which may include return of the defective Product at Licensor’s expense.

 

  1. Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.1, THE PRODUCT IS PROVIDED BY LICENSOR TO LICENSEE “AS IS,” AND LICENSOR MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING THE PRODUCT AND SPECIFICALLY DISCLAIM THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND AGAINST INFRINGEMENT, TO THE MAXIMUM EXTENT POSSIBLE BY LAW. LICENSOR DOES NOT WARRANT THAT THE PRODUCT WILL MEET LICENSEE’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. LICENSEE WILL BEAR ALL RISKS RELATING TO THE QUALITY AND PERFORMANCE OF THE PRODUCT, AND ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.

 

  1. Limitation of Liability. Notwithstanding the foregoing, LICENSOR IS NOT LIABLE TO LICENSEE FOR ANY DAMAGES, INCLUDING COMPENSATORY, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, CONNECTED WITH OR RESULTING FROM THIS LICENSE AGREEMENT OR LICENSEE’S USE OF THIS SOFTWARE.  Licensor’s entire liability under this Agreement for any damages from any cause whatsoever, regardless of form or action, whether in contract negligence or otherwise, shall in no event exceed an amount equal to the Fees paid by Licensee.

 

  1. Licensee Indemnification. Licensee agrees to defend and indemnify Licensor and hold Licensor harmless from all claims, losses, damages, complaints, or expenses connected with or resulting from Licensee’s business operations and use of the Software or Licensee’s breach of this Agreement.

 

  1. Right to Terminate. Licensor has the right to terminate this License Agreement and Licensee’s right to use this Software upon any material breach by Licensee.

 

  1. Return of Software Upon Termination. Licensee agrees to return to Licensor or to destroy all copies of the Software upon termination of the License.

 

  1. System Tampering. Under no circumstances shall the Licensee or its employees, or third parties exercising Licensee's rights on Licensee's behalf, modify, decompile, disassemble or otherwise reverse engineer the Software. The Licensee shall be responsible for any breaches or violations of this Agreement by its employees or other such third parties.

 

  1. Third Party Software. LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT, STATUTORY OR BY OPERATION OF LAW) WITH RESPECT TO THIRD PARTY PRODUCTS, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY OR SUITABILITY, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, EXCEPT AS SET FORTH HEREIN.  Licensor shall have no liability to Licensee in the event that Visio makes modifications to its software which subsequently renders the Software non-compatible with Visio software.

 

  1. Miscellaneous. This Agreement constitutes the entire agreement of the parties, and supersedes any prior or contemporaneous agreements between the parties, with respect to the subject of this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota exclusive of its conflict of laws principles. Any dispute arising under or relating to this Agreement will be resolved in the state or federal courts in Saint Paul, Minnesota, and the parties hereby expressly consent to jurisdiction therein. Licensor shall be awarded its reasonable attorneys' fees and costs in any suit or proceeding arising out of or related to this Agreement. Licensor shall have the right to seek injunctive and other equitable relief in the enforcement of its rights under this Agreement. If any provision of this Agreement shall be declared invalid, illegal or unenforceable, all remaining provisions shall continue in full force and effect. Licensee may delegate, assign or transfer this Agreement, or any of its rights and obligations under this Agreement, only by a writing signed by Licensor. Licensor shall have the right to assign its rights and obligations under this Agreement without the consent of Licensee.  Licensor shall have the right to terminate production of Software and Upgrades at any time without further obligation to Licensee.