1. LICENSE GRANT AND RESTRICTIONS.
DUBASKY Services LLC, a New York limited liability company, subject to its own license of the Software, grants you (“you”, “your” and “Licensee” means you the Licensee on whose behalf the Software is licensed and Services are sold) the following non-exclusive, limited rights on the condition that you comply with all of the terms and conditions of this Agreement.
License: This License is solely for commercial, in-store use by you within the United States, Puerto Rico, US Virgin Island and Canada, or other approved territory on a compatible tablet or mobile device (each a “CPU”), and is not for use on or in connection with any online sales or e-commerce transactions. You may install the Software on one (1) CPU per license.
Your license to use the Software is conditioned on your compliance with the scope of this license, and any use by you outside this scope will cause the agreement to terminate automatically, and shall cause your license to be revoked automatically.
You are not licensed or permitted under this Agreement and you agree that you shall not, nor shall you assist or permit others to, do any of the following: (a) modify, adapt, translate, embed, rent or sublicense (including offering the Software to third parties in any manner, whether on an applications service provider or a time-sharing basis); (b) assign, loan, resell, rebrand, transfer or distribute the Software, CDROM(s), or related materials or create derivative works based upon the Software or any part thereof; (c) decompile, reverse engineer, or disassemble the Software; (d) copy the Software in whole or part, alter, adjust, repair or circumvent any aspect of the Software, or use trade secret information contained in the Software, to develop software to interface with the Software; (e) remove, alter or obscure any confidentiality or proprietary rights notices (including copyright notices) of the Company or its licensors on or within the Software or any copies of the Software; or (f) make the software available to any third party via any server or on the Internet. The prohibitions in this paragraph shall survive termination of this Agreement.
Additionally, Licensee shall not use, nor shall it permit others to use the Software: (i) for any unlawful, invasive, infringing, defamatory, fraudulent or obscene purpose; (ii) to send any virus, worm, trojan horse or harmful code or attachment; (iii) to alter, steal, corrupt, evade, disable, destroy, trespass or violate any security or encryption of any computer file, database or network; (iv) so as to interfere with the use of the Company, its Suppliers, or connectivity partner network by other Licensees or authorized users; or (v) in violation of the acceptable use policies of the Company’s Suppliers or service providers, including its backbone providers. The prohibitions in this paragraph shall survive termination of this Agreement.
Unless you have entered into an agreement to use an affiliate’s payment processing services, which agreement expressly provides for an extended term, the Company may terminate this License to you any time upon thirty (30) days’ written notice (email notice sent to the email address provided by you will suffice, whether or not received by you).
2. RESERVATION OF RIGHTS AND OWNERSHIP.
The Software is licensed (not sold) to you, and the Company, for itself and its licensors, reserves all rights not expressly granted to you in this Agreement. In order to continue using the software under license, you must continue to abide by the terms and conditions in this Agreement. The Software is protected by copyright, trade secret and other intellectual property laws. The Company and/or its licensors own the title, copyright, and other worldwide intellectual property rights in the Software and all copies of the Software. This Agreement does not grant you any rights to trademarks or service marks of the Company or those of its licensors. You further agree that you will not challenge the Company’s or its licensor’s copyrights in or to the Software, and further shall not challenge their rights in or to the DUBASKY trademark owned by Masari Future Map.
3. THIRD PARTY SERVICES AND WEBSITES.
(a) In connection with the promotion or your use of the Software, you may be made aware of or offered services, features, products, and promotions provided by third parties, apart from the Company (“Third Party Services”). If you decide to use Third Party Services, you are responsible for reviewing them and understanding the terms and conditions governing any Third Party Services. For purposes of this Agreement, any authorized reseller or master licensee of DUBASKY Software and Services through whom you have been provided such Software shall be a “Third Party” and its services and website shall be, without limitation, considered “Third Party Services” and “Third Party Websites”. You authorize the Company to use and disclose your contact information, including name and address, for the purpose of making the Third Party Services you choose available to you. You also agree that the third party, and not the Company, is responsible for the performance of the Third Party Services, and that you will look only to such third parties in connection with the provision or any failure to provide such Third Party Services.
(b) The Software also may contain or reference links to third party websites operated by third parties (“Third Party Websites”). These links are provided as a convenience only. Such Third Party Websites are not under the control of the Company or its licensors, and neither the Company nor its licensor is responsible for the content of any Third Party Website or any link contained in a Third Party Website. Neither the company nor its licensors review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Websites, and the inclusion of any link in the Software or Services is not and does not imply an affiliation, sponsorship, endorsement, approval, investigation, verification or monitoring by the Company, its licensors of any information contained in any Third Party Website. In no event will the Company or its licensors be responsible for the information or contained at such Third Party Website or for your use of or inability to use such Website. Access to any Third Party Website is at your own risk, and you acknowledge and understand that linked Third Party Websites may contain terms and privacy policies that are different from those of the Company. The Company is not responsible for such terms, policies and content, and you agree and acknowledge that neither the Company nor its licensors shall have any liability for them.
