Agreement Between User and Absolute Value – Software and Services Terms

These software subscription terms (“agreement”) are an agreement between Absolute Value LLC and you. Please read these terms carefully.

Except as otherwise expressly specified, this agreement applies to all Absolute Value software solutions, which includes the media on which you received it, if any. It also applies to any Absolute Value updates, supplements, internet-based services, and support services.

This agreement defines all license terms concerning the software.

By installing, having installed, subscribing to, or using the software, you accept this agreement (including any modifications made to it from time to time). If you do not accept this agreement, do not install, have installed, subscribe to, or use the software.

If an individual enters into this agreement on behalf of a legal entity, that individual represents that he or she has the authority to bind that entity to this agreement.

Notice Regarding Subscription Validation. Servers on which the software is installed periodically provide information to verify that the software is properly licensed and that the term has not expired. This information includes the customer subscription identifier, product name, license serial number, product version number, and date of last use.

Upon registering your Absolute Value subscription, you have the rights below for each license you acquire for the software.

1. OVERVIEW.
   1. Software Subscription. The software may include:
      • server software;
      • client software that can be installed on devices and/or used with the server software;
      • any updates or supplements for the software;
      • third party internet services.
   2. Licensing. The software is licensed or registered based on:
      • the software that you install in an on-premises database or access on a hosted basis;
      • the number of your users that access the software or the number of SKUs your system handles; and
      • the software features that you register for use.
   3. License Model. The software is licensed under a subscription License / Registration Model. Under this model, you have subscribed to use the software on a per user and feature (module) basis (in some cases including a per package shipment fee) for a limited period.

      Your software subscription must be paid monthly to ensure access to the subscription.

      If you fail to keep your subscription payments current, your company or your customer representative as designated on your subscription registration will be contacted. You will be given 30 days to resolve the matter with us. At the end of the 30 days, Absolute Value is entitled to withhold access for non-payment and until past-due fees are paid in full. In the case of payment collections, you will reimburse Absolute Value for all costs of collection, including attorney’s fees.

      Absolute Value must provide 30 days’ notice for termination of this contract. You may stop using your subscription at any time, however you will be responsible for payment of any subscription usage.

      If your subscription license expires or terminates, your right to use the software will stop immediately. If you continue using the software after that, you could be held liable for infringement of intellectual property rights, which could result in significant damages being assessed against you or other legal remedies taken.

2. DEFINITIONS.
   1. “affiliate” means any legal entity that directly or indirectly owns, is directly or indirectly owned by, or that is directly or indirectly under common ownership with a party to this agreement.
   2. “subscription software” means the software offered in a hosted environment and paid for monthly.
   3. “ownership” means more than 50% ownership.
   4. “SAL” means subscriber access license.
   5. “you” means the legal entity that has agreed to this agreement, your affiliates, and each of your, and your affiliates’, employees, contractors, agents and suppliers.
3. REGISTRATION OF SOFTWARE.
   1. Extension Software. You or your Absolute Value consultant must activate the software by registering it. Registration grants you the right to install and run the software selected.
   2. Cost Calculation. As part of the Registration process, you will have the opportunity to select the features that you want to use. SKUs in your warehouses, features and/or users will have a cost associated to them. A price quote will be available to you prior to registering. If any of these variables change during a month, you will be billed for the largest number counted for usage in that month.
   3. Subscription Validation. The Software will from time to time perform a validation check on itself. During or after a validation check, the server may send information about the software, the computer and the results of the validation check to Absolute Value. This information includes customer subscription identifier, product name, registration serial number, product version number, number of carrier shipments if applicable, and the date of last use. Absolute Value will use this information only to verify registration compliance or for billing purposes. By using the software, you consent to the transmission of this information.
   4. Complex Software. The software is complex computer software. Its performance will vary depending on your hardware platform, network speed, software interactions, the configuration of the software and other factors. The software is neither fault tolerant nor free from errors, conflicts or interruptions.
   5. Third Party Notices. The software may include third party material (i.e., code or documentation) that Absolute Value registers to you under this agreement. Notices, if any, for the third-party material, are included for your information only.
   6. Additional Functionality. You may elect to register and subscribe to additional software features to obtain additional functionality. In this case, the additional functionality and the associated pricing will be described to you in the registration process. If you elect to register the additional functionality, it will be billed monthly, by daily usage of the feature, by the appropriate number of users, and a charge for packages shipped, if applicable.
   7. Internet-Based Services. Absolute Value may provide Internet-based services with the software.

      Certain features in the software may connect to Lanham or third-party service provider computer systems over the Internet. These services include, but are not limited to online training, and online assistance. For more information about these features, see the software documentation. By using these features, you consent to the transmission of this information.

