On-Premises VersionThis License Agreement (“Agreement”) is made between Checkbox Technology, Inc., its affiliates and subsidiaries (collectively “Checkbox”), with its principal address at PO Box 470697, San Francisco, CA 94147 USA and the Customer (as defined below).
This Agreement, inclusive of any attached Schedule(s), is effective on the date the Customer signs the Agreement or electronically clicks “Agree and Download” and thereby agrees to the terms of this Agreement (the “Effective Date”).
BY DOWNLOADING OR INSTALLING THE SOFTWARE, CUSTOMER ACKNOWLEDGES THAT HE/SHE HAS READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, UNDERSTANDS THEM, AND AGREES TO BE BOUND BY THEM. CUSTOMER UNDERSTANDS THAT, IF THE LICENSE TO THE SOFTWARE WAS PURCHASED FROM AN AUTHORIZED RESELLER OF CHECKBOX, THAT RESELLER IS NOT CHECKBOX’S AGENT AND IS NOT AUTHORIZED TO MAKE ANY REPRESENTATIONS, CONDITIONS OR WARRANTIES, STATUTORY OR OTHERWISE, ON CHECKBOX’S BEHALF OR TO VARY ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT.
1. DEFINITIONS: The following definitions will apply:
1.1. “Customer” means the legal entity or individual that agrees to the terms of this Agreement. The individual who physically signs or electronically agrees to this Agreement represents and warrants that he/she has the legal authority to agree to the terms and conditions contained herein.
1.2. “Software” means Checkbox Survey Software, in Source Code and Object Code, including, as applicable, executable and non-executable application files that Customer may download or receive on electronic media.
1.3. “Documentation” means any written materials supplied by Checkbox, either in print or digital format, to be used in conjunction with the Software for purposes including, but not limited to, installation, training, and demonstration of the Software.
1.4. “Licensed User” means one of Customer’s employees, representatives, consultants, contractors, agents or other persons expressly permitted by Customer in connection with Customer’s business affairs who are authorized to use the Software and have been supplied user identifications and passwords by Customer (or by Checkbox at Customer’s request).
1.5. “Third Party” means any person or organization who is not an employee, representative, consultant, contractor, agent, or other person expressly designated by Customer to conduct business on Customer’s behalf.
1.6. “Derivative Work” means any work derived from the Software or in which the Software is an integrated component, and which derivation was created or developed, at the expense of, or on the initiative of Customer. Derivative Works may include but are not limited to software applications, cloud-based (Software as a Service) applications, or online portals that integrate with the Software.
1.7. “Software Update Release” means an embodiment of the Software that delivers minor performance improvements or enhancements of existing features and/or functionality to the Software.
1.8. “Software Upgrade Release” means an embodiment of the Software that delivers substantial performance improvements, architectural changes or new features and/or functionality to the Software, for which Checkbox may charge a separate license fee.
1.9. “Support Services” means the services provided by Checkbox including Software support and maintenance and Software Update Releases and for which Customer pays a separate annual support fee.
2. LIMITED LICENSE
2.1. Subject to Customer’s compliance with the terms and restrictions contained herein, Customer is entitled to use this Software for Customer’s own internal business use, but may not sell, transfer, rent, or sub-license the Software, Documentation, or Derivative Work to any Third Party in any way. Customer may not grant any Third Party access to any administrative functions of the Software including, but not limited to, survey creation and editing, report creation and editing, user management functions, and system administrative functions.
2.2. Customer may use one copy (instance) of the Software on a single server or single web farm environment for production purposes and one copy of the Software on a single server or single web farm environment for testing and/or development purposes (Enterprise-level license needed to support web farm environments). Customer may use additional copies of the Software on additional servers or web farm environments only if agreed to in writing by Checkbox and only if all applicable license fees have been paid.
3. LICENSE PURCHASE: Customer has agreed to purchase the number of software licenses as specified through an ordering document (“Ordering Form”). Customer has further agreed to pay all fees specified thereon within thirty (30) days from the date of such Ordering Form.
4. OWNERSHIP; COPYRIGHT: Title to the Software and the Documentation, including Derivative Works thereof, and patents, copyrights and all other property rights applicable thereto, shall at all times remain solely and exclusively with Checkbox, and Customer shall not take any action inconsistent with such title. The Software and the Documentation are protected by United States and international laws, rules, regulations and treaty provisions. Any rights not expressly granted herein are reserved by Checkbox.
