LICENSE AGREEMENT OF GETTABITE LLC
BY CLICKING “I AGREE,” ACCESSING, DOWNLOADING, INSTALLING, UPLOADING, COPYING OR USING THE GETTABITE SOFTWARE, YOU CONCLUDE AND AGREE TO THIS LICENSE AGREEMENT (“AGREEMENT”) AND ARE LEGALLY BOUND WITH GETTABITE LLC, HAVING A PLACE OF BUSINESS AT 200 Mimosa Drive, Decatur, GA 30030 (“GettaBite”). IF YOU ARE ACTING ON BEHALF OF A COMPANY OR OTHER ORGANIZATION, YOU REPRESENT THAT YOU ARE AUTHORIZED TO LEGALLY BIND SUCH ORGANIZATION AND THAT YOU CONCLUDE THE AGREEMENT ON BEHALF OF SUCH ORGANIZATION. IN THE FOLLOWING, THE TERMS “YOU” AND “LICENSEE” SHALL REFER, JOINTLY AND SEVERALLY, TO YOU INDIVIDUALLY AND ANY ORGANIZATION ON WHOSE BEHALF YOU ACT.
If you do not agree to the terms of this License Agreement, then do *not* click “I AGREE,” access, download, install, upload, copy or use the Software.
(a) “Software” shall mean the current of version of GettaBite’s software installed by you and the media and Documentation provided by GettaBite to Licensee and for which Licensee is granted a use license pursuant to this Agreement. The Software will be provided in object form only.
(b) “Documentation” shall mean electronic (including online at the website GettaBite.com) or hard copy written reference material made available to Licensee in conjunction with the Software, including, without limitation, instructions, guidelines, service features materials and end user guides.
(c) “Intellectual Property Rights” shall mean all intellectual property rights, including, without limitation, patent, copyright, trademark, and trade secret, recognized in any jurisdiction worldwide, whether perfected or not, and any similar and other proprietary rights.
(d) “Updates” shall mean a modification, error correction, bug fix, new release, or other update to or for the Software.
2. LICENSE GRANT, USE AND OWNERSHIP
(a) Limited License. Subject to the terms and conditions of this Agreement, GettaBite grants to Licensee a non-exclusive, revocable (at any time and for any reason, at GettaBite’s sole discretion), royalty-free, non-transferable, non-assignable license (without the right to sublicense):
(i) to use the Software for purposes of providing and/or receiving product and service promotions, including restaurant deals, in accordance with the Documentation; and
(ii) to use the Documentation provided in connection with the Software in support of Licensee’s authorized use of the Software.
(b) Feedback. Licensee may provide feedback to GettaBite concerning the functionality and performance of the Software from time to time, including, without limitation, identifying potential errors and improvements (collectively the “Feedback”). GettaBite may use Feedback, without restriction in any manner now known or in the future conceived, to improve or enhance its products and, accordingly, and you hereby grant to GettaBite a non-exclusive, perpetual, irrevocable, royalty-free, transferable, worldwide right and license, with the right to sublicense (i) to use, reproduce, disclose, distribute, modify, prepare derivative works of and otherwise exploit the Feedback and other information you provide to GettaBite under this Agreement, and (ii) to make, use, sell, offer to sell, import and export any product or service that incorporates the Feedback and other information you provide to GettaBite under this Agreement.
(c) Restrictions. Licensee shall not disclose, provide, or disseminate in any manner the Software (including the Documentation) or Confidential Information to any third party, including but not limited to its partners, affiliates or subsidiaries. Except to the extent contrary to any applicable laws, Licensee will not, and will not permit any third party to, sublicense, rent, copy, modify, create derivative works of, translate, reverse engineer, decompile, disassemble, or otherwise reduce to human perceivable form any portion of the Software or accompanying Documentation. Without limiting the generality of the foregoing, Licensee shall not use the Software for Licensee’s product development or any other commercial purpose, including, but not limited to sales or marketing activities, except as expressly permitted in this Agreement. The Software and all performance data and test results, including without limitation, benchmark test results (collectively “Performance Data”), relating to the Software are the Confidential Information of GettaBite, and will be treated in accordance with the terms of Section 4 of this Agreement. Accordingly, Licensee shall not publish or disclose to any third party any Performance Data relating to the Software.
