END USER LICENSE AGREEMENT
Software End User License Agreement
THIS SOFTWARE END USER LICENSE AGREEMENT (“Agreement”) is a binding, legal agreement between The Service Bureau, L.L.C., a Utah limited liability company (“Licensor”), any undersigned, and the person/entity that has installed the Licensed Software (“Licensee”). Licensee agrees to be bound by the terms and conditions of this Agreement. Licensee further agrees that it has had prior opportunity to evaluate the Licensed Software without charge, and that the Licensed Software meets Licensee’s requirements in all material respects. If Licensee does not agree to be bound by the terms and conditions of this Agreement, Licensee may return the Licensed Software and written material for a refund, less an Eighty and No/100 Dollars ($80.00 USD) setup fee; provided, however, that Licensee must return the Licensed Software (a) within thirty (30) calendar days from the Licensed Software invoice date; (b) prior to being provided the Service Bureau ID; and (c) together with any materials provided to Licensee by Licensor, if any. Licensor and Licensee therefore agree as follows.
1. Protection of Licensed Software.
Licensee acknowledges and agrees that the Licensed Software contains highly confidential, unique, secret, and valuable information belonging to and of Licensor. Licensee shall not provide or otherwise make available the Licensed Software, in any form, to any person or entity (excepting the employees of Licensee and other persons whose access has been approved and granted by Licensor); violation shall be the basis for immediate termination of this Agreement, and any additional remedies available to Licensor as provided by law.
Licensor acknowledges that it will have access to confidential information of the Licensee. Licensor shall not directly or indirectly disclose or use any of Licensee’s confidential information for any purpose other than services provided by Licensor to Licensee in relation to the Licensed Software, as provided for under this Agreement. Licensor will take all appropriate steps to safeguard the information and to protect it against disclosure, espionage, loss, and theft. For purposes of this section, confidential information means personally identifiable information, information belonging to the Licensee that is not generally known or available to the public, and any other information that Licensee treats as confidential.
3. Limited Warranty.
Licensor guarantees that the Licensed Software (a) will perform in accordance with the written manuals for the Term; and (b) does not and will not contain any virus, worm or other feature designed to damage or misappropriate any systems, software, or data. This limited warranty is void if failure of the Licensed Software results from accident, abuse, or misapplication. Should Licensor provide Licensee with a replacement copy of the Licensed Software, such replacement copy of the Licensed Software will be guaranteed for the remainder of the Term. Licensee specifically acknowledges that Licensor provides no warranty that any credit bureau, credit reporting company or collection company will process Licensee’s accounts maintained or generated using the Licensed Software, nor the promptness with which such may be processed. This limited warranty, but not the exclusions and waivers of warranties, shall terminate and become null and void if any modifications are made to the Licensed Software, unless the modifications are made by Licensor.
4. Exclusion of Warranty and Limitation of Remedy.
Except for the limited warranty provided herein, Licensor grants no warranties of any kind or nature, and specifically DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR OF MERCHANTABILITY. The limited warranty is in lieu of all liabilities or obligations of Licensor for damages arising out of or in connection with the delivery, performance or use of the Licensed Software. Licensee agrees that Licensor’s liability to Licensee for damages of whatever kind, shall not exceed the amount paid by Licensee to Licensor for usage of the Licensed Software.