5. RESTRICTIONS OF USE: Customer may not license, sublicense, rent, resell, lease or otherwise supply the Software, Documentation or Derivative Works for use in, or for the benefit of, any Third Party, without the prior written consent of Checkbox. Customer may not modify, enhance, supplement, adapt, translate, reverse engineer, decompile, disassemble or otherwise reduce the Software to human readable form. Customer will not use or access the Software to: (i) build a competitive product or service, (ii) make or have made a product using similar ideas, features, functions or graphics of the Software, (iii) make Derivative Works based upon the Software, except for Customer’s own internal business use (iv) copy any features, functions or graphics of the Software. Use, resale or exploitation of the Software except as expressly permitted in this Agreement is prohibited.
6. SUPPORT SERVICES: If Customer has purchased Support Services or if any Software license purchased by the Customer includes Support Services, Customer agrees that those Support Services are bound by the Checkbox Terms of Support, the current version of which is attached as Appendix A.
7. SOURCE CODE AND SOFTWARE DEVELOPER KIT: If Customer has purchased the Checkbox Source Code or Software Developer Kit (SDK) or has purchased any Checkbox Software License package that includes the Source Code or SDK, Customer acknowledges that use of the Source Code or SDK is bound by the terms of this Agreement. Customer further acknowledges that purchase of the Source Code or SDK entitles Customer to Software Update Releases to the Source Code or SDK, as they are publicly available. Checkbox makes no warranty as to the availability, number or frequency of said releases. Purchase of the Source Code or SDK does not entitle Customer to Software Upgrade releases of the Source Code or SDK.
8. CONFIDENTIALITY: Customer acknowledges and agrees that the Software and associated Documentation constitute valuable proprietary and confidential information and intellectual property (collectively, the “Proprietary Information”) of Checkbox and its licensors. Customer may not use or disclose the Proprietary Information without Checkbox’s prior written consent, except disclosure to and subsequent uses by Customer’s employees and contractors who have a need-to-know, provided such employees and contractors have executed written agreements restricting use or disclosure of Proprietary Information that are at least as protective as those set forth in this Agreement. Customer agrees to use at least the same degree of care in protecting the Proprietary Information as Customer uses to protect Customer’s own similar information, but in no event less than reasonable care. Customer acknowledges that due to the unique nature of the Proprietary Information, Checkbox will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Proprietary Information. In addition to any other remedies that may be available in law, in equity, or otherwise, Checkbox shall be entitled to obtain injunctive relief to prevent such unauthorized use or disclosure. Customer shall not use any information or data disclosed by Checkbox in connection with this Agreement to contest the validity of any Checkbox intellectual property. Any such use of Checkbox information and data shall constitute a material, non-curable breach of this Agreement.
9.LIMITED WARRANTY: Checkbox warrants for a period of ninety (90) days following original purchase of this copy of the Software that the Software will perform substantially in accordance the Documentation. Customer must report a breach of the foregoing warranty during the warranty period. In the event of breach of this limited warranty, Checkbox will use commercially reasonable efforts to repair the Software or replace it with software of substantially similar functionality. This limited warranty: (i) applies to the initial purchaser only and may be acted upon only by the initial purchaser; and (ii) does not apply to any patch, update, upgrade, modification, or other enhancement provided by Checkbox under a separate maintenance agreement with respect to the Software or the Documentation provided by Checkbox which are provided on an AS IS BASIS ONLY. Checkbox does not warrant that the Software will meet Customer’s specific requirements or that operation of the Software will be uninterrupted or error-free. Checkbox is not responsible for any problem, including any problem which would otherwise be a breach of warranty, caused by (i) modifications to the Software by parties other than Checkbox, (ii) changes in the operating characteristics of computer hardware or computer operating systems, (iii) interaction of the Software with hardware or software not supplied or approved by Checkbox, or (iv) accident, abuse, virus or misapplication. EXCEPT AS STATED ABOVE, CHECKBOX AND ITS LICENSORS MAKE NO OTHER WARRANTY OR CONDITION, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THIS SOFTWARE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. THIS SECTION SETS FORTH CHECKBOX’S SOLE LIABILITY AND CUSTOMER’S SOLE REMEDY FOR BREACH OF THE LIMITED WARRANTY
10. LIMITATION OF LIABILITY: IN NO EVENT WILL CHECKBOX’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AGGREGATE OF FEES PAYABLE TO CHECKBOX PURSUANT TO THIS AGREEMENT (INCLUDING FEES BOTH PAID AND DUE) AT THE TIME OF THE EVENT GIVING RISE TO THE LIABILITY; AND (ii) IN NO EVENT WILL CHECKBOX BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES. THE LIABILITIES LIMITED BY THIS SECTION APPLY: (A) TO LIABILITY FOR NEGLIGENCE; (B) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (C) EVEN IF CHECKBOX IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (D) EVEN IF REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this section, Checkbox’s liability will be limited to the maximum extent permissible.