(d) Ownership. GettaBite shall own and retain all right, title and interest in and to the Intellectual Property Rights in the Software and any derivative works thereof, subject only to the limited license expressly set forth in Section 2(a) hereof. Licensee does not acquire any other rights, express or implied, in the Software. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO GETTABITE.
(e) No Support Services. GettaBite is under no obligation to support the Software in any manner or to provide any Updates to Licensee. In the event GettaBite, in its sole discretion, supplies any Update to Licensee, the Update shall be deemed Software under this Agreement and shall be subject to the terms and conditions of this Agreement.
(f) Third-Party Software. The Software may enable a computer to run multiple instances of third-party guest operating systems and application programs. Licensee acknowledges that Licensee is responsible for obtaining any licenses necessary to operate any third-party software, including guest operating systems and application programs.
3. TERM AND TERMINATION. Unless otherwise terminated as specified under this Agreement. Either party may terminate this Agreement at any time for any reason or no reason by providing the other party advance written notice thereof. Licensee agrees that this Agreement will automatically terminate without notice in the event Licensee discloses the Software in breach of Section 4 (Confidentiality) below. Upon any expiration or termination of this Agreement, the rights and licenses granted to Licensee under this Agreement shall immediately terminate, and Licensee shall immediately cease using, uninstall and will destroy or render practically inaccessible the Software, Documentation, and all other tangible items in Licensee’s possession or control that contain Confidential Information. The rights and obligations of the parties set forth in Sections 2(b), 2(c), 2(d), 2(e), 2(f), 3, 4, 5, 6, 7 and 8 survive termination or expiration of this Agreement for any reason.
4. CONFIDENTIALITY. "Confidential Information" shall mean the Software, all information regarding the Software (including any trade secrets, know-how, inventions, techniques, processes, and algorithms embodied in the Software), Documentation, Performance Data, any Updates, GettaBite products, product roadmaps, and other technical, business, financial and product development plans, forecasts and strategies, and other information provided by GettaBite to Licensee under this Agreement, whether disclosed orally, in writing, or by examination or inspection, other than information that Licensee can demonstrate (i) was already known to Licensee, other than under an obligation of confidentiality, at the time of disclosure; (ii) was generally available in the public domain at the time of disclosure to Licensee; (iii) became generally available in the public domain after disclosure other than through any act or omission of Licensee; (iv) was subsequently lawfully disclosed to Licensee by a third party without any obligation of confidentiality; or (v) was independently developed by Licensee without use of or reference to any information or materials disclosed by GettaBite or its suppliers. If Licensee wishes to disclose to GettaBite any information under this Agreement that Licensee considers proprietary or confidential to Licensee (“Licensee Information”), then Licensee agrees such disclosure will be governed by a separate non-disclosure agreement (“NDA”) by and between the parties. If Licensee is required to disclose Confidential Information by applicable law or court order, Licensee shall notify GettaBite of the required disclosure promptly in writing and shall cooperate with GettaBite in any lawful action to contest or limit the scope of the required disclosure. Licensee shall not use any Confidential Information for any purpose other than as expressly authorized under this Agreement. Without limiting the foregoing, Licensee shall use at least the same degree of care that it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care, to prevent the disclosure of such Confidential Information.
