1. Payment and Returns
1.1 Payment is due upon submission of the order and, unless otherwise indicated on the Order Form, must be made before products or services will be provided. Late payment is subject to interest at the lower of 1.5% per month or the maximum permitted by law from the date due until paid in full. Customer agrees to reimburse ExpressTech (Fishbowl) for any costs or expenses incurred by Fishbowl in connection with collecting payment from Customer, including reasonable attorneys' fees.
1.2 Customer shall be liable for payment of all taxes, however designated, levied or based on Customer's purchase, license, possession or use of the equipment, services, software or on this Agreement, including without limitation, state or local sales, use, value-added and personal property tax, but excluding any tax on the net income of Fishbowl.
1.3 Customer shall have thirty (30) days from the date of purchase during which to return, for any reason, any equipment (subject to a 15% restocking fee) or software for a refund of the fees paid by Customer (if any) using the following procedure only: (a) Customer must first contact Fishbowl at 800-774-7085 to obtain a Return Merchandise Authorization (RMA) number, (b) Customer must return at Customer's expense all equipment and tangible forms of any software within such 30-day period to Fishbowl at 580 E. Technology Ave., Building C, Suite 2500, Orem, Utah 84097, with the RMA number clearly visible on the outside of the package used to return the Software, (c) Customer must destroy and uninstall all versions of the software otherwise in the possession of Customer, and (d) equipment must be returned in its original packaging, and in like-new condition. Equipment and software not returned within the required 30-day period or without an RMA number clearly visible on the return package during such period, and equipment not returned with its original packaging and in like new condition, is not eligible for a refund, and will be refused and/or returned to Customer without refund. Returns not in complete compliance with this limited return policy are not eligible for refunds and will be deemed accepted by Customer for all purposes. All purchases of services provided by Fishbowl are non-refundable after the service has been provided or (30) days have passed from the date of purchase. Requests for refund of services not yet provided must be received within (30) days of date of purchase. These services include but are not limited to: on-site training, in-house training, custom reports and custom services of any type.
1.4 For on-site training provided by Fishbowl personnel, all normal and reasonable travel expenses will be
included in the cost of the on-site training. These expenses include airfare, lodging, and rental car expenses.
Food and other incidental travel expenses incurred by Fishbowl personnel are also included in the training fees unless otherwise specified in the Order Form. Should Customer elect to cancel or alter the travel arrangements for on-site training once travel arrangements have been purchased by Fishbowl, Customer will pay Fishbowl $1000.00 to cover any costs associated with cancelling or altering such travel arrangements. Should Customer elect to cancel or alter the scheduled date of the on-site training prior to travel arrangements being purchased by Fishbowl, Customer will pay Fishbowl $500.00 to cover any costs associated with cancelling or altering the scheduled date of training. If Customer requires specific times and dates of travel or otherwise have specific needs that require Fishbowl to incur expenses outside of the typical costs incurred in travel for on-site training,
Customer will be liable for these additional expenses.
2. Equipment Terms
2.1 Fishbowl will use reasonable commercial efforts to have the equipment ship in a timely manner in order to have equipment arrive at the Customer's specified location at the date requested by the Customer, if any. Customer understands and agrees, however, that Fishbowl's delivery dates and quantities are otherwise subject to change in Fishbowl's discretion and Fishbowl shall have no liability of any kind to Customer for any costs or damages related to delays in Customer's delivery or failure to give notice of delays of delivery of equipment. Delay in delivery or other failure to deliver any part of Customer's equipment order shall not relieve Customer of its obligation to accept and pay for prior or remaining portions of Customer's order. In order to accommodate potential uncertainty in transport times and other potential delays, Customer grants Fishbowl the right to ship equipment up to seven (7) calendar days earlier than otherwise requested by Customer. If equipment arrives earlier than requested at the location specified by Customer, Customer hereby agrees to accept and pay for such shipments. Fishbowl reserves the right to make shipments in installments when equipment is available.
2.2 Unless otherwise agreed to in writing and incorporated in the Order Form all sales are FOB Fishbowl's or the manufacturer's point of shipment. Fishbowl's title and risk of loss shall pass to Customer upon making delivery of equipments purchased hereunder to the carrier at Fishbowl's or manufacturer's point of shipment. Shipping will be made using carriers selected by Fishbowl or the manufacturer. Customer shall be solely responsible for all shipping costs. Customer shall be responsible for making all claims with carriers, insurers, warehousers, and others for non-delivery, loss, damage, or delay. Any loss or damage after delivery of the equipment to the carrier shall not relieve Customer of its obligations hereunder.
