END USER LICENSE AGREEMENT for pspstorelink.com

IMPORTANT-READ CAREFULLY: This End-User License Agreement ("EULA") is a legal agreement between each user of this software ("you") (who must be a Franchisee of PET SUPPLIES "PLUS"/U.S.A., INC., an assignee of that Franchisee that has been approved by PET SUPPLIES "PLUS"/U.S.A., INC., or an employee of such Franchisee or approved assignee;) and PET SUPPLIES "PLUS"/U.S.A., INC. ("PSP", we", "us" or "our") for the PSP software that accompanies this EULA, which includes computer software and may include associated media, printed materials, "online" or electronic documentation, and Internet-based services ("Software"). An amendment or addendum to this EULA may accompany the software at any time. YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE. IF YOU DO NOT AGREE, DO NOT INSTALL, COPY, OR USE THE SOFTWARE
1. License Grant. Subject to the terms and conditions of this Agreement, PSP grants you a non-exclusive, revocable, limited license, to (a) download and install the most current generally available version of the Software (including all updates thereto), and (b) use the Software you download and install solely in connection with the operation of your Pet Supplies "Plus" store.
2. Reservation of Rights and Ownership. PSP reserves all rights not expressly granted to you in this EULA. The Software is protected by copyright and other intellectual property laws and treaties. PSP owns the title, copyright, and other intellectual property rights in the Software. This Software is licensed, not sold.
License Conditions
1. You may not rent, sell, lease, sublicense, distribute, assign, copy, or in any way transfer the Software or use the Software for the benefit of any third party through outsourcing or time-sharing arrangement or through the operation of any hosting or service bureau. You may not install the Software on any computer not owned by a Franchisee of PSP, or by an assignee of that Franchisee that has been approved by PSP. You may not modify, reverse-engineer, decompile, disassemble, or otherwise discover the Software, or attempt to do so for any reason. Further, you may not access, create or modify the source code of the Software in any way. You do not have the right to and may not create derivative works of the Software. All modifications or enhancements to the Software remain the sole property of PSP. You understand that PSP, in its sole discretion, may modify or discontinue or suspend your right to use the Software at any time, and we may at any time suspend or terminate any license hereunder and disable the Software or any of its component features.
2. We reserve the right to add additional features or functions to the existing Software. We may require the updating of the Software on your computer when we release a new version of the Software, or when we make new features available. This update may occur automatically or through other means and may occur all at once or over multiple sessions. You understand that we may require your review and acceptance of our then-current EULA before you will be permitted a limited license for any subsequent versions of the Software.
Ownership. You acknowledge and agree that the Software is licensed, not sold to you by PSP. You acknowledge that the Software, including all code, content, protocols, software, and documentation provided to you by PSP in conjunction with the Software are PSP's property; or the property of PSP's licensors, and are protected by U.S. and international copyright, trademarks, patents and other proprietary rights and laws relating to Intellectual Property Rights. "Intellectual Property Rights" means, collectively, rights under patent, trademark, copyright and trade secret laws, and any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide, including, without limitation, moral or similar rights. You may not delete, alter, or remove any copyright, trademark, or other proprietary rights notices we have placed on the Software. All rights not expressly granted hereunder are expressly reserved to PSP.
Content and Infringement.
1. You understand that all content, including, without limitation all data, links, graphic or video messages and all information, text, software, music, sound, graphics or other materials ("Content") made available or accessible through the Software, whether publicly available or privately transmitted, is the sole responsibility of the entity from whom it originated. You agree to accept all risks associated with the use of any Content, including any reliance on the accuracy or completeness of such Content. Under no circumstances will PSP be liable in any way for any Content, including, but not limited to, any errors or omissions in any such Content, or for loss or damage of any kind incurred as a result of the transmission or posting of such Content by means of the Software.
2. The Software is exposed to various security issues, and should be regarded as unsecure. By accepting this Agreement, you acknowledge and accept that the Software, and any information you download by means of the Software, may be exposed to unauthorized access, interception, corruption, damage or misuse, and should be regarded as insecure. You accept all responsibility for such security risks and any damage resulting therefrom.
3. All Content made available or accessed through the Software is the property of the applicable Content owner and may be protected by applicable laws including, without limitation, those relating to Intellectual Property Rights. This Agreement gives you no rights to such Content.
4. PSP respects, and expects its users to respect, the rights of copyright holders. When put on notice, PSP will act appropriately to remove Content under our control that infringes the copyright rights of others. PSP reserves the right to disable access to the Software by anyone who uses them to repeatedly infringe the Intellectual Property Rights of others. If you believe that our services contain elements that infringe the copyright rights of any individual or entity, please follow our Notice and Procedure for Making Claims of Copyright Infringement contained in Section 13 below.
