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Term of Service and Agreement

our term of service and agreement.

LICENSE AGREEMENT

ETCCAFE CO., LTD
Software License Agreement
(Ugetweb Ecommerce Shopping Cart)

ETCCAFE CO., LTD. SOFTWARE LICENSE AGREEMENT ("AGREEMENT")
IMPORTANT:
READ THESE TERMS CAREFULLY BEFORE USING THIS SOFTWARE. YOU (THE "LICENSEE") ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE THE SOFTWARE, AND IT IS YOUR RESPONSIBILITY TO TERMINATE SOFTWARE WITHOUT USING THE SOFTWARE.


Terms and Conditions

  1. Definitions.

    Confidential Information is defined in Section 6.1.

    Designated Site means the domain of physical facility where Licensee first installs the Licensed Program.

    Documentation is defined in Section 2.1.

    Effective Date means the effective date of the order of the Licensed Program.

    License means the license granted to the Software under the terms and conditions set out in Section 2 below.

    License Fee means the license fee payable for the License, at the fee per Designated Site set forth in Ugetweb's then current price list, plus any applicable Taxes.

    Licensed Program means Ugetweb software purchased by Licensee, the current, generally released version as of the Effective Date, as installed by this installation process, and any Upgrades thereto provided by Ugetweb pursuant to Software Support and Upgrades policy, in machine-executable form only.

    Software is defined in Section 2.1.

    Software Support and Upgrades Fees is defined in the Support Terms.

    Software Support and Upgrades Services is defined in the Support Terms.

    Support Terms means Ugetwebs standard Software Support and Upgrades Terms and Conditions, set out in Exhibit A to this Agreement, attached hereto and made a part hereof by reference.

    Taxes is defined in Section 4.2.

    Term is defined in Section 10.1.

    Upgrades is defined in the Support Terms.

    Ugetweb means Etccafe Co., Ltd., having its principal offices at 39 Ramkumheang Road Soi 14, Huamark, Bangkapi, Bangkok, Thailand 10240.

  2. The Right to Use Software.
    1. License. Subject to the terms and conditions set forth below and Licensee's payment of the License Fee, Ugetweb grants to Licensee a limited, non-exclusive and non-transferable license, during the Term (as defined below) to install and operate the Licensed Program, in machine-executable form only on the Designated Site and solely in accordance with the associated delivered documentation (the "Documentation") (the Documentation together with the Licensed Program collectively, the "Software").

    2. Designated Site. Licensee shall implement reasonable controls to ensure that the Licensed Program is used solely on the Designated Site . Ugetweb reserves the right to audit Licensee's use of the Licensed Program during normal business hours and with reasonable notice and to include means within the Licensed Program to limit Licensee's use of the Licensed Program only at the Designated Site. Except as otherwise expressly provided herein, in the event that Licensee uses the Licensed Program on any domain other than Designated Site, Licensee shall promptly pay Ugetweb the fees required to license such additional Designated Site based upon Ugetweb's then-current commercial price list.

    3. Backup Database. Licensee is authorized to backup database information generated by the Software located at the Designated Site on a resevation and protection basis without charge any structure of database at Designated Site.

    4. Restrictions. Licensee may only make one copy of the Software as necessary for bona fide backup or archival purposes. No identifying marks, copyright or proprietary rights notices may be deleted from any copies of the Software made by Licensee. Except as otherwise expressly permitted hereunder, Licensee shall not rent, transfer, distribute, modify or translate the Software or decompile, create or attempt to create, by reverse engineering or otherwise, the source code from the object code of the Software, or adapt the Software, or any portion thereof, in any way or use it to create a derivative work.

  3. Software Support and Upgrades Services. Licensee may elect to purchase Software Support and Upgrades Services by so ordering from Ugetweb and paying Ugetweb the applicable Software Support and Upgrades Services Fees in accordance with the Support Terms. See Exhibit A

  4. Payment.
    1. Payment of Fees. Licensee shall pay the non-refundable License Fee prior to using the Software. At Licensee's option during the online registration process, Ugetweb will either charge the License Fee to the credit or debit card account provided by Licensee, or provide Licensee with a purchase order to print out, duly execute and fax or mail to Ugetweb followed by a wire transfer of the License Fee. Licensee will only gain access to the Licensed Program once the License Fee has been transferred and accepted by Ugetweb.

