SOFTWARE LICENSE SUBSCRIPTION AGREEMENT

  1. Grant of License.

Boost Up Custom LLC, also known as (“Boost Up Custom”) hereby grants to Subscriber, and Subscriber accepts from Boost Up Custom, a license to use certain software described as Boost Up Custom’s cloud based toolkit of software and other solutions including but not limited to: Custom Quote Estimator, Custom Checklists, Outsourcing Tools, Sales Tools, Training, Personalization Settings Pages, Downloads, tutorials, support materials and related documentation (hereinafter the “Licensed Software”), in machine-readable source and object code formats, at each designated web based subscription, as the case may be, subject to and in accordance with the terms, conditions and limitations of this Agreement.  

  1. Scope of License.

Subscriber agrees that it will use the Licensed Software hereunder only in connection with its own internal use, and it will not, without the express written permission of Boost Up Custom LLC, sell, lease, or otherwise provide or make available the Licensed Software to any third party.

A minimum of one subscription per retail location is required. Although multiple workstations (devices) may access the cloud based software, it is NOT recommended to produce custom jewelry estimates on multiple devices simultaneously. This practice is considered an abuse of subscriber agreement, and thus, a breach of contract. Attempting to simultaneously produce custom jewelry estimates from multiple devices using only one subscription may produce unpredictable results. If Subscriber requires that two or more devices produce quotes simultaneously, then Subscriber should either: 1) Purchase more than one subscription, or 2) simply wait for one estimate to finish before starting another estimate on a different device.

  1. Payment Terms.

(a) License Pricing. License pricing will be based on the monthly subscription fees (the “Monthly Subscription Fees”) detailed on the website of Boost Up Custom during the time of your new registration. Subscriber must provide credit card credentials for prepaid access to the toolkit for the subsequent 30 days. In addition to the foregoing charges, Subscriber is obligated to pay any federal, state, local, and other taxes, fees and assessments imposed in connection with this Agreement.

(b) Credit Card. Subscriber should pay its Monthly Subscription Fees by credit card. In such cases, Subscriber authorizes any interested party to charge its designated credit card for all such fees. The Subscriber’s credit card issuer agreement shall govern the use of the designated card in connection with the Software Licensing. And the Subscriber must refer to that agreement with respect to its rights and liabilities as a cardholder.

(c) Term Commitment. The credit card provided will automatically be charged each month indefinitely, or until the subscriber cancels his account. All 30 day billing cycles are prepaid and the subscriber will not be refunded any amount of the prepayment upon cancellation.

  1. License Activation Date.

The License Activation Date shall be the date that Subscriber registers for the Software. It is Subscriber’s responsibility to access a new register follow-up email and selecting the link to confirm said registration.

  1. Duration and Termination.

(a) Duration. Unless terminated earlier as provided elsewhere in this Agreement, Boost Up Custom LLC or his assigns will continue to provide the Licensed Software indefinitely, and for as long as the Subscriber continues to pay the Monthly Subscription Fee, or until Subscriber choses to cancel.

(b) Termination. Effective at any time after the Term Commitment, this Agreement may be terminated by Subscriber for any reason. It is the duty of Subscriber to cancel his account if desired. This is achieved by logging into Licensed Software with one’s subscription username and password locating the “Subscription” page, and canceling with the simple click of a mouse in the indicated location, and confirming the cancellation when prompted.

(c) Early Termination Charges. The rates and discounts set forth in this Agreement are based on Subscriber’s commitment to purchase the Software License for the entire Term Commitment. Subscriber understands and agrees that it is impossible to calculate all losses if the Agreement is terminated prior to the end of the Term Commitment. All 30 day billing cycles are prepaid and the subscriber will not be refunded any amount of the prepayment upon cancellation.

 (d) For Breach. It is Subscriber’s responsibility to update his credit card details for payment. If the entered credit card details are no longer valid, then Subscriber will not allowed to access Licensed Software until this information is updated.

(e) Other Charges. Nothing in this Agreement shall relieve Subscriber from its liability for payment for services rendered by the software prior to the termination of this Agreement, as the case may be.