11. TERMINATION: Without prejudice to any other rights, Checkbox may terminate this license if Customer fails to comply with the terms and conditions of this License. In such event, Customer must destroy all copies of the Software and Documentation and all of its component parts.
12. GENERAL: This Agreement constitutes the entire understanding between Checkbox and Customer with respect to subject matter hereof. Any change to this Agreement must be in writing, signed by Checkbox and Customer. Terms and conditions as set forth in any purchase order which differ from, conflict with, or are not included in this Agreement or the Ordering Form, shall not become part of this Agreement unless specifically accepted by Customer in writing. Customer shall be responsible for and shall pay, and shall reimburse Checkbox on request if Checkbox is required to pay, any sales, use, value added (VAT), consumption or other tax (excluding any tax that is based on Checkbox’s net income), assessment, duty, tariff, or other fee or charge of any kind or nature that is levied or imposed by any governmental authority on the Package.
13. AMENDMENT. This Agreement may not be modified except (i) by authorized representatives of each party and (ii) in a written contract signed by both parties.
14. ASSIGNMENT AND SUCCESSORS. This Agreement may not be assigned by Customer without the prior written approval of Vendor but may be assigned by Vendor to (i) a parent or subsidiary, (ii) an acquirer of all or substantially all of Vendor’s assets involved in the operations relevant to this Agreement, or (iii) a successor by merger or other combination. Any purported assignment in violation of this Section will be void. This agreement may be enforced by and is binding on permitted successors and assigns.
15. EXPORT AND IMPORT COMPLIANCE: In the event Customer exports the Software or the Documentation outside of the United States, Customer assumes the responsibility for compliance with all applicable import, export and re-export regulations, as the case may be.
17. PUBLICITY: Customer consents to the use of its company name and/or logo on Vendor website or in Vendor advertising or promotional literature, provided that such advertising and promotional literature only refers to Customer as a customer of Vendor.
18. GOVERNMENT RESTRICTED RIGHTS: The Software and Documentation are “commercial computer software” or “commercial computer software documentation.” Absent a written agreement to the contrary, the U.S. Government’s rights with respect to such Software or Documentation are limited by the terms of this Agreement, pursuant to FAR 12.212(a) and/or DFARS 227.7202-1(a), as applicable.
19. GOVERNING LAW; ARBITRATION: This Agreement shall be governed by and construed under the laws of the Commonwealth of Massachusetts, U.S.A., excluding (a) its conflicts of laws principles; (b) the United Nations Convention on Contracts for the International Sale of Goods; (c) the 1974 Convention on the Limitation Period in the International Sale of Goods (the “1974 Convention”); and (d) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980. The parties agree to the exclusive jurisdiction of the courts of Massachusetts.PLEASE DIRECT ALL INQUIRES TO:Checkbox Technology, Inc.PO Box 470697San Francisco, CA 94147Tel: 617-231-8890Fax: email@example.com Appendix ACheckbox Technology, Inc. Terms of SupportThe following sets forth the terms of the agreement (the “Agreement”) by which Checkbox Technology, Inc. a Delaware corporation with its principal place of business at PO Box 470697, San Francisco, CA 94147 (“Checkbox”) will provide Support Services (as defined below) for its Checkbox Survey Software product (the “Software”) which is licensed by the Customer (as defined below) pursuant to Checkbox’s Software License Agreement (“License Agreement”). Except where superseded by this Agreement, all other terms and conditions of the License Agreement are incorporated by reference. Capitalized terms that are not contained herein have the same meaning as in the License Agreement.
1.1. “Bug” means a technical aspect or functionality of the Software that does not execute as outlined in the Documentation. Unexpected behavior isolated to Customer’s specific configuration or environment does not constitute a Bug. Support Incident is recognized as a Bug only after it has been reproduced in steps provided by Customer and has been confirmed by a Checkbox Support Engineer.
1.2. “Bug Fix Release” means an embodiment of the Software that is released by Checkbox in order to correct Errors.
1.3. “Designated Support Contact” means Customer’s employee who is authorized to contact Checkbox’s support center.
