NOTICE: READ THIS CAREFULLY BEFORE DOWNLOADING, INSTALLING, COPYING OR USING ANY DEFT SALES SOFTWARE THAT IS LINKED TO OR ACCOMPANIED BY THIS AGREEMENT BY WAY OF HTTP URL REFERENCE OR IS OTHERWISE INCLUDED IN CLICK-WRAP OR BROWSE-WRAP FORM. THIS AGREEMENT CONTAINS INDEMNITIES AND WARRANTY EXCLUSIONS. BY CLICKING THE “AGREE” BUTTON AND/OR DOWNLOADING, INSTALLING AND/OR USING DEFT SALES ON ANY OPERATING SYSTEM OR THROUGH WWW.DeftSales.COM, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND (B) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL OR USE DEFT SALES OR WWW.DeftSales.COM.
1. LICENSE GRANT: Subject to the terms of this EULA, including the Reservation of Rights, Licensor grants you a limited, non-exclusive and nontransferable license, without the right to sublicense, to:
1.1 download, install and use the Software in executable form, solely for your use in strict compliance with all applicable configuration or usage limitations on a single device or computer owned or otherwise controlled by you (“Device”) strictly in accordance with Licensor’s printed, electronic or online documentation (“Documentation”); and/or,
2. LICENSE RESTRICTIONS. Licensee shall not:
2.1 copy the Software, except as expressly permitted by this EULA;
2.2 distribute, reproduce, transmit, publish, modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable or trans-formative, of the Software;
2.3 reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
2.4 remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Software, including any copy thereof;
2.5 disclose, rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software or any features or functionality of the Software, to any third party for any reason, including by making the Software available on a network where it is capable of being accessed by more than one device at any time;
2.6 remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Software including, without limitation, attempting to circumvent any applicable configuration or usage limitations through any means or using virtualization, multiplexing, branching, or pooling technology to effectively extend the number of instances of the Software on your Device or the number of end users having access to the Software’s functionality;
2.7 use the Software in, or in association with, the design, construction, maintenance or operation of any hazardous environments or systems, including any power generation systems; aircraft navigation or communication systems, air traffic control systems or any other transport management systems; safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire or other safety response systems; and military or aerospace applications, weapons systems or environments; or
2.8 sell, create, license, provide and/or develop software, applications, online services (i.e., SaaS), computing apparatuses, consulting services, IT professional services and/or business methods that relate to or arise out of the Abstracts, Drawings, Specifications and/or Claims set forth in U.S. Patent No. 8,935,342.
3. Customer Responsibilities. You will: (a) be solely responsible for all use of the Services and Documentation under your account; (b) use the Services only in accordance with this Agreement, the Deft Sales Acceptable Use Policy and applicable law or regulation; (c) be solely responsible for all acts, omissions, and activities of yourself and your users, including their compliance with this Agreement, the Deft Sales Acceptable Use Policy and applicable law or regulation; including but not limited to the TCPA (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Deft Sales promptly of any such unauthorized access or use; (e) provide reasonable cooperation regarding information requests from law enforcement, regulators, or telecommunications providers (f) provide your name and company in any initial texts (g) honor opt out requests from Leads via all calls or texts (h) honor do not call request from Leads (i) not call or text any leads before 8am or after 9pm, local time at the Lead’s location (j) comply with all relevant laws and regulations (k) not disconnect unanswered calls for at least 15 seconds and hour rings (l) not call or text leads after 3 months if Leads has not responded to you.
4. RESERVATION OF RIGHTS. You acknowledge and hereby agree that the Software is provided under license, and not sold, to you. You do not acquire any ownership interest in the Software under this EULA, or any other rights thereto other than to use the Software in accordance with the license granted, and subject to all terms, conditions and restrictions, under this EULA. Licensor reserves and shall retain its and/or their entire right, title and interest in and to any intangible property rights, including, without limitation, the Software, including and all copyrights, trademarks and other intellectual property rights therein or relating thereto, except as expressly granted to you in this EULA.
5. COLLECTION AND USE OF YOUR INFORMATION. You acknowledge that when you download, install or use the Software, Licensor may use automatic means (including, for example, cookies and web beacons) to collect information about your Device and about your use of the Software. You also may be required to provide certain information about yourself as a condition to downloading, installing or using the Software or certain of its features or functionality, and the Software may provide you with opportunities to share information about yourself with others. All information Licensor collects through or in connection with this Software is subject to Licensor’s Legal Notices Terms and Conditions of Use available at http://www.DeftSales.com/terms-of-use. By downloading, installing, using and providing information to or through this Software, you consent to all actions taken by us with respect to your information in compliance with the Legal Notices Terms and Conditions of Use.
