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HOINTER CUSTOMER AGREEMENT
This Hointer Customer Agreement (“Agreement”) contains the terms and conditions that govern this Agreement between you or the entity you represent (“you”) and Hointer Inc. (“us,” “our,” or “we”). Whereas you want to license our Licensed Programs, and we desire to license those programs out to you. You represent to us that you are lawfully able to enter into this contract, and that if you are a representative of your entity, you have the legal authority to bind that entity to this Agreement. Please see section 21 for the definitions of certain capitalized words in the Agreement. Therefore, for good and valuable consideration, the parties agree as follows:
1. GRANT OF LICENSE
A. In exchange for agreeing to adhere to the terms and conditions of this Agreement, we would like to grant to you a non-exclusive and non-transferable license to use the Licensed Programs.
B.We remain the exclusive owner of all titles, rights, and interests in the Licensed Programs throughout and after this Agreement.
2. TERM OF USE
The terms of this Agreement shall begin on the first day of our software being used by your stores, and the Agreement will endure unless terminated by either party.
3. CUSTOMER SUPPORT
We shall provide all reasonable and appropriate customer service requests by you and or your employees relating to the Licensed Program’s operation and or any possible issues that arise.
4. SECURITY, BACKUP & PRIVACY
A.We will make all reasonable and sensible efforts to protect your dataagainst accidental loss, access or disclosure. We shall not be liable for any data that is lost in the employment of the Licensed Programs, but will use all appropriate measures to ensure your content and data is properly protected against any loss or forfeiture.
B.You will be responsible for configuring and safeguarding your own networks and computers that you use to operate the Licensed Programs.
We proclaim that we have no actual knowledge that the Licensed Programs infringe any valid rights of any third party.
6. DEVIATIONS IN SERVICE
A.The Licensed Programs are subject to possible changes in functionalities, delays, or disruption of service, but we will attempt to notify you of any known material change or interference to the Licensed Programs.
B.If at any point there is an interruption to the service of the Licensed Programs known to us, we will make all reasonable and good faith efforts to promptly remedy the issue.
7. FEES AND PAYMENTS
A. We will calculate and bill fees monthly and provide them to you in a monthly invoice at the end of each month for the services provided that prior month (which are exclusive of all applicable taxes). All payment obligations are non-refundable and should try to be made within thirty (30) days of the invoice date. If need be, we can work to accommodate you with a more convenient payment schedule.
B. Depending upon the details of your specific Set-Up Phase and Agreement, fees will be charged in either a lump sum for the initial installation of the Licensed Programs and an hourly rate for all work and Modifications done thereafter, an hourly rate for the installation and an hourly rate for all work and modifications done thereafter or some combination of both.
C.Most requests for Modifications to the Licensed Programs after the Set-Up Phase shall come as an additional cost, at a mutually agreed upon hourly rate, to you.
D. If by chance you routinely fail to make required payments and or become unresponsive, without limiting our other rights and remedies, it is possible that we may impose a 1.5% interest rate per month (or the highest rate permitted by law, if less) on all late payment. As well, as a last resort, we reserve the right to suspend the Licensed Programs and request immediate payment of the unpaid obligation including the additional supplemental interest rate. And possibly, as a show of good faith, we may request that you pay up front the next month’s fee (an average of your previous monthly payments to us) for the Agreement to endure.
E. Unless otherwise agreed upon, payments and fees should be made by check or wire transfer.
8. CONVINIENT TERMINATION
A. At any point during this Agreement, either party may elect to end the Agreement for any reason or no reason at all by providing fourteen (14) days notice to the other party.
B. Upon termination of this agreement, all of your rights and responsibilities to us under this Agreement cease except (i) you remain responsible for all outstanding fees and or unpaid labor, (ii) you agree to return, or if asked to destroy, all software and Licensed Programs if and or when requested by us and (iii) all responsibilities mentioned in section 13.
EXCEPT AS SPECIFIED IN THIS WARRANTY, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. ALL LICENSED PROGRAMS AND SERVICES ARE PROVIDED “AS IS.”
10. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF USE, LOSS OF PROFITS OR INTERRUPTION OF BUSINESS.
11. MODIFICATIONS TO LICENSED PROGRAMS
Unless otherwise agreed upon by prior agreement with us, you should not modify, alter, or make any changes to the Licensed Programs.
