End User License Agreement
updated 5 months ago
END USER LICENSE AGREEMENT
LAST UPDATED: March 8, 2021
YOUR DOWNLOAD, ACCESS, OR OTHER USE OF THE APP (DEFINED BELOW) IS EXPRESSLY CONDITIONED ON YOUR ACCEPTANCE OF AND AGREEMENT TO THIS END USER LICENSE AGREEMENT. PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY BEFORE DOWNLOADING, ACCESSING OR OTHERWISE USING THE APP AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS.
This End User License Agreement (this “Agreement”) states the terms and conditions under which The Doughty Organization LLC (collectively, “Doughty” or “We” or “Our” or “Us”) will agree to allow you (“You” or “Your”) to use our software applications (each an “App”, and collectively, the “Apps”) that may be made available on our website (currently accessible at https://doughtyorg.com/ and any related websites including but not limited to https://dripshipper.io (the “Site”) or on the Shopify app store (currently accessible at https://apps.shopify.com (“Shopify”). By downloading, accessing or otherwise using the App, You agree to the terms and conditions of this Agreement. By downloading, accessing or otherwise using the App, You accept, without limitation or qualification, this Agreement. If You do NOT accept this Agreement, You must immediately delete the App and discontinue Your access and other use of the App and You may NOT access or otherwise use the App. Doughty and You are also referred to herein individually as a “Party” and collectively as the “Parties.”
We may make changes to this Agreement from time to time. We may notify You of such changes by any reasonable means, including without limitation, by making available the revised version of this Agreement through or in connection with the App. You can determine when We last changed this Agreement by referring to the “LAST UPDATED” legend above. Your access to or other use of the App following changes to this Agreement will constitute Your acceptance of those changes.
1.1 “Applicable Laws” means all applicable international, federal, state and local laws, statutes, rules, standards, regulations and policies related to the App, Confidential Information (defined below), Data, and Trademarks, including without limitation, relating to data collection, protection, security and privacy laws.
1.2 “Customer” means Your customer that purchases Goods via the App.
1.3 “Data” means any materials, information, content, Customer information (including personally identifiable information), and other data that are uploaded, input, generated, received and otherwise transmitted by You, Customers and/or third-party services (e.g., live chat, automated messages, phone calls, texts, etc.) on or via the App.
1.4 “Goods” means the products and other goods sold by You to Customers via the App.
1.5 “IP Rights” means worldwide: (a) patents and patent applications and industrial designs and other governmental grants for the protection of inventions or industrial design; (b) patentable inventions; (c) copyrights, copyright registrations and applications for copyright registration, moral rights, rights of publicity and privacy, and mask work rights and rights of attribution and integrity; (d) trade secrets, inventions and know-how; (e) trademarks, trade names, logos, service marks, designs, trade dress, emblems, signs, insignia, slogans, other similar designations of source or origin and general intangibles of like nature; (f) any registrations or applications for registration for any of the foregoing, including without limitation, any provisionals, divisionals, continuations, continuations-in-part, renewals, reissuances, re-examinations and extensions (as applicable); (g) analogous rights to those set forth above and any other intellectual property or proprietary rights in any jurisdiction; (h) all derivatives of the rights set forth above; and (i) rights to sue for infringement of the rights set forth above.
1.6 “Modifications” means all translations, improvements, corrections, adaptations, derivatives, enhancements, changes, additions, revisions and other modifications.
App. The App includes without limitation, the Apps, Doughty analytics and algorithms, related Modifications, and all IP Rights thereto.
- License. Subject to the terms and conditions in this Agreement, Doughty hereby grants to You a limited, revocable, non-exclusive, non-sublicensable, non-transferable and non-assignable license only to install, access and use the App for the Term (defined below); and for no other purpose or under any other condition whatsoever. The foregoing license does not include any permission for You to create any Modifications of or to the App. You acknowledge and agree that (i) the foregoing license is non-exclusive, (ii) We provide the App to other companies and entities, and (iii) We retain the right to contract with other companies and entities for selling products and goods even if the same or similar to the Goods.
- Ownership. You acknowledge and agree that Doughty owns all right, title and interest in and to the App, including without limitation, all related IP Rights, text, data, audio, graphics, files, interfaces, algorithms, other information and materials originating in the App, and any Modifications made to the App. All rights in and to the App not expressly granted in this Agreement are reserved to Doughty, and no additional licenses are granted or implied hereunder.