1.4. “Error” means a defect that causes the Software not to perform substantially in accordance with the specifications set forth in Checkbox’s Documentation.
1.5. “Installation” means the process in which the Software installation program is extracted from a CD, diskette, downloaded executable, or network drive onto a single computer’s hard drive, and the setup program is run to completion in accordance with the authorized installation instructions. A completed installation is determined by the successful first run of the Software. This does not include configuration of other applications required by the Software, including, but not limited to Microsoft Windows, Microsoft IIS, SMTP, Microsoft SQL Server, firewalls, or networking components.
1.6. “Previous Sequential Release” means the embodiment of the Software that has been replaced by a subsequent release, which may include a Bug Fix Release, Software Update Release or Software Upgrade Release.1.7. “Software Update Release” means an embodiment of the Software that delivers minor performance improvements or enhancements of existing features and/or functionality to the Software.
1.8. “Software Upgrade Release” means an embodiment of the Software that delivers substantial performance improvements, architectural changes or new features and/or functionality to the Software, for which Checkbox may charge a separate license fee.
1.9. “Support Services” means the Software support services that are purchased by Customer, as described on the Checkbox web site. Support Services are optional and purchased separately with the purchase of the Checkbox Survey Server edition and are included with the purchase of the Checkbox Survey Online edition. Purchase terms and conditions are included on the Ordering Form.
1.10. “Support Incident” means an issue requiring Support Services that focuses on one aspect of the Software – e.g. use of a specific feature of the Software or assistance with a specific problem or error message. While this single issue may involve other aspects of the Software, addressing other aspects constitutes a separate issue and a separate Support Incident. A single Support Incident may involve multiple phone calls, emails and off-line research. Checkbox Support Engineers are responsible for determining what characterizes a single Support Incident and communicating same to Customer.
2. SUPPORT SERVICES
Checkbox will provide the Support Services listed herein upon payment of the applicable fees by Customer and pursuant to the terms and conditions of this Agreement.
2.1. Support Center: The Checkbox Support Center is available to Customer and will be staffed by Checkbox Support Engineers Monday through Friday from 9:00 AM to 5:00 PM US Eastern Time, except for recognized Checkbox holidays. Checkbox holidays will be posted in advance on the Checkbox website (/news). The Support Center can be contacted by opening an online support ticket (at /login) or by telephone at 617-231-8890. During non-working hours, Customer may leave a telephone voicemail with the Support Center or open an online support ticket and the support incident will be reviewed at the start of the next working day. Checkbox will make commercially reasonable efforts to respond to online support inquires and telephone voicemails within 1 business day.
2.2. Support Protocols: Incoming calls or online support tickets to the Checkbox Support Center are routed to a Checkbox Support Engineer who will assess the nature of the Support Incident and either answer the question or schedule return communication, based on the Support Engineer’s assessment of the priority of the incident (below) and the current load of open support tickets. Support Incidents are classified by the Checkbox Support Engineer into one of the following categories, listed in order of priority:High: Bug/Error – A potential Bug or Error is preventing Customer from utilizing the Software in accordance with the Documentation.Mid 1: Installation – Questions about Installation.Mid 2: Training – Questions regarding Software usage and Documentation.Low: Enhancement – Functionality not currently available within the Software.
2.3. Customer Obligations: In order for Customer to receive the Support Services Customer must:
a. Register client(s) and web server(s) with Checkbox’s account representative.
b. Appoint Designated Support Contact(s) who will maintain the integrity of the Software and who will act as Customer’s liaison for all technical communications with Checkbox. Name(s) of Designated Support Contact(s) must be provided to Checkbox prior to initial contact with the Checkbox Support Center. All support communications (whether by telephone or online support ticket) by Customer to Checkbox shall only be made by the Designated Support Contact(s). All information and materials provided to Customer by Checkbox pursuant to this Agreement will be routed to the Designated Support Contact(s). Customer may change the Designated Support Contact(s) upon written notice to Checkbox.
c. Subject to Customer’s applicable security requirements, provide Checkbox with access to and use of all information and system facilities determined necessary by Checkbox to provide timely Support Services pursuant to this Agreement.
d. Follow procedures and recommendations provided by the Checkbox Support Center in an effort to correct problems, including sending files and data requested by Checkbox Support.
e. To the best of its abilities, read, comprehend and follow operating instructions and procedures as specified in, but not limited to, the Documentation and other correspondence related to the Software.
f. Notify Checkbox of a potential “Bug”, “Error”, malfunction or other problems in accordance with Checkbox’s then current problem reporting procedure. If Checkbox believes that a problem reported by Customer may not be due to a Bug or Error, Checkbox will so notify Customer.