Software Transfer
1. You may move the Software to a different Computer subject to the restrictions set forth in Section 2.1 of this EULA. After the transfer, you must completely remove the Software from the former Computer.
2. The initial user of the Software may not transfer or assign this EULA or the Software to another end user without the prior written approval of PSP. Any such approved transfer must include all of the Software (including all component parts, the media and printed materials, any upgrades and this EULA. Prior to any approved transfer, the end user receiving the Software must agree to accept all of the terms of the then current EULA.
Your Obligations
1. You represent and warrant that you are either the owner or an authorized user of the computer where the Software is installed, and that the computer is owned by a Franchisee of PSP, or by an assignee of that Franchisee that has been approved by PSP.
2. You acknowledge that PSP is the sole owner of the Software.
3. You also acknowledge that all information or content you received while using the Software, in its entirety, constitutes trade secrets of PSP which is revealed to you in confidence. You hereby agree that you will not disclose any of the material, information or content you receive while using this Software, to any person or entity other than those employees of your Pet Supplies "Plus" store who require such information or content for the operation of your Pet Supplies "Plus" store. The violation of this Section 6.3 will constitute a violation of Section 11.1 of the Franchise Agreement between PSP and the Franchisee (and/or an authorized assignee of such Franchisee that has been approved by PSP) that is a permitted user of the Software.
Access and Interference; Passwords
1. You agree that you will not use any robot, spider, other automatic or manual device or process to interfere or attempt to interfere with the proper working of any of the Software or its content, except to remove our Software from a computer of which you are an owner or authorized user. You may not violate or attempt to violate the security of our services. We reserve the right to investigate occurrences which may involve such violations, and may involve, and cooperate with, law enforcement authorities in prosecuting users who have participated in such violations. You agree that it is your responsibility to install anti-virus software and related protections against viruses, Trojan horses, worms, time bombs, cancelbots or other techniques that may have the effect of damaging, destroying, disrupting or otherwise impairing a computer's functionality or operation.
2. In order to access the Software or certain services which may, from time to time, be offered by PSP, you may be required to accept additional terms and conditions and/or establish an account including a unique identification code or name (an "ID") and password (a "Password"). The Franchisee of your Pet Supplies "Plus" store is the sole and exclusive owner of any Password and ID combinations issued or chosen by each authorized employee of your Pet Supplies "Plus" store. Maintaining the confidentiality and security of all Password(s) and ID(s) for your Pet Supplies "Plus" store is the responsibility of the Franchisee of your Pet Supplies "Plus" store. The Franchisee of your Pet Supplies "Plus" store is fully responsible for the use and protection of each Password and ID issued to or chosen by each authorized employee of your store, and if any such employee should leave your employ the Password(s) and ID(s) of such employee must be deleted immediately after such termination of employment. The Franchisee of your Pet Supplies "Plus" store must notify us immediately and confirm in writing any unauthorized use of accounts or any breach of security, including without limitation any loss, theft or unauthorized use of your Password(s), and/or ID(s) or any related account. If we have reasonable grounds to suspect that the security of the Password and/or ID of any authorized user of the software has been compromised, we have the right to suspend or terminate your account, refuse any and all current or future use of the services, and pursue any appropriate legal remedies. We shall not be responsible for any losses incurred in connection with any misuse of any Password or ID.
Link and Search Results. The Software may provide, or third parties may provide, search results or other links to other World Wide Web sites or resources. Because we have no control over such sites and resources, you acknowledge and agree that we are not responsible for the availability of such external sites or resources, and do not endorse and are not responsible or liable for any Content, advertising, products, resources, or other materials on or available from such sites or resources. You further acknowledge and agree that we 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.
DISCLAIMER OF WARRANTY
1. YOUR ACCESS AND USE OF THE SOFTWARE AND SERVICES AND ANY CONTENT AVAILABLE THROUGH OUR SOFTWARE, SERVICES OR ON OUR WEBSITES AT YOUR SOLE RISK.
2. WE PROVIDE THE SOFTWARE AND THE CONTENT ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, SYSTEM INTEGRATION OR NON-INFRINGEMENT.