- Limited Support. We will provide the following support in our sole and absolute discretion: (a) first-line support to Customers, such as simple Customer inquiries and requests; and (b) support to You for the App. If support to Customers requires action beyond simple inquiries and requests, You shall provide information and assistance to respond to Customer such inquiries and requests. For avoidance of doubt, We do not provide any representations or warranties regarding any support.
- Restrictions. You hereby represent and warrant that You will not: (i) use the App in any way that would violate any Applicable Law; (ii) use the App to store, transmit, market, or sell Data, Goods, or Trademarks that infringe, violate, or misappropriate (collectively, “Infringe”) third-party IP Rights, or that are libelous, fraudulent, obscene, defamatory, threatening, abusive, unlawful, tortious, pornographic, offensive or otherwise harmful (in Our sole and absolute discretion); (iii) create Modifications of the App; (iv) license, sublicense, sell, rent, lease, transfer, assign, distribute, time share, host, or otherwise commercially exploit the App to any third-party (except to Customers); (v) reverse engineer, modify, decompile, or otherwise attempt to get the source code of the App, or work around technical protections or limitations in the App; (vi) upload or store within the App any viruses, worms, time bombs, Trojan horses, or other harmful or malicious code, files scripts, agents or programs; (vii) interfere with or disrupt the integrity or performance of the App; or (viii) attempt to gain unauthorized access to the App or its related systems or networks.
Data. You hereby grant Doughty a worldwide, non-exclusive, sublicensable, royalty-free, assignable and transferrable right and license to store, host, reproduce, maintain, compile, modify, edit and otherwise use the Data for marketing activities, provide the App and perform Our obligations under this Agreement for the Term; and for no other purpose or under any other condition whatsoever. You will monitor and update the Data in the App to ensure accuracy. You agree to collect, license, share, and otherwise use the Data in accordance with all Applicable Laws and Your own posted privacy policies, which shall comply with all Applicable Laws.
Your Trademarks. You hereby grants Doughty a worldwide, non-exclusive, sublicensable, royalty-free, assignable and transferrable right and license to use Your trademarks, service marks, logos and other designated marks and designs (“Trademarks”) during the Term to: (a) provide the App and perform Our obligations under this Agreement; and (b) identify You as a user of the App and a customer of Doughty, for use in advertising and other promotional purposes; and for no other purpose or under any other condition whatsoever.
Other Information. Your (including Customer’s) use of the App generates information that Doughty uses to improve and maintain its products. You agree that We may collect, store, generate, and analyze such information, which may include meta-data, testing, analytical, diagnostic, and other usage data and statistics. We will only use such information that is anonymized and does not contain any of Your (including Customer’s) personal information, and We will only use it to maintain and improve Our products, and to verify compliance with this Agreement.
Feedback. You or Customers may give or otherwise provide comments, recommendations, suggestions and other feedback related to this Agreement, including without limitation, the App (collectively, “Feedback”). You acknowledge and agree that We own all right, title and interest in and to the Feedback so that We may freely use any Feedback in any manner We deem appropriate without any payment, royalty or other obligation to You or Customers.
Access Information. You are fully responsible and liable for: (a) maintaining the confidentiality of Your username, password, and any other log-in information for the App (“Access Information”); (b) any activities that occur under the Access Information, including without limitation, any user You allow to access or use Your account (including Customers); and (c) promptly notifying Doughty of any unauthorized access or use of the App. You will systematically revoke user access when appropriate, and maintain appropriate standards for user permissions and use of the App.
Consent to Operational Emails and Texts. We will need to communicate with You regarding the App, including without limitation, planned downtimes, features releases, account management, or other aspects of the App. You agree that We may send You emails or text messages (depending on the information You provide and Your preferred communication method) for these purposes.
Consent to Marketing and Promotional Emails and Texts. We will communicate with You regarding the App, including without limitation, new promotions, asking for feedback, partner, or other aspects of the App. You agree that We may send You emails or text messages (depending on the information You provide and Your preferred communication method) for these purposes.
Your Responsibilities and Warranties. You hereby represent and warrant that: (a) You have the authority to enter into this Agreement; (b) You will comply with the terms and conditions of this Agreement; (c) You will comply with all Applicable Laws that concern Your use of the App and sale of the Goods; (d) You will only use the App for Your own internal business purposes; (e) You will not use the App in any hazardous or high-risk environments requiring fail-safe performance, in which the failure or malfunction of the App could lead to death, personal injury, illness, or severe physical or property damage; (f) You will not permit users to whom You grant access to the App to use it in any U.S. embargoed country, or in violation of any U.S. export law; (g) You have obtained the requisite approvals, authorizations and/or consents necessary for the transmission, use, storage, license and processing of the Data as contemplated hereunder; (h) You shall comply with all Applicable Laws, including without limitation, laws relating to privacy and data security, with respect to use of the Data and Trademarks as contemplated hereunder; and (i) the Data and Trademarks do not Infringe any IP Right of any third-party.