5. Term and Termination.
The usage license granted under this Agreement is for a term of twelve (12) months, said term beginning as of Licensee’s Licensed Software invoice date, and terminating twelve (12) months thereafter (the “Term”). The usage license granted under this Agreement may be renewed on or before expiration of the Term by the Licensee. This Agreement is subject to termination in the instance of (a) a substantial change in Licensee’s capacity to operate its business, including, but not limited to (i) becoming subject to bankruptcy, insolvency or receivership proceedings under state or federal law or (ii) termination or suspension of Licensee’s business; (b) Licensee’s breach of any term or condition of this Agreement; (c) Licensee’s failure to renew the usage license granted under this Agreement upon expiration of the Term; or (d) as otherwise agreed to in writing between the parties. In the event of termination, Licensee shall, within five (5) business days, return all Licensed Software, License Software reproductions, and material provided to Licensee by Licensor, and shall refrain from any use thereof and certify to Licensor in writing that the same has been done. Upon termination, Licensor shall be entitled to retain all payments made by Licensee to Licensor, as partial liquidated damages. Licensor retains all rights to enjoin or restrict Licensee from unauthorized use of the Licensed Software, including Licensor remotely disabling Licensee’s use of the Licensed Software upon termination of this Agreement. Licensee shall be liable for any and all damages resulting from any unauthorized use of the Licensed Software, including attorney fees and court costs. Licensor shall have the right to take immediate possession of the Licensed Software and all copies thereof, wherever located, without further notice or demand. Termination under this paragraph shall not relieve Licensee of its obligations regarding confidentiality of the Licensed Software, which shall survive termination of this Agreement.
6. Contract with Each Credit Bureau.
Licensee shall have a separate written agreement that addresses data reporting and other activities in connection with which Licensee will be using the Licensed Software, with each credit bureau or other company to whom Licensee will be providing data or services.
7. Grant of License.
Excepting the usage license granted Licensee in this Agreement, Licensor owns and retains all right, title, and interest in the Credit Manager 5 Software and the compliance reports generated therein (the “Compliance Reports” or collectively, the “Licensed Software”), and any and all related materials. This Agreement does not transfer ownership rights of any kind in the Licensed Software, or any related materials, to Licensee or any third party. Licensee is granted a limited, nonexclusive and non-transferable license to use one (1) copy of the Licensed Software, operational on only one (1) computer, for the Term. If additional licenses of the Licensed Software have been purchased, then said Licensed Software may be used by additional computers equal to the number of usage licenses that have been granted to Licensee by Licensor. In other words, Licensee agrees that it shall only use the Licensed Software on one (1) computer and that Licensee will purchase additional usage licenses for any and all additional computers which Licensee intends will access and/or use the Licensed Software. Licensee may not install the Licensed Software on a server/computer which is accessible by multiple computers. Licensee may make one (1) back-up copy of the Licensed Software for Licensee’s own use and for use on the one (1) computer, which the Licensed Software is already in use. Licensee may not rent, lease or sell the Licensed Software to any other user. Licensee acknowledges that it must have and maintain an active internet connection for its access to and use of the Licensed Software.
8. Service Bureau ID.
Prior to Licensee’s use of the Licensed Software, user identification (“Service Bureau ID”) will be provided to Licensee by Licensor. The Service Bureau ID must be entered into the designated computer for activation of the Licensed Software. A Service Bureau ID is valid only on the computer designed by Licensee for use of the Licensed Software. Licensee may designate a different computer for usage of the Licensed Software; however, the Service Bureau ID may be transferred only with Licensor’s written approval, and Licensor’s receipt of written acknowledgement by Licensee that Licensee has removed the Licensed Software from the undesignated computer. Licensee agrees that upon activation of the Licensed Software, that should Licensee dispute purchase of the Licensed Software with its credit card provider and/or financial institution, that Licensee shall pay a collection fee of 40% of the contracted principal amount between Licensor and Licensee, in addition to all legal fees and costs, with or without suit, including attorney fees, court costs, and filing fees, incurred by Licensor, in collecting the contracted amount and refuting the dispute.
Licensee agrees that it will not: (1) make additional copies of the Licensed Software, except as provided herein; (2) enable use of the Service Bureau ID by any other person or entity not provided for in this Agreement; (3) provide copies of the Licensed Software to any person or entity not provided for in this Agreement; (4) install the Licensed Software on any computer used by any person or entity who has not purchased the a usage license for the Licensed Software from Licensor; (5) duplicate the Licensed Software by any other means, including electronic transmission; or (6) copy the printed materials or user documentation accompanying the Licensed Software, if any.