6. CONTENT AND SERVICES. The Software may provide you with access to Licensor’s websites and applicable subdomains located at http://www.DeftSales.com (the “Website”) and products and services accessible thereon, and certain features, functionality and content accessible on or through the Software may be hosted on the Website (collectively, “Content and Services”). Your access to and use of such Content and Services are governed by Licensor’s Legal Notices Terms and Conditions of Use located at , which are incorporated herein by this reference. Your access to and use of such Content and Services may require you to acknowledge your acceptance of such Legal Notices Terms and Conditions of Use and/or to register with the Website and your failure to do so may restrict you from accessing or using certain of the Software’s features and functionality. Any violation of such Legal Notices Terms and Conditions of Use will also be deemed a violation of this EULA.
7. UPDATES. Licensor may from time to time in its sole discretion develop and provide Software updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Licensor has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Device settings, when your Device is connected to the internet: (a) the Software may automatically download and install all available Updates; or, (b) you may receive notice of or be prompted to download and install available Updates. When applicable, you shall promptly download and install all Updates and acknowledge and agree that the Software or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Software and be subject to all terms and conditions of this EULA.
8. THIRD PARTY MATERIALS. The Software may display, include or make available third-party content (including data, information, applications and other products services and/or materials) or provide links to third-party websites or services (“Third Party Materials”). You hereby acknowledge and agree that Licensor is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, safety, decency, quality or any other aspect thereof. Licensor does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you and you access and use them at entirely at your own risk and subject to such third parties' terms and conditions. For the avoidance of doubt, Licensor may provide, or third parties may provide, links to other World Wide Web Sites or resources. Because Licensor has no control over such Sites and resources, you acknowledge and agree that Licensor is not responsible for the availability of such external Sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such Sites or resources. You further acknowledge and agree that Licensor shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
9. TERM AND TERMINATION. The term of EULA commences when you download, install, or use the Software (and/or when you acknowledge your acceptance to this EULA) and will continue in effect until terminated by you or Licensor as set forth in this EULA. Licensor may terminate this EULA at any time without notice if it ceases to support the Software, which Licensor may do in its sole discretion. In addition, this EULA will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this EULA. Upon termination of this EULA, all rights granted to you under this EULA will also terminate; and you must cease all use of the Software and delete all copies of the Software from your Device and account or otherwise in your possession. Termination will not limit any of Licensor’s rights or remedies at law or in equity.
10. DISCLAIMER OF WARRANTIES. THE SOFTWARE, CONTENT AND SERVICES ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, CONTENT AND SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE, CONTENT AND SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
11. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SOFTWARE OR THE CONTENT AND SERVICES FOR: PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
12. INDEMNIFICATION. YOU AGREE TO RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS AND ASSIGNS FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, LIABILITIES, DEFICIENCIES, CLAIMS, ACTIONS, JUDGMENTS, SETTLEMENTS, INTEREST, AWARDS, PENALTIES, FINES, COSTS, OR EXPENSES OF WHATEVER KIND, INCLUDING ATTORNEYS' FEES, ARISING FROM OR RELATING TO YOUR USE OR MISUSE OF THE SOFTWARE, CONTENT OR SERVICES, OR YOUR BREACH OF THIS EULA. FURTHERMORE, YOU AGREE THAT LICENSOR ASSUMES NO RESPONSIBILITY FOR THE CONTENT YOU SUBMIT OR MAKE AVAILABLE THROUGH THE SOFTWARE OR SERVICES.
13. INTELLECTUAL PROPERTY; DISCOVERIES.
13.1 Intellectual Property Ownership. You hereby unconditionally and irrevocably assigns to Licensor, its entire right, title and interest in and to 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 including, without limitation, any ideas, concepts, know-how, techniques, processes, reports, or works of authorship owned, developed or created (“Intellectual Property Rights”) that you may now or hereafter have in or relating to the Software (including any rights in derivative works or patent improvements relating to either of them), whether held or acquired by operation of law, contract, assignment or otherwise.