    2. Taxes. Licensee shall, in addition to all other payments required hereunder, pay all applicable sales, use, transfer or other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the transaction contemplated hereby; excluding, however, income taxes on profits which may be levied against Ugetweb ("Taxes"). Licensee shall reimburse Ugetweb for the amount of any such Taxes or duties paid or accrued directly by Ugetweb as a result of this transaction.

    3. Late Payment. If payment is not received by Ugetweb from Licensee's credit or debit card issuer or its agents, Licensee agrees to pay all amounts due upon demand by Ugetweb. If Licensee fails to pay License Fees or Software Support and Upgrades Fees by their due date, without limitation of other rights and remedies, at Ugetweb's request, Licensee shall pay late charges of one and one half percent (1.5%) per month, together with all of Ugetweb's expenses and collection costs, including reasonable attorneys' fees, incurred in enforcing the Agreement. Payments shall be paid in U.S. currency. Any rate of exchange which may be applicable to payments due or other monetary calculations for purposes of this Agreement shall be the rate set forth in the Wall Street Journal on the day that the payment is due.

  5. Proprietary Rights.
    1. Title to Software. Licensee acknowledges that the Software (and any copies thereof) are the sole and exclusive property of Ugetweb or Ugetweb's licensors, including all applicable rights to patents, copyrights, trademarks and trade secrets inherent therein or appurtenant thereto, in all media now known or hereinafter developed.

    2. Licensees Rights. Licensee is not purchasing title to the Software or copies thereof, but rather is being granted only a license to use the Software.

    3. Rights Reserved by Ugetweb. All rights not granted to Licensee herein are reserved to Ugetweb.

  6. Confidentiality.
    1. Restrictions on Use. Licensee shall not sell, transfer, publish, disclose, display or otherwise make available to others any portion of the Software, the financial terms of this Agreement, or any other information identified in writing by Ugetweb as confidential or proprietary or which, at law or equity, ought to remain confidential (collectively, the "Confidential Information") without Ugetweb's prior, written consent in each instance.

    2. Disclosure to Employees. Licensee agrees to secure and protect the Confidential Information in a manner consistent with the maintenance of Ugetweb's right therein and to take appropriate action by instruction or agreement with its employees who are permitted access to the Confidential Information to satisfy Licensees obligations hereunder.

    3. Identifying Unauthorized Use. Licensee shall use its best efforts to assist Ugetweb in identifying and preventing any unauthorized use, copying or disclosure of the Confidential Information, or any portion thereof, or any of the algorithms or logic contained therein. Licensee shall advise Ugetweb immediately in the event Licensee learns or has reason to believe that any person to whom Licensee has given access to the Confidential Information, or any portion thereof, has violated or intends to violate the confidentiality of the Confidential Information or the proprietary rights of Ugetweb, and Licensee will, at Licensee's expense, cooperate with Ugetweb in seeking injunctive or other equitable relief in the name of Licensee or Ugetweb against any such person.

    4. Degree of care. Licensee agrees to maintain the confidentiality of the Confidential Information using at least as great a degree of care as Licensee uses to maintain the confidentiality of Licensee's own most confidential information.

    5. Remedies on Breach. Licensee acknowledges that the disclosure of any aspect of the Confidential Information will immediately give rise to continuing irreparable injury to Ugetweb inadequately compensable in damages at law, and Ugetweb is entitled to obtain immediate injunctive relief against the breach or threatened breach of any of the foregoing confidentiality undertakings, in addition to any other legal remedies which may be available. In addition, Ugetweb may immediately terminate this Agreement, including all license rights granted herein, in the event Licensee breaches any of its confidentiality obligations herein.