4. LICENSEE OBLIGATIONS.
In connection with this License You acknowledge and agree that you must: (a) provide for your own access to the World Wide Web and pay any service fees associated with such access, and (b) provide all equipment and services necessary for you to make sufficient connection to the World Wide Web to enable the Software and Services to be provided, including a tablet or other mobile device with an up-to-date compatible operating system, Ethernet, modem, and other equipment. You shall, at your own expense, provide all necessary preparations required to connect to the Software and Services and shall comply with the Company’s installation and maintenance specifications for delivery of the Software and the Services, and you are also solely responsible for the costs of any relocation of its equipment or installation of Software. You shall be responsible for the operation and maintenance of all hardware, software, cabling, services and components that are not provided to you by the Company, and if such items impair your use of the Software and any Services, you shall remain liable for any applicable payment to the Company for the Software and Services. Upon notice from the Company or any authorized reseller or master licensee, that any such component causes or is likely to cause a hazard, interference with or obstruction of the Services, you shall eliminate, repair or remedy such problematic component promptly, and the Company may disconnect the Software and Services immediately until such elimination, repair or remedy occurs. The Company shall not be responsible: (a) for the installation, operation, management or maintenance of any hardware, software, cabling or services not provided by the Company in connection with the Software and Services; (b) if any changes in the Software and Services cause hardware, software, configurations, cabling or services not provided by the Company to become obsolete or to require modification; (c) if any modification or configuration performed by you impairs the performance of the Software and Services hereunder; or (d) for the performance or availability of third party services or facilities provided hereunder. It is your responsibility to meet all legal and card network requirements and you must first notify the card brands and your credit card processor at least 30 days in advance of beginning to surcharge. For the avoidance of doubt, Company shall not be responsible for your compliance with surcharging your customers or using the surcharge feature. Notification is required before you may surcharge. Limit surcharging to credit cards only (no surcharging debit and prepaid cards). The surcharge amount cannot be more than your average MasterCard/Visa discount rate (calculated historically or based on the previous month) or the maximum surcharge cap. Disclose the surcharge as a merchant fee and clearly alert consumers to the practice at point of store entry, at the point of sale and on the consumers receipt. In an online environment, disclosure needs to be on the first page that references credit card brands. You must provide clear disclosure that you impose a surcharge that is not greater than your applicable merchant discount rate for credit card transactions. Currently, several states have surcharging restrictions. Please consult with your legal counsel to determine whether your practices comply with relevant international, federal, state and local laws, rules and regulations. By entering into this Agreement, You represent that, to the best of your knowledge and belief, your use of the Software and Services does not directly or indirectly infringe the legal or contractual rights of a third party. You further represent and warrant that all information provided by you in connection with its license of this Software and Services is accurate, current and complete.
5. LICENSEE CONDUCT ON THE DUBASKY WEB SITE.
THE DUBASKY Website is to be used solely in connection with your business. While using the DUBASKY Website, or any other website provided or hosted by the Company or its licensors, including but not limited to: dubasky.com, masari.ae, ailexia.com, alsouqalmasry.com, and all other, that the Company of its licensors may create in the future, Licensee may not:
(a) Restrict or inhibit any other user from using and enjoying any Service offered through such site;
(b) Post or retransmit any unlawful or fraudulent, information of any kind in connection with the Software, Services or the Company Websites, including without limitation, any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or foreign law, including without limitation the U.S. export control laws and regulations;
(c) Access any user account apart from the account belonging to Licensee;
(d) Upload or transmit any information or software which contains a virus, trojan horse, worm or other harmful component;
(e) Post, publish, transmit, reproduce, distribute or in any way exploit any information, software or other material obtained through the Service for commercial purposes (other than as expressly permitted by the provider of such information, software or other material);
(f) Post, publish, transmit, reproduce, or distribute in any way information, software or other material obtained through the Service or the Company Website which is protected by copyright, publicity or privacy laws or other proprietary right, or derivative works with respect thereto, without obtaining permission of the copyright owner or other rights holder; or
(g) Upload, post, publish, reproduce, transmit or distribute in any way any component of the Service itself or derivative works with respect thereto, as the Service is copyrighted as a collective work under U.S. copyright laws.