2.3 The equipment purchased from Fishbowl by Customer is covered by the original manufacturer's written warranty, if any, included with the equipment as delivered to Customer. To obtain service under warranty, Customer must return at its own expense the defective equipment to Fishbowl at 580 E. Technology Ave., Building C, Suite 2500, Orem, Utah 84097, by following the "product return" guidelines as outlined in Section 1.3. THERE ARE NO FISHBOWL WARRANTIES APPLICABLE TO SUCH EQUIPMENT, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE WHICH ARE HEREBY EXPRESSLY DISCLAIMED.
3. Service Terms
3.1 Fishbowl will perform its services in a workman-like manner. In the event Fishbowl does not perform its services in such manner. Fishbowl does not guarantee any specific service result or time for performance, unless specified otherwise in the Order Form.
4. Hosted Services
4.1 The products are designed to meet the typical needs of small and medium businesses. The usage of the product as determined by Fishbowl in its discretion should not exceed such typical use. Customer use will not adversely impact the experience of other customers or constitute excess usage of Services. The product is not intended to support the sustained demand of large enterprises, power users or other non-typical applications suited to dedicated servers and bandwidth.
4.2 Fishbowl will make commercially reasonable efforts to provide additional resources to customers who are
using the product(s) consistent with this agreement, including moving customers to newer and bigger servers
or increasing bandwidth as necessary. However, in order to ensure a consistent and quality experience for all
customers, Fishbowl may place safeguards to protect against any customer using excessive bandwidth and/or
server resources until Fishbowl can evaluate said customer's needs and adjust pricing, if necessary.
5. Limitations on Liability
5.1 Fishbowl's entire liability and Customer's exclusive remedy for damages from any cause whatsoever, and regardless of the form of action, whether liability in contract or in tort, arising under or related to this agreement, shall not exceed an amount equal to the amounts paid by Customer specified in the Order Form. The foregoing limitation of liability shall not apply to claims by Customer or third parties for personal injury or damage to real property or tangible personal property caused solely and directly by the gross negligence or willful misconduct of Fishbowl.
5.2 IN NO EVENT WILL FISHBOWL BE LIABLE FOR ANY LOST PROFITS, LOST SAVINGS, LOST REVENUES, LOSS OF USE OR DOWNTIME, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY OR FORM OF ACTION, EVEN IF FISHBOWL HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. Fishbowl and Customer agree that the limitations specified above and otherwise in this agreement will survive and apply even if any limited remedy provided in this agreement is found to have failed of its essential purpose.
5.3 All products and services provided to Customers by third party providers will be supported by the third party provider of said products and/or services unless otherwise specifically agreed to in writing by an authorized representative of Fishbowl. Fishbowl is not responsible for the quality and/or speed of support, or lack thereof, provided by third parties.
5.4 IN NO EVENT WILL FISHBOWL BE LIABLE FOR ANY LOST PROFITS, LOST SAVINGS, LOST REVENUES, LOSS OF USE OR DOWNTIME, LOSS OF DATA AND/OR DATA CORRUPTION OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY OR FORM OF ACTION, EVEN IF FISHBOWL HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, arising out of the use of or the inability to use products and/or services of third parties sold to the Customer by Fishbowl, even if Fishbowl has been advised of the possibility of such damages. Fishbowl and Customer agree that the limitations specified above and otherwise in this agreement will survive and apply even if any limited remedy provided in this agreement is found to have failed of its essential purpose.
5.5 Fishbowl reserves the right to cease conducting business with any third-party provider of products and/or services at any time without notice of any kind.
6. Miscellaneous Terms
6.1 An order shall be deemed accepted only when Fishbowl provides Customer with a written Order Form and it is returned signed by Customer. Clerical errors or omissions on the Order Form are subject to correction by Fishbowl. For all other purposes of this agreement, purchase date controls the return period for all Customers.