6 License Not a Sale.

This license does not constitute a sale, nor does it pass to Subscriber any title to or any proprietary rights in the Licensed Software, all of the same being expressly reserved to and vested in the Boost Up Custom. Nor shall Subscriber acquire any right or interest in the Licensed Software as a result of any changes to, modifications of or additions to the Licensed Software made by Subscriber.

  1. Software Maintenance.

Boost Up Custom LLC shall have no obligation to correct errors, or remedy defects in, or to provide modifications or enhancements to the Licensed Software except as may be provided in a separate maintenance agreement.

  1. User Registration.

It is Subscriber’s responsibility to keep all registration usernames and passwords secret.

  1. Warranties.

For so long as Subscriber licenses the Software, Boost Up Custom warrants that the Licensed Software will substantially conform to its documentation; provided, however, the user or Subscriber may void this warranty if Subscriber (i) augments or alters the Licensed Software or causes any other person to do so; (ii) fails to install any upgrade, enhancement, fix or release of the Licensed Software or (iii) fails to keep its payments current.

 

  1. DISCLAIMERS and Hold Harmless Agreement.

(a) Disclaimer of warranties; limitations of liability. Subscriber expressly agrees that use of the software is at its sole risk. The software is made available on an “as is” basis. No person, or organization or any supplier, Boost Up Custom, employee, agent, or contractor makes any warranty whatsoever regarding the software, any information, services or products provided through or in connection with the software, or any results to be obtained through the use thereof, and Boost Up Custom LLC on his assigns hereby expressly disclaims on behalf of itself and all suppliers any and all warranties, including without limitation: any express or implied warranties of: 1) merchantability; 2) fitness for a particular purpose; 3) effort to achieve purpose; 4) quality; 5) accuracy; 6) non-infringement; and 7) title. Subscriber further agrees that Boost Up Custom shall not be liable to Subscriber, or any third party, for any loss of profits, loss of use, interruption of business, error, omission, deletion, defect, delay in operation or transmission, computer virus, communications line failure, theft or destruction or unauthorized access to, alteration of, or use of records, whether for breach of contract, tortious behavior, negligence, or under any other cause of action. Furthermore, Boost Up Custom will be held harmless for any losses incurred by inaccurate quotes due to changes during the design process, abuses of subscription agreement, user error, poor internet connection, or software updates and maintenance issues. Subscriber understands that the custom jewelry estimating tools are estimates only, and should be treated as such. The initial estimates provided should be based upon subscriber’s best knowledge at the time of the quote. Additionally, Subscriber understands that the creation of custom jewelry is a creative process which means that changes to the initial order, and consequently the estimate, may be required and should be expected.

(b) Subscriber remedies. Subscriber’s remedies shall be strictly limited to the amount paid to Boost Up Custom by or on behalf of Subscriber for licensing the software 30 days prior to the claimed injury or damage. Boost Up Custom LLC is not liable for any direct, indirect, incidental or consequential damages of any kind whether under this agreement or otherwise, even if he or his assigns was advised of the possibility of such damages or was grossly negligent. Modifications made to Licensed Software by Boost Up Custom or any third party voids any remaining express or implied warranties.

(c) Software Update. Boost Up Custom may update License Software and change its formula for deriving estimates at any time, and without any notice to Subscriber. Periodic software maintenance may require temporary shutdown access to the web based software, and although unlikely, may require that users need to re-enter personalized settings.

(d) Choice of Law. All disputes will be governed by the rules and law of the state of Utah, Second District.

  1. Proprietary property of Boost Up Custom.

(a) Subscriber acknowledges that the Licensed Software, including all documentation, all formulas, all screens, all images, names and formats used in connection therewith, are the exclusive proprietary property of Boost Up Custom, and Subscriber shall not publish, disclose, display, provide access to or otherwise make available any Licensed Software or documentation thereof, or any screens, formats, reports or printouts used, provided, produced or supplied from or in connection therewith, to any person or entity other than an employee or agent of Subscriber without the prior written consent of, and on terms acceptable to, Boost Up Custom LLC or his assign, which consent shall not be unreasonably withheld; provided, however, that Subscriber may disclose to a governmental or regulatory agency or to customers of Subscriber any information expressly prepared for disclosure to such governmental or regulatory agency or to such Subscriber. Except as required by law, Subscriber shall not disclose Subscriber use of Licensed Software in any advertising or promotional materials without the prior written consent to such use, and approval of such materials, by Boost Up Custom LLC.