   8. Use of Information. Lanham may use the device information and error reports to improve our software and services.
   9. Misuse of Internet-based Services. You may not use these services in any way that could harm them or impair anyone else’s use of them. You may not use the services to try to gain unauthorized access to any service, data, account or network by any means.
4. SCOPE OF LICENSE / REGISTRATION. The software is registered, not sold. This agreement only gives you rights to use the software subscription. Absolute Value reserves all other rights. Unless applicable law or a separate written contract with Absolute Value gives you more rights despite this limitation, you may use the software subscription only as expressly permitted in this agreement. In doing so, you must comply with any technical limitations in the software that only allow you to use it in certain ways. You may only use the software for your internal business purposes. You may not:
   1. work around any technical limitations in the software;
   2. reverse engineer, decompile or disassemble the software, except and only to the extent that applicable law expressly permits, despite this limitation;
   3. circumvent the validation functions of the software;
   4. publish the software for others to copy;
   5. share the software with Absolute Value competitors
   6. rent, lease or lend the software; or
   7. use the software for commercial software hosting services.
   Your rights to use the software may be revoked if you do not comply with the terms of this agreement.
5. TERMINATION. This contract may be terminated with 30 days’ notice. You may stop using the software at any time, and will be responsible for payment of usage based on feature costs, your number of SKUs and users. BACKUP COPY. You may make multiple copies of the software for backup, development and testing purposes, so long as such copies are not used in production and the development or testing is for your internal business purpose only. Your backup copies may be hosted by a third party on your behalf.
6. REGISTRATION TRANSFER. You may not transfer the software subscription without Absolute Value’s prior written consent. There may be additional charges for transferring the software to an affiliate or third party.
7. CONFIDENTIALITY. The service is confidential to Absolute Value. You will use a reasonable degree of care to prevent its disclosure to third parties.
8. DOCUMENTATION. Any person that has valid access to your computer or internal network may copy and use the documentation for your internal, reference purposes. You will use at least a reasonable degree of care to prevent its disclosure to third parties.
9. DOWNGRADE. You have no rights to use earlier versions of the software under this license and Absolute Value is not obligated to supply earlier versions to you.
10. EXPORT RESTRICTIONS. The software subscription is subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the software. These laws include restrictions on destinations, end users and end use.
11. APPLICABLE LAW. Governing Laws. When you acquire Absolute Value software, a United States corporation located in Georgia, Georgia state law governs the interpretation of this agreement and applies to claims for breach of it, regardless of conflict of laws principles. Any potential legal issues will be subject to review and resolution in a court in the State of Georgia, USA.
12. Attorneys’ Fees and Costs. If you or Absolute Value file a lawsuit, bring an action or otherwise pursue a claim against the other in connection with or arising out of this agreement or the software, the prevailing party will be entitled to recover its reasonable attorneys’ fees, costs and other expenses (including any appeal).
13. DEFENSE OF INFRINGEMENT AND MISAPPROPRIATION CLAIMS. Absolute Value will defend you against any claims made by an unaffiliated third party that the software infringes its patent, copyright or trademark or misappropriates its trade secret, and will pay the amount of any resulting adverse final judgment (or settlement to which Absolute Value consents).

    You must notify us promptly in writing of the claim and give us sole control over its defense or settlement. You agree to provide us with reasonable assistance in defending the claim, and Absolute Value will reimburse you for reasonable out of pocket expenses that you incur in providing that assistance. The terms “misappropriation” and “trade secret” are used as defined in the Uniform Trade Secrets Act, except in the case of claims arising outside the United States, in which case “trade secret” will mean “undisclosed information” as described in Article 39.2 of the TRIPs agreement and “misappropriation” will mean intentionally unlawful use.

    Our obligations will not apply to the extent that the claim or adverse final judgment is based on (i) your use of the software after Absolute Value notifies you to discontinue use due to such a claim; (ii) your combining the software with a non-Absolute Value product (hardware, software or service), data or business process including third party add-ons or programs; (iii) damages attributable to the value of the use of a non-Absolute Value product, data or business process; (iv) your altering or modifying the software, including any modifications by third parties; (v) your distribution of the software to, or its use for the benefit of, any third party; (vi) your use of Absolute Value trademark(s) without express written consent to do so; or (vii) for any trade secret claim, your acquiring a trade secret (a) through improper means; (b) under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (c) from a person (other than Absolute Value or its affiliates) who owed to the party asserting the claim a duty to maintain the secrecy or limit the use of the trade secret. You will reimburse us for any costs or damages that result from these actions.

    If Absolute Value receives information concerning an infringement or misappropriation claim related to the software, Absolute Value may, at its expense and without obligation to do so, either (i) procure for you the right to continue to run the software, or (ii) modify the software or replace it with a functional equivalent, to make it non-infringing, in which case you will stop running the software immediately. If, as a result of an infringement or misappropriation claim, your use of the software is enjoined by a court of competent jurisdiction, Absolute Value will, at its option, either procure the right to continue its use, replace it with a functional equivalent, modify it to make it non-infringing, or refund the amount paid in the past two monthly periods and terminate this license.

    If any other type of third-party claim is brought against you regarding Absolute Value’s intellectual property, you must notify us promptly in writing. Absolute Value may, at its option, choose to treat these claims as being covered by this section. This Section provides your exclusive remedy for third party copyright, patent or trademark infringement and trade secret misappropriation claims.

14. LIMITATION ON AND EXCLUSION OF DAMAGES. You can recover from Absolute Value and its suppliers only direct damages up to the amount you paid for the software in the preceding two months, except for claims covered by Section 21. You cannot recover any other damages, including consequential, lost profits, special, indirect or incidental damages.

    This limitation applies to:

    1. anything related to the: (i) software, (ii) services, (iii) content (including code) on any third-party Internet sites, or (iv) third-party materials; and
    2. claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, loss of data, damage to records or data, loss of goodwill, loss as a consequence of a business interruption or any other tort to the extent permitted by applicable law.

    It also applies even if:

    1. repair, replacement or a refund for the software does not fully compensate you for any losses; or
    2. Absolute Value knew or should have known about the possibility of the damages.

    Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. They also may not apply to you because your country may not allow the exclusion or limitation of incidental, consequential or other damages.

15. ENTIRE AGREEMENT. This agreement (including the warranty), and the terms for supplements, updates, Internet-based services and support services that you use are the entire agreement for the software subscription and support services.
16. AUTHORITY. You possess the full power and authority to enter into this Agreement for your company and to fulfill its obligations. By using this Software Service you agree to the terms and conditions.