All notices in connection with this Agreement shall be in writing and may be given by e-mail, certified, registered, or first class mail or personally delivered at the addresses set forth.
A. You recognize that the Licensed Software is the proprietary and confidential property of ours. Accordingly you cannot, without the prior express written consent from us, during the term of this Agreement and for five (5) years thereafter (i) disclose or reveal to any third party any of the Intellectual Property and or propriety information provided in this Agreement or (ii) utilize for your own benefit, other than pursuant to this Agreement, any of the Licensed Programs. Provided however that such information was not previously known to you or to the general public. You further agree to take all reasonable precautions to preserve the confidentiality of our Licensed Programs, as you would your own confidential information, and shall assume responsibility that your employees and assignees will similarly preserve this information against third parties.
B. As well, you agree for five (5) years after the termination of this Agreement to not develop, procure, or implement software of the kind and nature reasonably related or similar to our Intellectual Property, Licensed Programs, software content, technology, themes, designs or ideas unless expressly agreed upon by us or upon express and concrete proof of prior existence of knowledge of such technology, software or ideas.
THE PROVISIONS OF THIS CLAUSE SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
This Agreement will be binding upon and will inure to the benefit of the parties hereto and their respective authorized representatives, successors and assigns except as otherwise provided herein.
In the event any provision of this Agreement is determined to be invalid or unenforceable, the remainder of this Agreement shall remain in force as if such provision were not a part.
In the event a dispute shall arise between the parties to this Agreement it is hereby agreed that the dispute shall be referred to and decided and arbitrated in King County, Washington by an agreed upon arbitration service provider located in the County of King and the respective rules of whichever arbitration service is used will apply. The arbitrator's decision shall be final and legally binding and the judgment may be entered thereon. Each party shall pay their own attorney’s fees and the mutual costs of the arbitration process will be split between participating parties.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION THAT AFFECTS YOUR LEGAL RIGHTS AND MAY BE ENFORCED BY THE PARTIES.
17. INTERNATIONAL LINCENCEES
A.This entire agreement, in addition to this clause, is binding to you if your place of incorporation and or principal place of business is outside the Territories of the Unites States of America.
B. All fees and payments required by this Agreement shall be paid by the you in US $ (United States Dollar) and the relevant currency of the your country must be converted using the current standard conversion rate of the day the payment is requested by us.
C. Any local, regional, state, or provisional taxes or duties of your Country must be paid by you exclusive of the fees owed by you to us stemming from this Agreement.
D. Unless otherwise agreed upon, payments and fees should be made by check or wire transfer.
E. You agree to safeguard all of our Licensed Programs, Intellectual Property, and propriety information in your respective country with the utmost care and responsibility.
18. GOVERNING LAW & FORUM
This Agreement shall be governed and interpreted by the laws of the State of Washington. King County, Washington shall be the appropriate venue and jurisdiction for the resolution of any disputes hereunder. Both parties hereby consent to such personal and exclusive jurisdiction.
This Agreement and the licenses granted by it may not be assigned, sublicensed, or otherwise transferred by either party.
20. ENTIRE AGREEMENT
This Agreement and any exhibits attached hereto sets forth the entire understanding between you and us with respect to the subject matter mentioned and articulated in this Agreement, and merges and supersedes all prior agreements, discussions and understandings, express or implied, concerning such matters.
The parties have caused this Agreement to be executed as of the Effective Date when you click “I Agree” below.
“Agreement” means the present grant of the temporary license as enunciated in this express contract, the purpose of which is to ensure a well-executed, clear, mutually beneficial partnership between you and us for the use of the Licensed Programs.
“Effective Date” means the date on which the Agreement mutually becomes operative and both party’s rights and your responsibilities herein become effective.
“Intellectual Property” means all of our trade secrets, patents, trademarks, propriety information, product names, software, computer coding, and industrial designs.
“Licensed Programs” means the entirety of our technology, software, and Intellectual Property that you are borrowing from us, comprised of some or all of the following applications: eTag, OmniCart, MicroWarehouse, Associate Tools, Digital Connection and all the operating software provided therein.
“Modifications” means any customizations to the Licensed Programs requested by you, which alters the technology and or design of the Set-Up Phase of the Licensed Programs. Most Modifications will come at an added, agreed upon hourly rate to you.
“Set-Up Phase” means all principal agreed upon customizations of the Licensed Programs designed for you prior to the launch of the Licensed Programs by your business.