LAST MODIFIED APRIL 1, 2017
Article 1. LICENSE.
IMPORTANT: J & J Management a/k/a POOLTRAC (“POOLTRAC”) GRANTS TO YOU A LICENSE TO USE THE SOFTWARE AND RELATED DOCUMENTS ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS LICENSE AGREEMENT. BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU AND THE BUSINESS ENTITY THAT YOU REPRESENT (TOGETHER, THE “CUSTOMER”), AGREE TO BE BOUND TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN POOLTRAC DOES NOT AGREE TO LICENSE THE SOFTWARE TO YOU AND YOU MAY NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE, AND YOU MAY RETURN THE SOFTWARE FOR A FULL REFUND. YOUR RIGHT TO RETURN AND REFUND EXPIRES 30 DAYS AFTER FIRST PURCHASE/ACCESS FROM PYTLE’S POOLS OR AN AUTHORIZED DISTRIBUTOR OF THE SOFTWARE, AND APPLIES ONLY IF YOU ARE THE ORIGINAL END USER PURCHASER OF THE SOFTWARE.
Article 2. LIMITATIONS.
Article 3. PAYMENT.
This is a license, not a transfer of title, to the Software and Related Documents; PoolTrac retains complete ownership of all copies of the Software and Related Documents, the trade secrets therein, and the copyrights thereto. Customer acknowledges and agrees that the Software and Related Documents contain trade secrets of PoolTrac. Accordingly, Customer shall have no right, and Customer specifically agrees not to:
(a) transfer, assign, sublicense its license rights to any other person or entity, or use the Software, and Customer agrees that any attempted transfer, assignment, sublicense or use shall be void;
(b) modify, adapt, or otherwise change the Software or create derivative works based upon the Software, or permit third parties to do the same;
(c) reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software to human-readable form, except to the extent otherwise expressly authorized by applicable law, or permit third parties to do the same;
(d) use the Software for any purpose other than for internal business purposes;
(e) use or allow use of the Software and Related Documents for or by any third party; and
(f) disclose, provide, or otherwise make available the Software, Related Documents, or the trade secrets contained within the Software and Related Documents in any form to any third party. Additionally, Customer shall implement reasonable security measures to protect such trade secrets.
Article 4. REVISIONS AND ERRATA.
By accessing PoolTrac, you represent and warrant that you are authorized to use the designated payment card and authorize PoolTrac to charge your account to that card. Regarding your account, you agree to keep all information current. We may submit charges for processing even if the card has expired or changed by the time we submit it. Therefore, it is your responsibility to resolve any problem we encounter in order to proceed with your account.
Article 5. REGISTRATION, PASSWORDS, AND LOGIN INFORMATION.
The materials appearing on PoolTrac's web site could include errors and omissions, including, but not limited technical, typographical, or photographic errors and omissions. PoolTrac does not warrant that any of the content available through the Software or Related Documents are accurate, complete, or current. PoolTrac may make changes to the content contained on the Software or Related Documents at any time without notice. PoolTrac does not, however, have any obligation to update the content.
Article 6. LINKS.
We may require that you create an account to use or access certain parts of the Software and or certain products and features. We may require that you provide login information such as a username and password to access and utilize your account. As a condition of your use of the Software, you agree to (a) provide PoolTrac with true, accurate, current and complete information as prompted by PoolTrac’s registration forms, when registering for or using the Software and (b) update and maintain the truthfulness, accuracy, and completeness of such information. You are responsible for maintaining the confidentiality of any password or other account information not generally available to others and are fully responsible for all activities that occur under your username and password.
Article 7. PROPRIETARY NOTICES.
PoolTrac has not reviewed all of the sites linked to its Internet web site and is not responsible for the contents of any such linked site. The inclusion of any link does not imply endorsement by PoolTrac of the site. Use of any such linked web site is at the user's own risk.
Article 8. OTHER AGREEMENTS.
Customer agrees to maintain and reproduce all copyright, proprietary notices, or copyright protection systems on all copies, in any form, of the Software and Related Documents in the same form and manner that such copyright and other proprietary notices are included on the Software.
Article 9. USE OF THE POOLTRAC WITH APPLE® DEVICES.