13.2 Licensee Cooperation and Notice of Infringement. Licensee shall:
(a) take all reasonable measures to safeguard the Software (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access;
(b) at Licensor’s expense, take all such steps as Licensor may reasonably require to assist Licensor in maintaining the validity, enforceability and Licensor’s ownership of the DiscoveriesIntellectual Property Rights in the Software;
(c) promptly notify Licensor in writing if you become aware of: (i) any actual or suspected infringement, misappropriation or other violation relating to of Licensor’s Intellectual Property Rights in or relating to the Software, Documentation, Content or Services; or (ii) any claim that the Software, Documentation, Content or Services, including any production, use, marketing, sale or other disposition of thereof Software, in whole or in part, infringes, misappropriates or otherwise violates the Intellectual Property Rights or other rights of any person; and
(d) at Licensor’s sole expense, fully cooperate with and assist Licensor in all reasonable ways in the conduct of any claim by Licensor to prevent or abate any actual or threatened infringement, misappropriation or violation of Licensor’s rights in, and to attempt to resolve any claims relating to, the Software, including having Licensee’s employees testify when requested and making available for discovery or trial relevant records, papers, information, samples, specimens and the like.
13.3 Discoveries. If you, on your own or jointly with others or Licensor may make discoveries, derivative work product, inventions, developments the and/or improvements to the Software, Documentation, Content or Services whether patentable or not, including without limitation, through your feedback, your use of the Software, any feature requests made by you, your development of software and features thereto, object code, source code, know-how, all data (to the extent such data is in connection with services provided by Licensor) and derivatives of any of the foregoing (collectively “Discoveries”), you agree to: (a) promptly and fully disclose in writing to Licensor the existence and nature of all Discoveries; (b) continuously keep current, accurate, and complete records of activities relating to the Discoveries; (c) promptly acknowledge and deliver to Licensor any written instruments, and perform any other reasonable acts necessary in Licensor’s opinion and at Licensor’s expense to effectuate and perfect Licensor’s rights, title and interests, and preserve, file, make, prosecute, register, enforce, maintain and/or defend any intellectual or tangible property rights that might arise in any Discoveries. Licensee shall not use any Discoveries except as expressly allowed for herein, and shall not disclose such Discoveries to others.
13.4 Intellectual Property Ownership. For good and valuable consideration, the receipt and sufficiency of which are hereby agreed, you agree to assign and hereby unconditionally and irrevocably assign to Licensor and its successors and assigns the entire right, title and interest in and to any and all Discoveries and all United States, PCT and foreign patent applications claiming priority thereto; all continuations, continuations-in-parts and divisionals of any of the foregoing; patents issuing on any of the foregoing; and reissues, reexaminations, term extensions and supplementary protection certificates of any of the foregoing, together with all rights and privileges granted and secured thereby, including the full right of priority, the right to claim priority and the right to sue for past, present and/or future infringement and/or misappropriation of any of the foregoing. The parties hereby agree that writings, compilations, lists and other works of authorship fixed in tangible form by you are considered “works made for hire” and Licensor is entitled to the longest duration of copyright protection available for these rights.
14. LAWS AND REGULATIONS
14.1 Trade Compliance.
(a) Licensor hereby advises Licensee that Licensor cannot participate in transactions involving any Sanctioned Country (as hereinafter defined) or with any entity known to be organized in, or owned or controlled by a national of, a Sanctioned Country (a “Restricted Party”). For purposes of the foregoing, a “Sanctioned Country” shall mean and include Cuba, Iran, Sudan, North Korea, or Syria or any other country that may be subject in the future to comprehensive bilateral or multilateral economic sanctions applicable to Licensor, including those imposed by the United Nations, the United States and/or the European Union. If during performance of this EULA, Licensor is required to engage in any act for the direct or indirect benefit of any Sanctioned Country or Restricted Party, such requirement shall constitute grounds for Licensor’s immediate termination of this EULA, and Licensor shall not be in breach or default as a result of such termination.
(b) Licensee shall not, directly or indirectly, sell, provide access to, export, re-export, transfer, divert, loan, lease, consign, transship (including a stop in port), transport, or otherwise dispose of any of Licensor’s Software or Documentation to or via (i) any denied or restricted party, as identified on United States, European Commission/EU member state, or similar lists maintained by other governments with jurisdiction over such transactions; (ii) any Sanctioned Country or Restricted Party; or (iii) any partnership, limited partnership, joint venture, corporation, limited liability company or governmental entity, and any natural person or destination, or for any activity or end-use restricted by applicable laws or regulations (including those applicable to nuclear, missile, chemical, or biological weapons proliferation, military, or money laundering activities) without first obtaining all required Licensor and government authorizations. You agree to release, defend, indemnify and hold Licensor harmless for any and all fines or penalties arising against Licensor from Licensee’s import, export, re-export, transfer, diversion, loan, lease, consignment or other disposition of Licensor Items. If applicable, you agree to complete Licensor’s End-user, End-use, End-destination Declaration (“EUD”) whenever requested by Licensor.
