M-Connect License Agreement
1. Scope of the License
- Malibu Commerce Inc. hereby grants you a limited, non-assignable, non-transferable, and non-
exclusive right to access and to use the Materials for internal purposes and as defined on the
website and in accordance with the pricing set forth in the agreement.
1.1.2 To the extent that the licensee permits users to access and use the Program it shall be the sole responsibility of the licensee to ensure that the stated users do not violate the terms and conditions of this License Agreement. Where the licensee fails to fulfil this obligation, it shall be deemed breach of this License Agreement, and such breach shall entitle Malibu Commerce Inc. to terminate this License Agreement for cause and pursue all remedies available to it.
1.2.1 The Program is a standard product, and it shall be the responsibility of the licensee alone to ensure that the functions in the Program fulfil the licensee’s requirements. The functions of the Program are defined in the M-Connect documentation which is an integral part of this contract. The Program requires web services from to be accessible outside the firewall.
1.2.2 The Licensee shall have the right to adjust or otherwise modify the Application Code of the Program to the extent that such adjustment or modification is required for the use of the Program stipulated in this license Agreement, and to the extent that the Licensee has acquired the tools to perform such adjustment or modification where this is required by Malibu Commerce Inc.
1.2.3 M-Connect supports synchronizing one Business Central instance to a single supported E-Commerce platform.
2. Intellectual Property Rights /Copyrights
2.1 Malibu Commerce Inc. or its licensors hold full copyright, title and all and any other rights to the Program. The Program is protected by copyright laws and international treaty provisions. Any disregard of Malibu Commerce Inc. ‘ or its licensor’s rights, including inappropriate access to the Program which might render copying of license Files/Codes to the Program possible for third parties, shall be deemed to be a material breach of this license Agreement and shall entitle Malibu Commerce Inc. to terminate this license Agreement for cause and pursue all remedies available to it.
2.2 The licensee shall not reverse engineer, disassemble or decompile the Program, except where and only to the extent that such operations are permitted according to mandatory, statutory legislation and the licensee shall comply with that legislation in all respects.
3. Limited Warranty
3.1 Where the licensee, within a period of six (6) months following the licensee’s signature of this license Agreement, provides written documentation demonstrating that the Program does not perform substantially in accordance with its electronic user documentation, and that there is a significant error in the Program, (i.e. an error characterized by the fact that one or more of the licensee’s vital business functions cannot be carried into effect owing to the fact that the error renders the Program inoperable), Malibu Commerce Inc. shall either 1) deliver, free of charge, a new version of the Program without the error, or 2) correct the error free of charge. The performance of Malibu Commerce Inc.’s obligations under this Clause 3.1 shall be Malibu Commerce Inc. total maximum liability and Malibu Commerce Inc.’s entire obligation to the licensee as a consequence of all and any errors in the Program, and the licensee shall have no other claims against Malibu Commerce Inc. as a result of such errors. Error correction may also take the form of a statement of procedures or manners of application (“work arounds”) whereby the error will have no significant effect on the licensee’s use of the Program. This limited warranty is void if failure of the Program has resulted from accident, abuse or misapplication. Any modification of the Program by anyone other than Malibu Commerce Inc. voids the foregoing warranty on any portion of the Program modified or affected by such modification.
3.2 Other than as provided in Clause 3.1, license is granted to the Program “AS-IS” with no other warranties, representations, obligations of remedy or rights other than those described above, Accordingly, the licensee shall have no right to raise claims against Malibu Commerce Inc. if the Program contains errors and inconveniences not covered by Clause 3.1.
4. LIMITATION OF LIABILITY
4.1 IN NO EVENT AND NO MATTER THE CIRCUMSTANCES SHALL MALIBU COMMERCE INC. BE LIABLE FOR ANY LOSS OF ANTICIPATED PROFIT, LOSS OF DATA, DAMAGE TO RECORDS OR DATA OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSS (COLLECTIVELY “LOSSES”) (WHICH FOR PURPOSES OF THIS LICENSE AGREEMENT SHALL BE DEEMED TO INCLUDE, BUT NOT BE LIMITED TO THE LOSS OF GOODWILL, OR LOSS AS A CONSEQUENCE OF ANY KIND OF BUSINESS INTERRUPTION) ARISING OUT OF OR IN CONNECTION WITH THIS LICENSE AGREEMENT OR THE USE OR PERFORMANCE OF THE PROGRAM OR SERVICES CONNECTED THERETO EVEN IF MALIBU COMMERCE INC. WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES AND REGARDLESS OF WHETHER THE CAUSE OF ACTION IS IN CONTRACT OR TORT. ACCORDINGLY, THE LICENSEE CANNOT CLAIM, DEMAND OR SEEK RECOVERY FROM MALIBU COMMERCE INC. FOR ANY OF THE FOREGOING LOSSES, AND MALIBU COMMERCE INC. WILL NOT INDEMNIFY THE LICENSEE FOR SUCH CLAIMS.