  7. Indemnity.
    Licensee will, at its own expense, defend any action brought by a third party against Ugetweb to the extent that such action is based on a claim arising from or relating to Licensee's use of the Software, provided Ugetweb promptly notifies Licensee in writing of any such claim and, provided further, that Licensee shall have the exclusive right to control such defense. Licensee's obligation in this Section 7 shall be relieved by Ugetweb's failure to promptly notify Licensee of a claim only to the extent that Licensee is materially prejudiced by such failure.
    In no event shall Licensee settle any such claim, lawsuit or proceeding in any manner that materially prejudices Ugetweb's rights without Ugetweb's prior written approval.

  8. Warranty.
    ALL SOFTWARE AND SERVICES OF UGETWEB ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE (INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE AND NONINFRINGEMENT). UGETWEB DOES NOT WARRANT THAT THE SOFTWARE WILL BE DELIVERED OR PERFORM ERROR-FREE OR WITHOUT INTERRUPTION. LICENSEE'S USE OF THE SOFTWARE IS AT LICENSEE'S OWN RISK.

  9. Limitation of Liability.
    UGETWEB AND UGETWEB'S LICENSORS SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF UGETWEB OR UGETWEB'S LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL UGETWEB OR UGETWEB'S LICENSORS BE LIABLE FOR ANY REASON AND UPON ANY CAUSE OF ACTION WHATSOEVER RELATING TO ANY THIRD PARTY SOFTWARE OR HARDWARE. IN NO EVENT SHALL UGETWEB'S AGGREGATE LIABILITY FOR ANY REASON(S) AND UPON ANY CAUSE(S) OF ACTION WHATSOEVER EXCEED THE AMOUNT OF LICENSE FEES ACTUALLY PAID BY LICENSEE TO UGETWEB UNDER THIS AGREEMENT.

  10. Term and Termination.
    1. Term. The term of this Agreement (the "Term") shall commence on the Effective Date and shall continue perpetually, or as specified in the purchase order, unless terminated earlier pursuant to this Agreement.

    2. Termination. In addition to its rights as set forth elsewhere in this Agreement, at law or in equity: (i) Ugetweb shall have the right to terminate this Agreement upon thirty (30) days written notice to Licensee upon material violation or breach by Licensee, its officers or employees of any provision of this Agreement, in the event that such breach has not been cured within such period, and (ii) this Agreement shall automatically terminate in the event that Licensee fails to meet its payment obligations hereunder.

    3. Effect of Termination. The termination of this Agreement shall automatically, and without further action by Ugetweb, terminate and extinguish the License. In the event of termination of this Agreement by Ugetweb, Ugetweb shall have the right, at any time, to take immediate possession of the Software, and all copies thereof, wherever located. Within five (5) days after the termination of the License granted hereunder, Licensee shall return the Software, including all copies thereof, to Ugetweb, or upon request of Ugetweb, destroy the Software and all copies thereof and certify in writing that the same have been destroyed.

    4. Survival. Notwithstanding the foregoing, Sections 4, 5, 6, 7, 8, 9, 10, 12, 13 and 14 shall survive the expiration or termination hereof for any reason.

  11. Operating Environment.
    Licensee is solely responsible for acquiring, installing, operating and maintaining the hardware and software environment necessary to operate the Licensed Program.

  12. General.
    1. Entire Agreement. This Agreement constitutes the complete and exclusive statement of the terms and conditions between the parties, and supersedes and merges all prior proposals, understandings and other agreements, oral and written, between the parties, relating to the subject matter hereof. This Agreement may not be modified or altered except by written instrument duly executed by both parties.

    2. Waiver. The failure of either party to exercise any right provided for herein shall not be deemed a waiver of any further right hereunder. No action, regardless of form, arising out of this Agreement may be brought by either party more than two (2) years after the cause of action has arisen, with the exception of violation of Ugetweb's proprietary rights in the Software or the confidentiality obligations set forth herein.

    3. Assignment. Licensee may not assign or sublicense, without the prior written consent of Ugetweb, its rights, duties or obligations under this Agreement, in whole or in part, to any person or entity.