14.2 Government Rights. The Software is “commercial computer software” and “commercial computer software documentation”, respectively, as such terms are used in FAR 12.212. Any use, duplication or disclosure of the Software or the Documentation by or on behalf of the U.S. Government is subject to the restrictions set forth in this EULA.
15. ASSIGNMENT. Licensee will have no right to assign or transfer this EULA or any Software, Documentation, Content or Services granted hereunder, in whole or in part, to any third party without Licensor’s express prior written consent. Any attempt by Licensee to assign or transfer of this EULA without such consent will be null and void. This EULA shall be binding on the parties and their respective permitted successors and assigns and shall insure to the benefit of the parties and their respective permitted successors and assigns.
16. EQUITABLE REMEDIES. Licensee acknowledges and agrees that a breach or threatened breach by Licensee of any of its obligations under this EULA would cause Licensor irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Licensor will be entitled to equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
17. GOVERNING LAW; VENUE; JURY WAIVER; ATTORNEYS’ FEES
17.1 Governing Law and Venue. This EULA shall be governed, construed and interpreted in accordance with the laws of the State of Texas, which shall apply without regard to any choice of laws or conflict of laws provisions which would direct the application of the laws of another jurisdiction. Venue for any litigation filed with respect to this EULA shall be exclusive in the courts, state or federal, sitting in Houston, Harris County, Texas.
17.2 Jury Waiver. TO THE EXTENT ALLOWED BY THE GOVERNING LAW, EACH PARTY HEREBY WAIVES ALL RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY LITIGATION INVOLVING THIS EULA. Nothing herein shall prohibit a party from availing itself of a court of competent jurisdiction for the purpose of injunctive relief.
17.3 Attorneys’ Fees. In the event Licensor institutes suit to enforce any right or obligation against you arising from or incidental to this EULA, Licensor shall be entitled to recover, in addition to any damages or other relief awarded to it, reasonable attorney’s fees, court costs, fees of testifying experts or consultants, and other expenses related thereto.
17.4 IF LICENSEE IS OWNED, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, BY ANY COUNTRY OR SOVEREIGN, OR IS AN AUTHORITY OR AGENCY OF ANY COUNTRY OR SOVEREIGN, THEN LICENSEE HEREBY WAIVES ANY AND ALL RIGHTS AND IMMUNITIES, INCLUDING WITHOUT LIMITATION, ANY IMMUNITIES FROM LAWSUITS, CLAIMS, PREJUDGMENT SEIZURE, ARREST OR ATTACHMENT IT MAY HAVE UNDER THE FOREIGN SOVEREIGN IMMUNITIES ACT OF 1976 (28 USC SECTION 1602, ET SEQ.), AS AMENDED, OR ANY SIMILAR TYPE OF STATUTE, LAW, RULE OR REGULATION OF ANY COUNTRY OR SOVEREIGN.
18. SEVERABILITY. If any provision of this EULA is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this EULA will continue in full force and effect.
19. ENTIRE AGREEMENT. This EULA embodies the entire agreement between you and Licensor with respect to the Software and supersedes and replaces all other agreements existing between Licensor and Licensee with respect to transactions the foregoing. If there is a conflict between this Agreement and any other agreement mentioned in the foregoing, the more restrictive on you shall control. Neither of the Parties shall be bound by any conditions, definitions, warranties, understandings, or representations with respect to the subject matter of this EULA other than as expressly provided herein. The Article and Section headings contained in this EULA are for reference purposes only and shall not affect in any way the meaning or interpretation of this EULA.
20. WAIVER OF TERMS. No waiver by a party of any of the terms, provisions, or conditions hereof shall be effective unless said waiver shall be in a writing signed by an authorized officer of the party against whom the waiver is sought to be enforced. The failure of either party to enforce any term, provision or condition of this EULA shall in no manner affect the right to enforce the same at a later time, and the waiver by either party of any breach of any term, provision or condition in this EULA shall not be construed to be a waiver by such party of any subsequent or succeeding breach of such term, provision or condition or a waiver by such party of any breach of any other term, provision or condition.
21. DEVELOPER NAME AND ADDRESS.
Deft Sales, LLC
3539 Yupon St.
Houston, Texas 77005