2.4. Exclusions: Checkbox shall have no obligation to support:
a. Altered, damaged or Customer-modified Software, or any portion of the Software incorporated with or into any other software or product;
b. Any version of the Software other than the current version of the Software or immediately Previous Sequential Release;
c. Software incidents caused by Customer’s negligence, abuse, misapplication or use of the Software other than as specified in the Documentation, or other problems beyond the reasonable control of Checkbox; or
d. Software installed on any hardware, operating system version or network environment that is not supported by Checkbox;
e. Questions related to modifications to the product;
f. Configuration of other applications required by the Checkbox application, including, but not limited to Microsoft Windows, Microsoft IIS, SMTP, Microsoft SQL Server, firewalls, or networking components.
g. Customers needing general training. Training services may be purchased separately or Customer may take advantage of Checkbox support documentation located at /support/.
3. TERM AND TERMINATION3.1. Term: The initial term of this Agreement is one (1) year from the date of purchase, unless terminated earlier in accordance with the terms of this Agreement.
3.2. Termination: Checkbox may suspend or terminate Support Services to Customer if Customer fails to pay Support Service fees as provided in this Agreement in full and by the due date listed on Customer’s invoice, or breaches any provision of this Agreement or the License Agreement, and such failure or breach is not remedied within thirty (30) days after Customer receives written notice thereof. Support Services shall automatically terminate upon termination of the License Agreement.
3.3. Reinstatement: If Support Services are terminated for any reason, Customer may reinstate or renew Support Services (at Checkbox’s sole option) by paying Checkbox all applicable intermediate and reinstatement Support Services fees.
4. LIMITED WARRANTYCheckbox warrants that Support Services will be performed with the same degree of skill and professionalism as is demonstrated by like professionals performing services of a similar nature. Checkbox shall use commercially reasonable efforts to resolve each Support Incident but Checkbox does not warrant that every Support Incident will be resolved. Fees will not be refunded if the Support Incident is not resolved.EXCEPT FOR THE FOREGOING EXPRESS LIMITED WARRANTY, THE SUPPORT SERVICES ARE PROVIDED “AS IS”, AND CHECKBOX MAKES NO OTHER WARRANTIES EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SUPPORT SERVICES. CHECKBOX SPECIFICALLY DISCLAIMS ANY IMPLIED* WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. Checkbox disclaims any and all implied warranties except where those exclusions are prohibited by law. Checkbox customers should consult the laws of their jurisdiction for clarification.
5. LIMITATION OF LIABILITY5.1. Direct Damages: CHECKBOX’S SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR DAMAGES WITH RESPECT TO THE SUPPORT SERVICES UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, SHALL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER FOR THE SUPPORT SERVICES UNDER THIS AGREEMENT.
5.2. Consequential Damages: UNDER NO CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION NEGLIGENCE, SHALL CHECKBOX BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY PUNITIVE OR MULTIPLE DAMAGES OR FOR DAMAGES FOR LOST PROFITS OR LOSS OF DATA, ARISING IN ANY WAY OUT OF THIS AGREEMENT OR THE SERVICES PROVIDED.
6. ADDITIONAL NOTES6.1. High Priority Service: Support customers have the option to purchase High Priority Service for any single Incident, with the exception of enhancement requests. Upon receipt of applicable fees, Checkbox will classify Customer’s issue, bug, or error as ‘High’ priority, move it to the front of the support queue, and accordingly expedite a solution for the bug, error, or issue. Purchase of a High Priority Service item does not guarantee that the bug, error, or issue will be resolved, though Checkbox will make every reasonable effort to resolve the incident.
6.2. Online Documentation: All users have access to Checkbox’s online documentation and training videos, found at /support/. These resources contain answers to commonly asked questions and issues. Checkbox highly recommends that users access on-line documentation and training resources prior to contacting the Support Center.
6.3. Professional Services: Customers needing additional services or training that fall outside the scope of Checkbox’s Support Services may purchase Checkbox professional services on an hourly or project basis (exclusions, limitations, and project minimums may apply). Please contact Checkbox Sales for more information and pricing.
6.4. Software Training: Customers needing training services may purchase webinar-based Checkbox training on an hourly or daily basis (exclusions, limitations, and project minimums may apply). Please contact Checkbox sales for more information and pricing.