    4. Governing Law. This Agreement and any action related hereto shall be governed by the laws of Thailand without reference to the conflict of laws provisions thereof. Ugetweb and Licensee hereby agree on behalf of themselves and any person claiming by or through them that the sole and exclusive jurisdiction and venue for any litigation arising from or relating to this Agreement or the subject matter hereof shall be an appropriate court located in the Thailand. If any provision of this Agreement is invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted.

    5. Relationship of Parties. It is expressly agreed that Ugetweb and Licensee are acting hereunder as independent contractors.

    6. Notice. Any notice provided pursuant to this Agreement shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if mailed, three (3) days after deposit in the mails, postage prepaid, certified mail, return receipt requested; or (iii) if by next day delivery service, upon such delivery. All notices shall be addressed to Ugetweb at Etccafe Co., Ltd. at 39 Ramkumheang Road Soi 14, Huamark, Bangkapi, Bangkok, Thailand 10240, and to Licensee at the address provided by Licensee upon downloading the Licensed Program. Either party may change its address by giving written notice to the other party. Notwithstanding the foregoing, notice by Ugetweb to Licensee may be effected by electronic mail sent to the electronic mail address indicated to Ugetweb upon downloading the Licensed Program or to a different electronic mail address of which Licensee has notified Ugetweb.


EXHIBIT A
TO UGETWEB
LICENSE AGREEMENT

Software Support and Upgrades
Terms and Conditions

These Support Services Terms and Conditions (Support Terms) are referenced in and incorporated into the License Agreement between Ugetweb and the Licensee. Ugetweb may, from time to time, offer different maintenance and support options than as set forth herein. Such options will be specified on Ugetwebs website.

  1. Definitions.
    Unless defined otherwise herein, capitalized terms used herein shall have the same meaning as set forth in the License Agreement.

    License Agreement means the Ugetweb License Agreement between the Licensee and Ugetweb, which agreement references and incorporates these Support Terms.

    Response Time means the time frame within which Ugetweb shall provide the Licensee with a first response to a reported error in the Licensed Program submitted in writing to Ugetwebs online help desk. Such time frame shall be within 24 hours for errors reported from Sunday through Thursday or within 72 hours for errors reported on Friday or Saturday.

    Software Support and Upgrade Fees means the annual fees payable for Software Support and Upgrades in the amount set forth in the then current published list License Fee for each Support Period (hereinafter defined), due on the effective date of the order by which Licensee elects to obtain the Software Support and Upgrades.

    Software Support and Upgrades is defined in section 2.1 below.

    "Upgrades" means releases and versions of the Licensed Program issued subsequent to the release or version initially delivered hereunder in which Ugetweb has incorporated (i) accumulated corrections or Bug Fixes, (ii) Minor Upgrades, (iii) Major Upgrades, (iv) new platform compatibility; and/or (v) if applicable, new or revised Documentation that describes the updated Licensed Program. Bug Fixes shall be incorporated in a new version or release, indicated by a version number change in the second digit to the right of the decimal point of the version number (e.g., from version 1.0.1 to 1.0.2). A Minor Upgrade is defined as a new version or release, where the change in the version number appears as an increase in the first digit to the right of the decimal point of the version number (e.g., from version 1.1 to 1.2). A Major Upgrade is defined as a new version or release where the change in the version number appears as an increase in the first digit to the left of the decimal point of the version number (e.g., from version 1 to 2). Upgrades shall not include any options or future products, which Ugetweb licenses separately.

  2. Software Support and Upgrades.
    Scope. In consideration for Licensees payment of the Software Support and Upgrade Fees, and subject to the terms and conditions of these Support Terms, Ugetweb shall provide to Licensee during the Support Period Software Support and Upgrades, as specified below:

    1. Online Support. Ugetweb shall make technical support available to Licensee solely within the Response Time and via the Ugetweb help desk, available through the Ugetweb website. Technical support shall not be available via email or phone correspondence.
    2. Upgrades. Ugetweb shall provide Licensee with Upgrades to the Licensed Program that are generally released to Ugetweb's similarly situated licensees.