Open Source. Certain components or libraries included in the App may be covered by open source licenses. To the extent required by such open source licenses, the terms of such licenses will apply in lieu of the terms of this Agreement where appropriate, only with respect to those open source licenses. You shall comply with such open-source license agreements.
Third-Party Suppliers and Providers. You understand and agree that the App only provides a connection between You and third-party suppliers and providers, as We are only an intermediary between You and such third-party suppliers and providers. You acknowledge and agree that We do not: (a) manufacture or otherwise create the Goods as all Goods are supplied from third-party manufacturers and suppliers; or (b) store, package, create marketing, ship, or otherwise fulfill the Goods. WE HEREBY DISCLAIM ANY AND ALL LIABILITY, INCLUDING WITHOUT LIMITATION, PRODUCTS LIABILITY AND OTHERWISE, FOR THE GOODS AND OTHER THIRD-PARTY PRODUCTS OR SERVICES PURCHASED THROUGH OR OTHERWISE RELATED TO THE APP OR GOOD.
Duty. The Party receiving (“Receiving Party”) Confidential Information from the Party disclosing (“Disclosing Party”) Confidential Information, will take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information with the same degree of care, but no less than reasonable care, as used to protect the Receiving Party’s own confidential information of similar nature. The Receiving Party will limit the distribution and communication of the Confidential Information to employees, subcontractors, or other agents of the Receiving Party, who have a need to know such Confidential Information in order to perform its duties under this Agreement and who have confidentiality obligations and restrictions at least as strong as this Agreement. The Receiving Party shall not disassemble, reverse engineer, or otherwise decompile any of the Confidential Information. The Receiving Party shall promptly notify the Disclosing Party in the event of any unauthorized use or disclosure of the Confidential Information.
Confidential Information. “Confidential Information” means any non-public, proprietary or confidential information provided by the Disclosing Party, either directly or indirectly, to the Receiving Party under this Agreement that: (a) if in tangible or written information or materials, is marked as “confidential” (or with words of similar meaning) or that should reasonably be understood to be confidential given the nature of the information and circumstances of its disclosure; and (b) any orally disclosed information that is reasonably understood to be confidential or proprietary. Your Confidential Information includes without limitation, the Data and Access Information. Doughty Confidential Information includes without limitation, the App, Feedback and specifications, development plans and IP Rights therein.
Exclusions. The obligations described above will not apply to any Confidential Information to the extent that the Receiving Party can prove with its previous written records: (a) was publicly known at the time it was disclosed or becomes publicly known through no fault or action of the Receiving Party; (b) was known to the Receiving Party, without restriction, at the time of disclosure; (c) was independently developed by the Receiving Party without any access to or use of the Confidential Information; (d) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party; or (e) is disclosed by the Disclosing Party to any third-party under no obligation of confidentiality to the Disclosing Party.
Compelled and Other Disclosure. If the Receiving Party is required, pursuant to a legal proceeding or other legal or regulatory requirement, to disclose any Confidential Information, reasonable prior notice will be given to Disclosing Party in order to contest, seek a protective order, or otherwise limit such disclosure. The Receiving Party shall reasonably cooperate with the Disclosing Party’s application for a protective order or other remedy, and the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose. Either Party may disclose this Agreement or the terms herein to such Party’s financial and legal advisers and current and potential lenders, acquirers and investors in connection with a due diligence inquiry.
Payments. You will pay promptly the App fees as described in the Shopify app store or on the Site. All payments are non-refundable. If You are delinquent in the payment of any invoice, Doughty may at its sole option suspend access to the App until such payment is made in full (with interest, if applicable). For payments due directly to Doughty, payment will be made without deduction, counterclaim or set-off, and any payments that are not timely paid as provided hereunder will, at Doughty’s sole option, bear interest at the rate of the lower of: (a) 1.5% per month; or (b) the highest rate permitted by Applicable Law.
Taxes. You will be responsible for the payment of all taxes which may be levied or assessed in connection with this Agreement, the App and the Goods, excluding taxes based on Doughty’s net income.
DISCLAIMERS; LIMITATIONS OF LIABILITY; INDEMNIFICATION.