5. LIMITATION OF LIABILITY & INDEMNIFICATION.
(a) IT IS UNDERSTOOD THAT THE SOFTWARE IS PROVIDED FOR THE PURPOSES EXPRESSLY PERMITTED UNDER THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, BUT SUBJECT ALWAYS TO THIS SECTION 5, THE TOTAL LIABILITY OF GETTABITE AND ITS LICENSORS ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED $10.00. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL GETTABITE OR ITS LICENSORS HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING WITHOUT LIMITATION, TORT, STATUTE, CONTRACT OR OTHER), EVEN IF GETTABITE AND ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES ACKNOWLEDGE THAT THE VARIOUS CONSIDERATIONS DUE TO GETTABITE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT WERE TAKEN INTO ACCOUNT IN DETERMINING THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION 5. LICENSEE ACKNOWLEDGES AND AGREES THIS LIMITATION IS AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND THAT GETTABITE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
(b) YOU AGREE TO INDEMNIFY AND HOLD GETTABITE AND ITS AFFILIATES, AGENTS, EMPLOYEES, AND CONTRACTORS HARMLESS FROM ANY CLAIM, DEMAND, LOSS, COSTS OR EXPENSE, INCLUDING ATTORNEYS' FEES, MADE BY ANY PERSON ARISING OUT OF (i) YOUR NEGLIGENCE OR INTENTIONAL MISCONDUCT CONNECTED TO USE OF THE SOFTWARE AND/OR DOCUMENTATION, (ii) YOUR VIOLATION OF THIS AGREEMENT, (iii) YOUR VIOLATION OF STATE OR FEDERAL SECURITIES LAWS OR REGULATIONS, OR (iv) YOUR VIOLATION OF ANY OTHER PERSON'S RIGHTS, INCLUDING BUT NOT LIMITED TO YOUR INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK OR VIOLATION OF ANY PROPRIETARY OR PRIVACY RIGHT.
6. WARRANTY DISCLAIMER. IT IS UNDERSTOOD THAT THE SOFTWARE, DOCUMENTATION, AND ANY UPDATES MAY CONTAIN ERRORS AND ARE PROVIDED FOR THE PURPOSES EXPRESSLY PERMITTED UNDER THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, AND SUBJECT TO SECTION 5, THE SOFTWARE, THE DOCUMENTATION, AND ANY UPDATES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. TO THE FULLEST EXTENT PERMITTED BY LAW, AND SUBJECT TO SECTION 5, GETTABITE AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
7. OTHER PROVISIONS
(a) Governing Law, Injunctive Relief and Legal Costs. (i) Choice of Law. This Agreement and any dispute arising out of or related to this Agreement or the Software (“Dispute”) will be governed by Georgia law, without regard to its choice of law principles. The United Nations Convention for the International Sale of Goods shall not apply. (ii) Injunctive Relief. Either party may, at its sole discretion, seek preliminary judicial relief in any court of competent jurisdiction (including, but not limited to, preliminary injunctive relief). Also, the provisions of this Section 7 (a) may be enforced by any court of competent jurisdiction.
(b) Export Regulations. The Software is of United States origin and is provided subject to the U.S. Export Administration Regulations. Actions contrary to U.S. law are prohibited. Without limiting the foregoing, you agree that (1) you are not, and are not acting on behalf of, any person who is a citizen, national, or resident of, or who is controlled by the government of any other country to which the United States has prohibited export transactions; (2) you are not, and are not acting on behalf of, any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and (3) you will not use the Software for, and will not permit the Software to be used for, any purposes prohibited by law.
(c) Modification. This is the entire agreement between the parties relating to the subject matter hereof and to the fullest extent permitted by law, all other terms, representations, negotiations, arrangements or understandings are rejected. This Agreement supersedes and replaces any other agreements, representations, negotiations, arrangements or understandings between the parties and Licensee hereby waives any form requirements that may be contained in previous agreements and agrees that this Agreement shall take precedent with respect to its subject matter. No party has entered into this Agreement relying on any representations made by or on behalf of the other, other than those expressly made in this Agreement. No waiver or modification of this Agreement shall be valid unless in writing signed by each party.
(d) Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
(e) Waivers. Any waiver of these terms must be in writing and signed by the waiving party to be effective.
(f) Data Collection and Privacy.
(ii) Log Files. You acknowledge that correspondence and log files generated in conjunction with a request for support services may contain sensitive, confidential or personal information. You are solely responsible for taking the steps necessary to protect such data, including obfuscating the logs or otherwise guarding such information prior to sending it to GettaBite.
(g) Independent Parties. The parties are independent. Nothing in this Agreement shall be construed to create a partnership, joint venture, contractor, or agency relationship between the parties.
8. ASSIGNMENT. Licensee shall not and cannot assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law, merger, acquisition of stock or assets, or otherwise without the prior written consent of GettaBite. Any attempted assignment or transfer in violation of the foregoing will be null and void. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
9. CONTACT INFORMATION. If you have any questions about this Agreement, please direct all correspondence to: GettaBite LLC, 200 Mimosa Drive, Decatur, GA 30030.
10. TRADEMARKS. GETTABITE is a trademark of GettaBite LLC.