    3. Exclusions. Notwithstanding anything to the contrary, Ugetweb shall have no obligation hereunder to provide Software Support and Upgrades for (i) corrections of difficulties or defects due to Licensee's computer hardware, the computer environment, the computer operating system, use of the Software on equipment or an operating system not approved by Ugetweb or other causes external to the Software, or (ii) Software that has been modified from its standard form as provided by Ugetweb.


    Support Period. Subject to Section 2.4 below, Software Support and Upgrades shall be provided either: (a) for a period of one (1) year from the Effective Date (as defined in the License Agreement) if the Software Support and Upgrades Fees are included in the License Fees; or, (b) for a period of up to one year, commencing as of the date of the order of such Software Support and Upgrades and ending on the next anniversary of the Effective Date, (collectively, the Support Period). The Licensee may extend the Support Period each year for an additional period of up to one (1) year, ending on the next anniversary of the Effective Date, by submitting an order for such services. to Ugetweb.

    Termination for Cause. In the event Licensee fails to make payment pursuant to the Section below entitled Payment, or in the event Licensee otherwise materially breaches these Support Terms and such breach has not been cured within thirty (30) days of receipt of notice of breach, Ugetweb may suspend or cancel services.

    Duration. Software Support and Upgrades, if ordered, shall be available to Licensee (i) only so long as Licensee maintains the current installed version of the Licensed Program with all new Upgrades and any other new releases, versions, updates, enhancements and error fixes, and so long as the equipment on which the Licensed Program is installed is configured as specified in the Documentation, (ii) only so long as Licensee is up-to-date in its payment of Software Support and Upgrades Fees, and (iii) until termination or expiration of the License Agreement. In addition, the Software Support and Upgrades may not be reinstated for an applicable Licensed Program if the Licensee fails to obtain Software Support and Upgrades for any given time period and a Major Upgrade of the Licensed Program has been released during such period.

    Limitation. Notwithstanding anything to the contrary herein, Licensee shall be solely responsible for backing up the Licensed Program and performing other basic repairs as set forth in the Documentation or instructions which may be provided by Ugetweb to Licensee from time to time.

  3. Payment.
    Payment of Support Fees. Unless the Support and Upgrades Fees are included in the License Fee, on receipt of Licensees order for Software Support and Upgrades, Ugetweb shall invoice Licensee in advance in the amount of the Software Support and Upgrades Fees, which shall be due on the Effective Date or on the effective date of the order by which Licensee elects to obtain the Software Support and Upgrades. Licensee hereby agrees to pay all Software Support and Upgrades Fees at the prices and upon terms as set forth herein. Licensee acknowledges that Software Support and Upgrades Fees are non-refundable.

    Prices. Ugetweb reserves the right to change prices or institute new charges for the Software Support and Upgrades effective after the first anniversary of the Effective Date, provided that Ugetweb posts such new charges on Ugetwebs website at least thirty (30) days in advance. Licensee's continued use of the Software Support and Upgrades thereafter constitutes Licensee's acceptance of the prices and/or charges as modified by Ugetweb.

  4. Warranty.
    ALL SERVICES AND SOFTWARE OF UGETWEB ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE (INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE AND NONINFRINGEMENT). UGETWEB DOES NOT WARRANT THAT THE SOFTWARE WILL BE DELIVERED OR PERFORM ERROR-FREE OR WITHOUT INTERRUPTION. LICENSEE'S USE OF THE SOFTWARE IS AT LICENSEE'S OWN RISK.

  5. General.
    Ugetweb shall not be liable for any failure or delay in performance under these Support Terms due to causes beyond its reasonable control. Any illegal or unenforceable provision shall be severed from these Support Terms. Licensee agrees that any information received pursuant to these Support Terms shall be deemed to be subject to the non-disclosure obligations set forth in the License Agreement. Licensees obligation of payment of moneys due to Ugetweb under these Support Terms shall survive termination of these Support Terms or the License Agreement. These Support Terms state the entire agreement regarding Ugetwebs provision of Support Services to Licensee and may be amended only by a written amendment set forth on a separate document executed by authorized representatives of both parties.

 

 


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