10. Intellectual Property.
The Licensed Software in its entirety is protected by copyright laws. As referenced above, the Licensed Software includes the Compliance Reports, which are afforded the same protections. The Licensed Software also contains trade secrets of the Licensor and possibly third parties. Licensee may not decompile, reverse engineer, disassemble, or otherwise reduce to human-perceivable form the Licensed Software, nor disclose such trade secrets, or disable any functionality that limits the use of the Licensed Software. Licensee may not attempt to modify, adapt, translate, rent, sublicense, assign, loan, resell for profit, distribute or network the Licensed Software, related materials, or create derivative works based upon the Licensed Software, or any part thereof. Licensee shall not provide access to the Licensed Software to any party not subject to this Agreement without first obtaining written consent of the Licensor. Should any party not subject to this Agreement be granted access to the Licensed Software by Licensee, Licensee shall be liable for breach, and Licensor shall have discretion to immediately terminate this Agreement.
Licensee may uninstall the Licensed Software at any time, by using the uninstall feature in the Licensed Software and the standard uninstall procedures as offered with Licensee’s computer's operating system.
To provide updates to the Licensed Software, maintain current contact information between the parties, and to track for any unauthorized use of the Licensed Software, Licensor may from time to time access and collect basic company information from Licensee, to be securely stored by Licensor as part of its records for the duration of this Agreement.
13. Financial Agreement.
An annual finance charge of 19.99% or Twenty and No/100 Dollars ($20.00 USD), whichever is greater, will be added to the Licensee’s account each month on the unpaid principal. Should it be necessary to assign the account to a collection agency, Licensee or the responsible party agrees to pay a collection fee of 40% of the total unpaid principal, and all legal fees of collection, with or without suit, including attorney fees, court costs, and filing fees. As referenced in this Agreement, should Licensee activate the Licensed Software, then dispute purchase of the Licensed Software with its credit card provider and/or financial institution, that Licensee shall pay a collection fee of 40% of the contracted principal amount between Licensor and Licensee, in addition to all legal fees and costs, with or without suit, including attorney fees, court costs, and filing fees, incurred by Licensor, in collecting the contracted amount and refuting the dispute.
14. Licensed Software Support.
Licensor, and only the Licensor, provides support regarding the Licensed Software (“Licensed Software Support”). However, Licensor does not provide support regarding hardware, operating systems, security, database administrations, networking, web sites, or any other software that is not the Licensed Software. One (1) hour of Licensed Software Support, per month (hours do not carry over from month to month, nor do they accrue), will be provided at no cost to the Licensee for the duration of the Term; however, data recovery, password recovery, database analysis, tradeline research or support for data imports, Metro 2 training, software retraining or issues deemed by Licensor to be outside the scope of Licensed Software Support, are not included, and will be billed on an hourly basis as described hereafter. Licensed Software Support in excess of one (1) hour in a month, and any other type of support, shall be billed in fifteen (15) minute increments, with a minimum billing of thirty (30) minutes per support call, at the hourly rate in effect at the time of said support call (rates are USD) per hour, or ( USD) per fifteen (15) minutes, and are subject to modification by Licensor at any time without prior notice to Licensee). The Licensed Software Support and any other support provided by Licensor is not legal advice. Licensor shall not be liable to Licensee for any damages incurred as a result of the Licensed Software Support, or any other support provided by Licensor. Licensee acknowledges that the Licensed Software Support, and any other support provided by Licensor, may not be in accord with the credit bureaus and/or the Consumer Data Industry Association (“CDIA”) concerning credit reporting scenarios, and in these instances, the Licensor gives deference to the credit bureaus and the CDIA. Licensor reserves the right to terminate the Licensed Software Support, and any other support it provides Licensee, should Licensee, its employees, agents, or any other person so designated, mistreat or abuse Licensor, its employees, agents, support staff, or any other person so designated, without notice to Licensee, and at Licensor’s complete discretion. Minor updates to the Licensed Software are provided at no charge to the Licensee. Major updates to the Licensed Software may be purchased by Licensee at a discounted price—discounted price to be determined by Licensor, when an update is available. Licensee agrees that it shall be responsible for its data backups. Any data breach or lost data incurred by Licensee, due to a computer crash, system crash, hacking, or any other cause, is the sole responsibility of the Licensee, and in no way shall Licensor be liable for any harm or damages resulting therefrom. The Credit Manager 5 Software will maintain an encrypted, password protected data file, contained in Licensee’s data, on the designated computer which the Licensed Software is installed and activated; however, Licensor does not guarantee this protection, and Licensee agrees that securing Licensee’s data is the sole responsibility and liability of the Licensee. Metro 2 is implemented in the Credit Manager 5 Software. Metro 2 is a data specification, created by the CDIA, which is used to report data entered by Licensee to major credit bureaus electronically and in a standardized format. Licensee shall not manually modify, revise, or alter the Metro 2 file prior to its upload to the credit bureaus. In the instance Licensee modifies, revises, or alters the Metro 2 file prior to its upload to the credit bureaus, Licensor shall have discretion to immediately terminate this Agreement.