(b) Subscriber acknowledges that the Licensed Software is highly confidential proprietary information and trade secrets the unauthorized disclosure of any part of which would result in serious injury to Boost Up Custom. Subscriber shall take reasonable precautions to maintain the security and confidentiality of the Licensed Software, which precautions shall not be less stringent than those employed, or that reasonably should be employed, by Subscriber to protect its own most proprietary information.

(c) This License Agreement and the terms hereof are confidential, and no information concerning the same shall be disclosed without written consent of the parties, except as may be necessary to conform to generally accepted accounting principles and to comply with applicable laws and regulations.

(d) The obligations of this Paragraph 11 shall survive termination of this Agreement. Subscriber understands that the unauthorized publication or disclosure of any Licensed Software or copies thereof, or the unauthorized use of the Licensed Software would cause irreparable harm to the Boost Up Custom for which there is no adequate remedy at law. Subscriber therefore agrees that in the event of such unauthorized disclosure or use, Boost Up Custom LLC may, at its discretion and at Subscriber’s expense, terminate this Agreement, obtain immediate injunctive relief in a court of competent jurisdiction, or take such other steps as it deems necessary to protect its rights.

(e) In the event that Subscriber intentionally and willfully engages in any unauthorized use, disclosure or application of the Licensed Software, or willfully and intentionally permits or causes the unauthorized use, disclosure or application of the Licensed Software, Subscriber shall forfeit its rights to use the Licensed Software under this or any other Agreement between Subscriber and Boost Up Custom LLC, together with all payments made under this or any other Agreement, cease all use of the Licensed Software, and return all copies of the Licensed Software, and all documentation, in any form, to Boost Up Custom or its successor who may, at Subscriber’s expense, take such lawful steps as it deems necessary to preserve the security of the Licensed Software and prevent Subscriber’s further use thereof.

(f) The rights of the Boost Up Custom under this Agreement supplement and are not in lieu of any other remedies provided by law or in equity. In addition, Subscriber shall be liable for all costs and attorney’s fees in connection with the pursuit by Boost Up Custom of any remedy provided or permitted by this Agreement, unless otherwise specified.

  1. Dispute Resolution.

(a) Any dispute between the parties arising under or relating to this Agreement that cannot be resolved by the parties themselves shall be submitted to mediation in Ogden Utah, administered by and conducted in accordance with the Rules of of the American Arbitration Association. Each party will bear its own costs in the mediation, including attorneys’ fees, and one-half the cost of the mediator.

(b) The arbitrator shall have the authority to award such damages as are not prohibited by this agreement and may, in addition and in a proper case, declare rights and order specific performance, but only in accordance with the terms of this Agreement.

(c) Any party may apply to Utah’s Second District Court to enforce an arbitrators’ award, and if enforcement is ordered, the party against which the order is issued shall pay the costs and expenses of the other party in obtaining such order, including reasonable attorneys’ fees.

(d) Notwithstanding the provisions of paragraph 12(a) and (b) above, any action by Boost Up Custom LLC to enforce its rights under paragraphs 3, 5 or 11 of this Agreement or to enjoin any infringement of the same by Subscriber, may be commenced in the state or federal courts of New Jersey, and each party consents to personal jurisdiction and venue in such courts for such actions.

  1. General

(a) Waiver of Breach. The fact that one party excuses or overlooks a – breach of any provision of this Agreement by the other party does not mean that such party excuses any other breach or waives its right to remedy any other breach by the other party.

(b) Binding Effect. This Agreement shall be binding on and inure to the benefit of the parties and their respective successors

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