Disclaimer. THIS SECTION 6.1 LIMITS OUR LIABILITY, SO PLEASE READ IT CAREFULLY. THE app, related services, FREE TRIALS and goods are PROVIDED “AS-IS” AND we HEREBY disclaim all warranties of any kind with respect to the app, related services, goods, SUPPORT AND doughty CONFIDENTIAL INFORMATION, whether express or implied, including without limitation, the implied warranties of merchantability, fitness for a particular purpose, ACCURACY, SECURITY, title and non-infringement. We do not warrant that the App, related services, FREE TRIALS, goods, SUPPORT or doughty confidential information will perform without error or interruption OR WILL BE SECURE. You agree that Your purchase of the App IS not dependent on the availability of any future features or functionality. You are SOLELY responsible AND LIABLE for any data loss or security breach. YOU ACKNOWLEDGE THAT WE ARE ONLY An INTERMEDIARY AND are not responsible for goods (including their availability, functioning, or any errors, loss, or damages the goods might GENERATE OR cause) OR ANY PACKAGING, MARKETING, STORING, SHIPPING, OR OTHER FULFILLMENT SERVICES RELATED TO THE GOODS.
Limitation of Liability. THIS SECTION 6.2 LIMITS OUR LIABILITY.
(a) Indirect Damages. WE will NOT be liable to YOU, CUSTOMERS, or any third-party for any indirect, punitive, special, incidental, or consequential damages ARISING UNDER, RELATED TO, OR IN CONJUNCTION WITH THE APP, RELATED SERVICES, FREE TRIALS, GOODS, PRODUCT LIABILITY, SUPPORT, DATA, OR CONFIDENTIAL INFORMATION, or for interruption of business, loss of profits or revenue, even if WE HAVE been previously advised OF the possibility or ARE aware of such damages, and whether any such claim is based in tort or contract.
(b) Direct Damages. To the maximum extent allowed under law, OUR liability for DIRECT damages related to this Agreement, THE APP, RELATED SERVICES, FREE TRIALS, GOODS, PRODUCT LIABILITY, SUPPORT, DATA, OR CONFIDENTIAL INFORMATION will be limited to direct damages actually incurred up to the amount of fees payable for the App during THE month IMMEDIATELY prior to the event giving rise to the claim, whether the claim is based in negligence, strict liability, breach of contract, warranty, or other contract or tort claim. YOU agree that YOU ARE not owed any duties or remedies not expressly described in this Agreement.
Indemnification. You will defend, indemnify and hold Doughty and its affiliates, and its and their officers, directors, employees and agents (collectively, “Doughty Indemnitees”) harmless from and against any and all claims, governmental investigations, demands, actions, and proceedings, real or threatened, and all losses, judgments, awards, settlements, damages, fines, injuries, penalties, and costs (including, without limitation, reasonable attorneys’ fees and expenses) arising out of, related to, or in connection with Your breach or other violation of Sections 2.1(e) (Restrictions), 2.2 (Data), 2.3 (Trademarks), 2.6 (Access Information) and/or 2.8 (Your Responsibilities and Warranties). In the event of such a claim, Doughty will provide You with: (a) prompt written notice of the claim; and (b) all reasonably necessary assistance and information for You to defend the claim (at Your sole cost and expense). You may not settle any claim that does not fully and unconditionally release the Doughty Indemnitees from any and all liability for the indemnified claim.
TERM & TERMINATION.
Term. The term of this Agreement is for as long as You are subscribed to the App or earlier terminated in accordance with this Agreement (“Term”).
Termination. We may terminate this Agreement for any or no reason upon written notice to You. If either Party breaches a material term of this Agreement, this Agreement may be terminated for cause. In such an event, the non-breaching Party will give written notice of the breach to the other Party, and if the breach can be reasonably cured, then the breaching Party will have the opportunity to do so. If the material breach is not substantially cured within thirty (30) days from receipt of the written notice, the non-breaching Party may notify the breaching Party in writing of the immediate termination of this Agreement.
Effect. You are solely responsible for retrieval of the Data prior to the expiration or termination of this Agreement, and Doughty will be under no obligation to store, maintain, or provide any of the Data after expiration or termination. Upon expiration or termination of this Agreement, the license to the App will automatically terminate and revert to Doughty, and You will promptly: (a) return or destroy all copies of Doughty Confidential Information; (b) cease all use of the App and related services; and (c) pay any outstanding fees owed to Doughty including all remaining App fees applicable to the remainder of the Term.
Survival. All terms and provisions herein, which by their nature should survive expiration or termination of this Agreement, shall so survive.