Licensee agrees to defend, indemnify, save, and hold Licensor harmless of, and from all fault, damage, liability, loss, or expense, including, without limitation, attorney fees and court costs, that Licensor may incur as a result of Licensee’s improper use (whether intentional or negligent) of the Licensed Software, including, without limitation, the erroneous inclusion or exclusion of data, or misrepresentation of information while using the Licensed Software; provided, however, that each party shall be responsible for its own acts and omissions. Without limiting the foregoing, Licensee agrees to pay to Licensor all losses and expenses incurred by Licensor which Licensee’s indemnity hereunder is applicable within ten (10) calendar days after written demand is made by Licensor to Licensee. Licensee further agrees that Licensor shall have complete discretion and authority in the negotiation, settlement, payment, and litigation of any and all matters to which this Agreement is applicable, including, without limitation, the right to select and employ counsel of its choosing when in Licensor’s sole discretion deems necessary or appropriate, for the purposes of investigation, negotiation, settlement, and litigation of any matters hereunder, and Licensee agrees to be bound thereby. Licensee agrees to pay to Licensor any and all attorney fees, court costs, and other expenses incurred by Licensor in the enforcement of this Agreement and the indemnification provided herein.
16. Entire Agreement.
This Agreement constitutes the sole and entire agreement between the parties with respect to the Agreement’s subject matter. This Agreement supersedes all prior and contemporaneous understandings, agreements, representations, and warranties—both written and oral—with respect to the subject matter.
No provision of this Agreement may be amended or modified except by a written instrument executed by all parties to this Agreement.
Failure of either party hereto to enforce at any time any term of this Agreement shall not be a waiver of that party's right thereafter to enforce each and every term of this Agreement.
19. Governing law, jurisdiction, and venue.
All questions with respect to the construction of this Agreement and the rights and liabilities of the parties hereto shall be governed by the laws of the State of Utah. In the event of litigation regarding the terms and conditions of this Agreement or the performance of the parties hereunder, Licensee hereby consents to the personal jurisdiction of the courts of the State of Utah, and agrees that the exclusive jurisdiction for, and the only proper venue of, any action or suit pertaining to the subject matter of this Agreement, shall be in state or federal courts in the State of Utah.
20. No Presumption against Drafting Party.
This Agreement is to be construed without giving force to any presumption or rule requiring construction or interpretation against the drafting party.
21. Facsimile Transmission.
A signed facsimile transmission of this Agreement and re-transmission of any signed facsimile transmission, shall be the same as execution and delivery of this Agreement as an original. If the transaction involves multiple parties, facsimile transmission may be executed in counterparts.
22. Multiple Originals; Validity of Copies.
This Agreement may be signed in any number of counterparts, each of which will be deemed an original. Any person may rely on a copy of this Agreement that any party to this Agreement certifies to be a true copy to the same effect as if it were an original.