3. WE MAKE NO REPRESENTATIONS OR WARRANTIES CONCERNING THE SERVICES PROVIDED BY THIRD PARTIES ACCESSIBLE ON OR THROUGH OUR SOFTWARE OR OUR SERVICES. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE IS DONE AT YOUR SOLE RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
4. NEITHER WE NOR OUR DIRECTORS, OFFICERS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, CONTRACTORS, THIRD PARTY VENDORS, FACILITIES, INFORMATION PROVIDERS, LICENSORS, NOR ANY EXCHANGES, CLEARING ORGANIZATIONS OR OTHER SUPPLIERS PROVIDING DATA, INFORMATION, OR SERVICES (EACH A "PROVIDER") MAKE ANY REPRESENTATION OR WARRANTY: (A) AS TO THE TIMELINESS, SEQUENCE, ACCURACY, COMPLETENESS, RELIABILITY OR CONTENT OF THE SOFTWARE, OR ANY INFORMATION, SERVICE OR TRANSACTION PROVIDED THEREBY; (B) THAT THE SOFTWARE WILL BE AVAILABLE OR WILL OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER; (C) THAT ERRORS OR DEFECTS RELATED TO THE SOFTWARE OR THE SERVICES WILL BE CORRECTED, OR (D) THAT WE WILL RECOGNIZE ANY OCCURRENCE OF IDENTITY THEFT. WE ALSO DO NOT WARRANT THAT THE SOFTWARE OR ANY SERVICES OR THE INFORMATION AVAILABLE THROUGH ANY SERVICES, IS APPROPRIATE, ACCURATE OR AVAILABLE FOR USE IN ANY PARTICULAR JURISDICTION.
5. PSP MAKES NO GUARANTEES AS TO THE SITES AND INFORMATION LOCATED WORLDWIDE THROUGHOUT THE INTERNET WHICH YOU MAY ACCESS AS A RESULT OF THE USE OF THE SOFTWARE, INCLUDING AS TO: (A) THE ACCURACY, CURRENCY, CONTENT, OR QUALITY OF ANY SUCH SITES AND INFORMATION, OR (B) WHETHER ANY SEARCH USING THE SOFTWARE MAY LOCATE UNINTENDED AND OBJECTIONABLE CONTENT.
6. PLEASE NOTE THAT NO ADVICE OR INFORMATION, OBTAINED BY YOU FROM PSP PERSONNEL OR THROUGH THE SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THESE TERMS OF SERVICE.
7. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
LIMITATION OF LIABILITY
1. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT IN NO EVENT WILL PSP OR ITS AFFILIATES, OR ITS EMPLOYEES, DISTRIBUTORS, SUPPLIERS, MERCHANT PARTNERS, DIRECTORS OR AGENTS (EACH A "PROTECTED PARTY", COLLECTIVELY "PROTECTED PARTIES") BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY, GOODWILL, OR OTHER INTANGIBLE LOSSES (EVEN IF ANY PROTECTED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) OR OTHER RELIEF ARISING OUT OF, OR RELATED TO, THIS AGREEMENT OR TO: (A) YOUR USE OR THE INABILITY TO USE THE SOFTWARE; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, SERVICES OR SOFTWARE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SOFTWARE; (C) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SOFTWARE; OR (E) ANY OTHER MATTER RELATING TO THE SOFTWARE. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THIS SITE.)
2. SOLELY TO THE EXTENT THAT THE FOREGOING LIMITATION OF LIABILITY IS, FOR ANY REASON, HELD TO BE INAPPLICABLE OR UNENFORCEABLE IN WHOLE OR IN PART, THEN THE PROTECTED PARTIES' AGGREGATE LIABILITY, FOR ANY REASON AND FOR ANY CAUSE OF ACTION AND ANY THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THE SOFTWARE, THE SERVICES OR THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF DAMAGES ACTUALLY INCURRED BY YOU OR U.S. ONE HUNDRED ($100.00) DOLLARS.
3. THE PROTECTED PARTIES ASSUME NO LIABILITY HEREUNDER FOR, AND SHALL HAVE NO OBLIGATION TO DEFEND YOU OR TO PAY COSTS, DAMAGES OR ATTORNEYS' FEES FOR, ANY CLAIM BASED UPON: (A) ANY METHOD OR PROCESS IN WHICH THE SOFTWARE MAY BE USED BY YOU; (B) ANY RESULTS OF USING THE SOFTWARE; (C) ANY USE OF OTHER THAN A CURRENT UNALTERED RELEASE OF THE SOFTWARE; OR (D) THE COMBINATION, OPERATION OR USE OF THE SOFTWARE WITH THIRD PARTY PROGRAMS OR DATA.
4. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR DAMAGES, IN SUCH STATE OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
INDEMNIFICATION THE INDIVIDUALLY NAMED FRANCHISEE(S) IN THE FRANCHISE AGREEMENT WITH PSP FOR YOUR STORE AGREE(S) TO INDEMNIFY, DEFEND AND HOLD HARMLESS PSP, ITS AFFILIATED AND SUBSIDIARY COMPANIES, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS AND AGENTS FROM ANY AND ALL THIRD PARTY CLAIMS, LIABILITY, DAMAGES AND/OR COSTS (INCLUDING, BUT NOT LIMITED TO, ATTORNEYS' FEES) ARISING FROM YOUR USE OF THE SOFTWARE, THE BREACH OR VIOLATION OF THIS EULA BY ANY AUTHORIZED OR UNAUTHORIZED USER OF THE SOFTWARE EMPLOYED BY THAT FRANCHISEE OR BY AN ASSIGNEE OF THAT FRANCHISEE THAT HAS BEEN APPROVED BY PSP. YOU AGREE TO IMMEDIATELY NOTIFY PSP OF ANY UNAUTHORIZED USE OF YOUR ACCOUNT OR ANY OTHER BREACH OF SECURITY KNOWN TO YOU.
Termination
1. You may terminate this Agreement at any time by uninstalling and destroying all copies of the Software in your possession or control.
2. We may terminate this Agreement or your account (or any part thereof), disable the Software or cease providing any service at any time in our sole discretion. You agree that we shall not be liable to you or any third-party for any termination or disabling of the Software.
Notice and Procedure for Making Claims of Copyright Infringement. PSP respects the intellectual property of others, and we ask the users of the Software to do the same. If you believe that any Content received by you through the Software has been copied in a way that constitutes copyright infringement, please provide us with the following information:
- A description of the copyrighted work that you claim has been infringed;
- A description of where the material that you claim is infringing is located on the site;
- Your address, telephone number and e-mail address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
Please contact PSP with any notice of claims of copyright infringement as follows:
Harvey L. Solway, President Pet Supplies "Plus"/U.S.A., Inc. 22670 Haggerty Road, Suite 200 Farmington Hills, Michigan 48335 248-374-1900 hsolway@petsuppliesplus.com
Applicable Law
1. The substantive laws of the State of Michigan in the United States of America, without regard to conflict of laws principles, shall govern all matters relating to or arising from this Agreement, and the use (or inability to use) any or all of the Software.
2. Subject to the dispute resolution procedures set forth below, you hereby subject to the exclusive jurisdiction and venue of the appropriate State court located in Oakland County, Michigan, or to the Federal Courts for the Eastern District of Michigan, with respect to all matters arising out of or relating to this Agreement.
3. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use the Software, or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Arbitration
1. Any claim or controversy arising out of or related to this Agreement, or the Software shall be settled by binding arbitration in accordance with the rules of the American Arbitration Association then effective.
2. Any such claim or controversy shall be arbitrated on an individual basis and shall not be consolidated with a claim of any other party.
3. In any such dispute, under no circumstances will you be permitted to obtain awards for, and you hereby waive all rights to claim punitive, incidental or consequential damages, and you further waive all rights to have damages multiplied or increased. This shall not preclude PSP from seeking any injunctive relief for protection of our Intellectual Property Rights.
4. The arbitration shall take place in Southfield, Michigan, or at such other location as the parties may mutually agree.
5. The arbitrator(s) shall issue a reasoned award, and any judgment on the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction. The arbitrator(s) will each be a natural person who has never been employed (either as an employee or as an independent consultant) by either of the parties, or any parent, subsidiary or affiliate thereof, has not been a Franchisee of PSP, and will be generally familiar with the business of the parties.
6. The arbitrator(s) may, upon request of either party, exclude from use in the arbitration proceeding any evidence not made available to the other party pursuant to a property discovery request.
7. The cost of the arbitrator(s) and the administration of the arbitration will be borne equally by the parties to the arbitration.
8. Each party agrees to hold in confidence the existence, content and outcome of the arbitration.
9. The parties understand that: (a) arbitration is final and binding on the parties; (b) the parties are waiving their right to seek remedies in court, including the right to a jury trial; (c) pre-arbitration discovery is generally more limited than and different from court procedures; and (d) any party's right to appear or to seek modification of ruling by the arbitrators is strictly limited.
Successor Agreements. The terms of this Agreement may change from time to time. You should check this Software each time you use it to determine if any material changes have been made. You agree that your continued use of the Software or our services after the effective date of any change will constitute your affirmative consent to this revised Agreement. If you do not accept such revisions, you must remove the Software from your computer and cease all access to and use of the Software.
Entire Agreement: Severability
1. This EULA (including any addendum or amendment to this EULA which is included with the Software) is the entire agreement between you and PSP relating to the Software, and it supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this EULA.
2. To the extent the terms of any PSP policies or programs conflict with the terms of this EULA, the terms of this EULA shall control.
3. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the remaining provisions of this EULA shall continue in full force and effect.