Free Trials. Doughty may offer certain Doughty functionalities, analytics, products, services, or App features or functionalities to You at no charge, including free trials (collectively, “Free Trials”). Your use of Free Trials is subject to Your restrictions and obligations as described in this Agreement and any additional terms that Doughty may specify at the time they are made available, and are only permitted for the period designated by Doughty. Doughty may terminate Your right to use Free Trials at any time in Doughty’s sole and absolute discretion, without liability to You. All information regarding the characteristics, features or performance of Free Trials constitute Doughty’s Confidential Information.
Force Majeure. We will be excused from failures or delays in delivery or performance hereunder, if such failure or delay: (a) is attributable to causes our reasonable control such as weather, acts of God, natural disaster, war, terrorist attack, disease, epidemic/pandemic, criminal activity, riot, civil unrest, strike, or utility failure; and (b) such failure or delay could not have been prevented or circumvented by Us through the use of commercially reasonable alternate sources or workaround plans. In the event of any such delay, the time of delivery or performance will be extended for a period of time equal to the time lost by reason of such delay.
Governing Law; Dispute Resolution; Venue. This Agreement and any dispute between You and Doughty will be governed by the laws of California, despite the choice of laws rules of any jurisdiction to the contrary. For any dispute arising out of, relating to, or in connection with this Agreement, the claimant must provide to the other Party a written notice setting forth the basis of the dispute and relief sought, and the Parties shall attempt in good faith to resolve any such dispute by negotiation and consultation between the Parties’ business contacts (or, if necessary, escalating to higher levels in a Party’s management structure), including not fewer than three (3) weekly negotiation sessions. The procedures set forth in this Section 9.2 shall be the exclusive mechanism for resolving any dispute, and satisfaction of these conditions are express conditions precedent to the filing of any legal suit, action, or proceeding regarding any dispute. Either Party shall institute any legal suit, action, or proceeding arising out of or relating to this Agreement in the federal or state courts in each case located in Santa Clara County, California, and the Parties hereby irrevocably and unconditionally consent to the jurisdiction thereof. Any claim or cause of action arising out, related to, or in connection with this Agreement must be filed within one (1) year after such claim or cause of action arises, or be forever barred. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act shall not apply to this Agreement.
Assignment. You will not assign, delegate, or transfer, in whole or in part, this Agreement or any subscription, whether voluntarily, involuntarily, by merger, consolidation, dissolution, sale of assets, or otherwise, without receiving advance written approval from a duly authorized representative of Doughty. Doughty may at any time, and without notice to You, assign, subcontract, delegate, or transfer, in whole or in part, obligations under this Agreement. This Agreement will be binding on, and inure to the benefit of, the Parties and their respective and permitted successors and assigns.
Injunctive Relief; Prevailing Party. We shall have the right to enforce this Agreement and any of its provisions by injunction, specific performance or other equitable relief without prejudice to any other rights and remedies We may have for a breach of this Agreement. A Party prevailing in any litigation or arbitration related to this Agreement or the subject matter hereof will be entitled, in addition to such other relief as may be granted, to an award of reasonable attorneys’ fees.
Headings and Draftsmanship. The section headings in this Agreement are for reference and convenience only and do not explain, modify, interpret, or expand the provisions of this Agreement. The language of this Agreement shall be construed according to its fair meaning, and shall not be construed for or against any Party as a result of the source of its draftsmanship.
Miscellaneous. This Agreement constitutes the entire agreement relating to its subject matter hereof and supersedes all prior or contemporaneous oral or written communications, proposals, representations warranties, agreements or other communications and prevails over any conflicting or additional terms of any quote, order or other communication between the Parties relating to its subject matter. If any provision of this Agreement is found by a court or arbitrator to be invalid, the Parties agree that the court or arbitrator should try to give effect to the Parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect. No waiver of any provision of this Agreement will be deemed a further waiver or continuing waiver or that provision or any other provision, and a Party’s failure to assert any right or provision under this Agreement will not constitute a waiver of that right or provision. Nothing in this Agreement will be deemed to create an agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship between the Parties and any user or other person or entity, nor do these terms extend rights to any third-party.
Notices. Except for the email or electronic delivery of operational communications regarding Your use of the App, notices required by this Agreement or law must be in writing and will be delivered by personal delivery or first-class mail, and will be deemed delivered three (3) days after they are sent. All notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient. Notices for Doughty will be sent to: The Doughty Organization, LLC, Attn: Legal Department, 1950 Corporate Way #17708, Anaheim, CA 92801. Notices for You will be sent to the address specified in the App or in the Data.