The terms of this Agreement represent the entire agreement between the parties regarding Customer's access and use of the Software, except to the extent there is a separate written agreement executed by Customer and PoolTrac governing Customer's use of the Software. To the extent of a conflict between the provisions any other executed agreements between the parties, the executed agreement shall have precedence over this Agreement.
Article 10. TERM AND TERMINATION.
Article 11. DISCLAIMER OF WARRANTY.
This Agreement and the license granted herein shall remain effective until terminated. Either party may terminate this Agreement and the license at any time for any reason or no reason at any time by providing fifteen (15) day notice. Customer's rights under this Agreement terminate immediately without notice from PoolTrac upon failure of Customer to comply with any provision of this Agreement, including payment of fees due to PoolTrac. Upon termination, Customer shall no longer have the right to access or use the Software and Related Documents. Furthermore, upon termination, PoolTrac shall not be obligated to provide Customer with access to any information, data, or content submitted to PoolTrac by Customer. All confidentiality obligations of Customer and all limitations of liability and disclaimers and restrictions of warranty shall survive termination of this Agreement.
Article 12. DISCLAIMER OF LIABILITIES.
Subject to any limitations and conditions set forth herein, the Software and Related Documents are provided “AS IS.” PoolTrac makes no warranties, expressed or implied, and hereby disclaims and negates all other warranties, including without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement of intellectual property or other violation of rights. Furthermore, PoolTrac does not warrant or make any representations concerning the accuracy, likely results, or reliability of the use of the materials on its Internet web site or otherwise relating to such materials or on any sites linked to this site. In no event shall PoolTrac or its suppliers be liable for any damages (including, without limitation, damages for loss of data or profit, or due to business interruption,) arising out of the use or inability to use the materials on PoolTrac's Internet site, even if PoolTrac or a PoolTrac authorized representative has been notified orally or in writing of the possibility of such damage. Because some jurisdictions do not allow limitations on implied warranties, or limitations of liability for consequential or incidental damages, these limitations may not apply to you.
EXCEPT AS SPECIFIED IN THIS WARRANTY, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, NON-INTERFERENCE, ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW AND ARE EXPRESSLY DISCLAIMED BY POOLTRAC. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. THIS LIMITATION APPLIES ONLY IN STATES OR JURISDICTIONS WHICH ALLOW EXCLUSION OF EXPRESS WARRANTIES.
REGARDLESS WHETHER ANY REMEDY SET FORTH HEREIN FAILS ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL POOLTRAC OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR LOST OR DAMAGED DATA, BUSINESS INTERRUPTION, LOSS OF CAPITAL, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER ARISING OUT OF THE USE OF OR INABILITY TO USE SOFTWARE OR OTHERWISE AND EVEN IF POOLTRAC OR ITS SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall PoolTrac’s liability to Customer, whether in contract, tort (including negligence), breach of warranty, or otherwise, exceed the price paid by Customer for the Software. THIS LIMITATION APPLIES ONLY IN STATES OR JURISDICTIONS WHICH ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES.
Customer agrees that the limitations of liability and disclaimers set forth herein will apply regardless of whether Customer has accepted the Software or any other equipment or service delivered by PoolTrac or otherwise obtained by Customer. Customer acknowledges and agrees that PoolTrac has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.
Regardless of the place of execution, delivery, performance or any other aspect of this Agreement, The Warranty, this Agreement, and all of the rights of the parties under this Agreement shall be governed by, construed under and enforced in accordance with the substantive law of the State of Indiana without regard to conflict of laws principles. The exclusive jurisdiction for any litigation required to resolve any disputes under this Agreement shall be in the courts of Indiana, and each of the parties consents to the jurisdiction of such courts in Indiana and waives objection to personal jurisdiction or venue laid therein.
The United Nations Convention on the International Sale of Goods shall not apply. If any portion hereof is found to be void or unenforceable, the remaining provisions of the Agreement shall remain in full force and effect. Except as expressly provided herein, this Agreement constitutes the entire agreement between the parties with respect to the license of the Software and Related Documents and supersedes any conflicting or additional terms contained in any purchase order or elsewhere, all of which terms are excluded, unless expressly allowed by the terms of this Agreement.