6. NO OBLIGATION TO MONITOR
The Company has no obligation to monitor the Software, Service or Third Party Service available through or in connection with its Software. However, Licensee acknowledges and agrees that the Company has the right to monitor the Software and Service electronically from time to time and to disclose any information as necessary or appropriate to satisfy any law, regulation or other governmental request, to operate the Software and Services properly, or to protect itself or its subscribers. The Company will not intentionally monitor or disclose any private electronic-mail message unless required by law.
7. GENERAL PRACTICES REGARDING USE, STORAGE AND SERVICE ACCESS.
Licensee acknowledges that the Company may establish from time to time general practices and limits concerning use of the Software and Services, in its sole discretion, with or without notice, including without limitation, establishing the maximum amount of storage space Licensee have at any time, as well as limiting the number of times (and the maximum duration for which) Licensee may access the Software and Service in a given period of time. Licensee agrees that the Company has no responsibility or liability for the deletion or failure to store any Content, messages or other communications or transaction information maintained or transmitted by the Software or Services. Licensee understands that all Content, whether publicly posted or privately transmitted, is either your sole responsibility or the responsibility of the person from which such Content originated. This means that Licensee, and not the Company, is entirely responsible for all Content that Licensee uploads or otherwise transmits via the Software and Services. the Company does not control the Content uploaded or otherwise transmitted by Licensee or other Licensees and, as such, does not guarantee the accuracy, integrity or quality of such Content. “Content” means information, data, text (including but not limited to names of files, databases, directories and groups of the same), software, graphics, video, messages or other materials. Licensee therefore acknowledges that it is responsible for periodically backing up or downloading any data or Content that might be available in connection with the Software, and further acknowledges that the Company’s storage and making available of such Content or data is for convenience only, and that the Company shall have no liability in connection with or arising from any damage to, inaccuracies in, or inability of Licensee to access such Content or data, Licensee acknowledges and agrees that the Company shall have access to and may use Licensee’s client data, Licensee’s usage data, and other information for marketing and research purposes, to improve the Software and Services, to produce industry reports, for maintenance and support purposes, to provide Licensee with information regarding the Company’s affiliates or third party services, and further to satisfy any legal obligation that the Company reasonably believes it may have in such connection. You further agree that the Company shall have no obligation to you to retain the Content for more than thirty (30) days after termination of this Agreement, and may withhold providing you with access to Content pending payment by you of any fees or amounts that may be due under this Agreement.
8. FEES AND PAYMENT.
(a) At the outset of this License, there may be no charge to you to use this Software, provided that you adhere to the terms of the License. Notwithstanding the foregoing, in the event that the Company (or any authorized reseller or master licensee) provides written (including email) Sales Order Form to you that fees will be charged in connection with your continued use of the Software or Services, you agree to pay to the Company all fees for the Service or Software you license or use (including any overage fees), in accordance with the pricing and payment terms presented to you in such Sales Order Form. Where fees may be applicable, you will be billed using the billing method you select through your account management interface or as designated by you on a Sales Order Form, or Merchant Application. Payment by you of such fees is an express condition of this license, and non-payment of such fees will result in termination of your access to the Software and Services or unlicensed use, if such use continues. Fees paid by you are non- refundable, except as provided in these Terms or when required by law. In the event that fees are due under this Agreement, if Licensee is delinquent in any such payment on more than two (2) occasions in any twelve-month period, the Company may, upon written notice to Licensee, modify the payment terms to require full payment before the further provision of any Services or require other assurances to secure Licensee’s payment obligations hereunder. Licensee shall furnish financial information to the Company as the Company may, from time to time, reasonably request. Third Party Services, as well as any Services or Software upgrades or modules requested by Licensee may result in fees or other charges in addition to those set forth on the original Sales Order Form. Except as otherwise expressly stated in a particular Sales Order Form for the Services performed thereunder, the Company reserves the right to change the Services it offers to its Licensees generally and the related rates at any time, upon thirty (30) days’ notice. Licensee specifically acknowledges and agrees that it will not attempt to chargeback any fees authorized by it.
(b) Licensee is responsible for any taxes, duties, fees or surcharges that are imposed or authorized by regulatory and governmental entities, including but not limited to sales, use, gross receipts taxes, surcharges, franchise fees, occupational, excise, universal service (state and federal) taxes and surcharges, and shall pay to the Company or reimburse the Company for amounts paid by the Company relating to Services provided to Licensee.
(c) If Licensee’s Service is disconnected due to nonpayment or late payment by Licensee, Licensee shall be responsible for all costs incurred by the Company resulting from such disconnection.
(d) If Licensee Fees are subsidized by third parties and such third parties decline to pay same Licensee shall be responsible for those fees based on the pricing on any applicable sales order form.