4.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MALIBU COMMERCE INC. DISCLAIMS ANY PRODUCT LIABILITY AS A CONSEQUENCE OF LOSS OR DAMAGE TO PROPERTY WHICH, IN VIEW OF ITS NATURE, IS NORMALLY INTENDED FOR COMMERCIAL USE.
4.3 IN ALL AND ANY EVENT, NO MATTER THE CIRCUMSTANCES, MALIBU COMMERCE INC.’s TOTAL AGGREGATE LIABILITY FOR LOSS OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH THIS LICENSE AGREEMENT OR THE USE OR PERFORMANCE OF THE PROGRAM OR SERVICES CONNECTED THERETO SHALL NOT EXCEED THE AMOUNT OF THE LICENSE FEE ACTUALLY PAID BY THE LICENSEE FOR THE LICENSE TO THE PROGRAM.
4.4 MALIBU COMMERCE INC. SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY ADJUSTMENTS OR OTHER MODIFICATIONS IN THE PROGRAM OR ANY SERVICE AND SUPPORT OF THE PROGRAM PERFORMED BY THE LICENSEE ITSELF OR PROVIDED BY THIRD PARTIES OR PARTNERS OF MALIBU COMMERCE INC. FURTHER, MALIBU COMMERCE INC. SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY DEFECTS WHICH ARE A CONSEQUENCE OF EXTERNAL FACTORS, INCLUDING OTHER PROGRAMS. OR A CONSEQUENCE OF THE INTEGRATION OF OR INTERACTION BETWEEN THE PROGRAM AND THE LICENSEE’S OWN HARDWARE AND SOFTWARE ENVIRONMENTS.
5. EXCLUSION OF LIABILITY
5.1 Except as provided in Clause 4, Malibu Commerce Inc. makes no warranties with respect to the Program, any components thereof, or other goods or services provided by Malibu Commerce Inc., express, implied or statutory, oral or written, including but not limited to, the implied warranties of merchantability, against infringement, quiet enjoyment, accuracy of data, system integration, or fitness for a particular purpose.
6. Force Majeure
6.1 Neither party shall be held liable for any damage sustained by the other party as a direct or indirect consequence of the non-performing party being delayed, prevented or hindered in the performance of its obligations under this License Agreement as a result of a force majeure situation. Force majeure situations include war and mobilization, catastrophes of nature, strikes, lock-out, fire, damage to production plant, import and export regulations and other unforeseeable circumstances beyond the control of the party concerned.
7.1 By the Licensee
7.1.1 The Licensee shall have no right to sell/rent out/lend or in any other way transfer or assign the right to use the Program or any right or obligation under this License Agreement to any third party.
7.2 By Malibu Commerce Inc.
7.2.1 Malibu Commerce Inc. reserves the right to transfer its rights and obligations under this License Agreement in whole or in part to another company within the Malibu Commerce Inc. Group or a third party.
8.1 By the Licensee
8.1.1 The Licensee shall have the right to terminate this License Agreement with prior written notice of one (1) month to Malibu Commerce Inc. The Licensee shall not be entitled to a refund of the paid license fee upon such termination. Upon such termination, the Licensee shall promptly cease using the Program and promptly delete and erase and destroy the Program, including all and any copies thereof, unless otherwise stipulated by mandatory, statutory legislation, and the Licensee shall comply with such legislation in all respects.
8.2 By Malibu Commerce Inc.
8.2.1 In the event of the Licensee’s material breach of this License Agreement, Malibu Commerce Inc. shall have the right to terminate this License Agreement immediately with written notice and shall have all remedies available at law or in equity available to it. In such case, the Licensee shall immediately cease using the Program and promptly delete, erase, and destroy the Program, including all and any copies hereof as stated in Clause 9.1.1. In the event of termination under this Clause, Malibu Commerce Inc. shall have no obligation to refund any paid license fees whatsoever.
9. Validity and Severability
9.1 If any provision of this License Agreement is held to be illegal, invalid, or unenforceable, such provision shall nonetheless be enforced fully permitted by applicable law, to reflect the original intent of the parties, and such provision shall not affect the legality and validity of the other provisions.
10. Survival Clause
10.1 Any terms of this License Agreement which, by their nature, extend beyond the day this License Agreement comes to an end shall remain in effect and thus bind the parties.
11.1 If either party does not exercise, or delays exercising, a right or remedy provided by this License Agreement or by law, that failure or delay will not amount to a waiver of that right or remedy by that party. The fact that a party does exercise a right or remedy provided by this License Agreement or by law does not prevent that party from exercising that right or remedy again or exercising another right or remedy.
12. Arbitration and legal
12.1 Any Claim arising out of or relating to this agreement, or its breach shall be submitted to the Los
Angeles Superior Court if the disputed amount is under $25,000. Any claim over $25,001 shall be
submitted to arbitration in Los Angeles County pursuant to California law. The arbitration shall be
conducted in a procedurally fair manner by a mutually agreed upon arbitrator selected in accordance with the applicable rules of the Judicial Arbitration and Mediation Services (“JAMS”) or if none can be mutually agreed upon, then one arbitrator will be appointed pursuant to the JAMS rules. The arbitrator shall have the authority to award any damages authorized by law for the claims presented and shall have the authority to award reasonable attorney fees to the prevailing party. The decision of the arbitrator shall be final and binding on all parties and shall be the exclusive remedy of the parties.
13.1 Through Acceptance, the Licensee hereby expressly accepts the terms and conditions of this agreement and that any customer-specific information received by Malibu Commerce Inc. on the basis of the contractual relationship regulated by this License Agreement, i.e., conceding the Program, including Serial No., Source Code, Name of Licensee, Address, Tel. No., Fax No., E-mail Address, URL, Contact Name and the name of the Licensee’s supplier, may be used internally within Malibu Commerce Inc.
14. Other General Terms
14.1 Priority This License Agreement in connection with the Licensee’s purchase of the Program, shall be the legally binding version. In the event of any conflict between the contents of this License Agreement and the contents of the said License Agreement implemented electronically in the Program, the License Agreement signed in hardcopy shall prevail.
14.2 Entire Agreement This License Agreement (together with all Exhibits) set forth the entire understanding between the parties and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter of this License Agreement.
14.3 Amendments This License Agreement may not be amended, modified or superseded, unless expressly agreed to in writing by both parties.
14.4 Independent Contractors The parties are independent contractors, and this License Agreement shall not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties. No party has the power to bind the other or incur obligations on the other’s behalf.
14.5 Execution in Counterparts This License Agreement may be executed in counterparts, each of which will be deemed an original, but all of which taken together will constitute but one and the same instrument.
14.6 Notices All notices, requests or other communications required or permitted to be given hereunder shall be sent by registered mail, postage prepaid, facsimile, or electronic mail to the other party at its address set forth below or to such other address as may tromp time to time be notified by either party to the other. Notices shall be deemed received upon actual receipt.
15.1 Application Code Shall mean the code to the application, i.e., the specific functions, forms, tables and reports which form a part of the Program.
15.2 Database Shall mean an electronic entity upon which the data of the Program are stored.
15.3 Documentation Shall mean all and any electronic and written aids and specifications developed by Malibu Commerce Inc. in relation to the Program, for which the Licensee has acquired the right of use from time to time, and any descriptions developed by Malibu Commerce Inc. in relation to the Program.
15.4 Licensee or the Subsidiary, and for which the Licensee has acquired and paid for the right of use to the Program.
15.6 License Agreement Shall mean this License Agreement issued by Malibu Commerce Inc.
15.7 License Files/Codes Shall mean the Files/codes which, like a key, open the Program giving the Licensee access to use the Program.
15.8 Malibu Commerce Inc. Group Shall mean the entity of the Malibu Commerce Inc. companies consisting of Malibu Commerce Inc. and said company’s parent company, subsidiaries or associated companies, including any subsidiaries hereof.
15.9 Program Shall mean those parts of the latest electronic unmodified standard version of Malibu Commerce Inc. computer software program, including upgrades and external components and certified Solutions which have been integrated and delivered by Malibu Commerce Inc. as a part of Malibu Commerce Inc. computer software program, for which the Licensee has acquired and actually paid for the right of use and any related Documentation.
15.10 Subsidiaries Shall mean the companies controlled by the Licensee by ownership of more than 50% of the shares or the voting rights in such companies for which the Licensee has acquired and paid for the right of use to the Program, and which have been listed in Appendix A to this License Agreement.
15.11 Upgrades Shall mean new versions of the Program which Malibu Commerce Inc. may release.
15.12 Applicability of Defined Terms
15.12.1 Where the context so admits, any reference to the singular includes the plural, any reference to the plural includes the singular, and any reference to one gender includes all genders.
15.12.2 In this License Agreement, a reference to a Clause is a reference to a Clause in this License Agreement.
15.12.3 The Headings of this License Agreement are for convenience only and shall not constrain or affect its construction or interpretation in any way whatsoever.