6.2 This agreement, including the Order Form, these general terms and conditions, and any addendums attached hereto (the "Agreement"), constitutes the entire agreement between the parties relating to the subject matter hereof, and supersedes all prior and contemporaneous oral or written representations or communications between the parties. This agreement may not be modified or amended, nor any provision waived, except in writing executed by the appropriate designated officers or other authorized representative of the parties hereto. Any variation in the terms and conditions contained in this agreement (including, but not limited to, the inclusion of Customer's own terms and conditions in any purchase order or other document issued by Customer in response to and/or referencing this agreement) shall not be deemed to be a part of this agreement and shall not be binding upon Fishbowl unless set forth in writing and executed by the appropriate designated officer of Fishbowl. Subject to the limitations expressed herein, this agreement will be binding upon and inure to the benefit of the parties hereto, their successors, legal representatives, and assigns. This Agreement may be assigned by Fishbowl without restriction.
6.3 This Agreement may be executed in two counterparts, each of which shall be deemed an original and both
of which shall constitute one and the same instrument. A facsimile or other reproduction of this
Agreement may be executed by one or more parties hereto, and an executed copy of this Agreement may be
delivered by one or more parties hereto by facsimile or similar electronic transmission device pursuant to
which the signature of or on behalf of such party can be seen, and such execution and delivery shall be
considered valid, binding and effective for all purposes.
6.4 If a part of this Agreement is held unenforceable or invalid or prohibited under law, it shall be struck from this Agreement and shall not affect the enforceability of the other parts of this Agreement.
6.5 This agreement shall be construed and enforced in accordance with the laws of the State of Utah which are applicable to the construction and enforcement of contracts between parties resident in Utah which are entered into and fully performed in Utah. ANY ACTION OR PROCEEDING BROUGHT BY EITHER PARTY HERETO AGAINST THE OTHER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE BROUGHT IN A STATE OR FEDERAL COURT OF COMPETENT JURISDICTION LOCATED IN THE COUNTY OF SALT LAKE, STATE OF UTAH AND BOTH PARTIES HEREBY CONSENT TO THE JURISDICTION AND VENUE OF SUCH COURTS FOR THAT PURPOSE.
6.6 In the event either party commences a legal proceeding to enforce this Agreement, the prevailing party in such action shall have the right to recover reasonable attorneys' fees and costs from the other party, to be fixed by the court in the same action.
6.7 Fishbowl shall not be liable for any loss, penalty, damages or be held for breach or failure to perform any aspect of this Agreement when the failure to perform is due in whole or in part to causes outside of Fishbowl's reasonable control, including, but not limited to, acts of nature, acts or omissions of Customer, judicial action, acts of civil or military authority, war, terrorist activity, sabotage, civil unrest, shortages of energy, raw materials, labor, or equipment, delays in transportation, or acts of God.
Fishbowl Inventory and/or Fishbowl Mobile Warehouse
(Standard Versions and Free Evaluation Versions)
1.1 Subject to the provisions contained herein, Fishbowl grants to Licensee a non-transferable, nonexclusive license for the use of the copyrighted computer software product(s) (Software) specified in Licensee's accompanying Order Form and accompanying written documentation by each Authorized End-User of Licensee. For purposes of this Agreement, "Authorized End-User" means any person who is affiliated with Licensee as (a) a full-time or part-time employee, or (b) a full-time or part-time consultant.
1.2 If Licensee is licensing an Evaluation Version of the Software at no charge, Licensee may use the Software only for a limited evaluation period beginning on the date such Software is first downloaded by Licensee from Fishbowl described in the Software Key (Key) accompanying the Evaluation Version and only for the number of concurrent Authorized End-Users as specified by the Key. Notwithstanding the provisions below, Licensee has no rights to any Software maintenance or upgrades during such evaluation period. Unless Licensee licenses and pays for a Standard Version of the Software, Licensee agrees to discontinue the use of such Evaluation Version promptly upon the expiration of the evaluation period and acknowledges that the Evaluation Version of the Software will automatically become disabled and unusable after such period (Licensee will thereafter have no access to any data entered into the Software).
1.3 If Licensee is licensing the Software for multiple Authorized End-Users as specified in the Order Form, then Fishbowl grants Licensee the right to install the server portion of the Software on a single server for use concurrently by up to that number of specified Authorized End Users and no more. Prior to installing the server portion of the Software on any other computer, Licensee must first uninstall it from the original computer. Fishbowl also grants Licensee a nontransferable, nonexclusive license to copy the client portion of the Software on an unlimited number of computers owned and controlled by Licensee, so long as the number of Authorized End-Users concurrently using the Software does not exceed the number specified in the Order Form.
1.4 In addition to the copies expressly permitted under Section 1.3 (if applicable), Licensee may make one (1)
copy of the Software for archival and backup purposes. All copies of the Software shall remain subject to all
terms of this Agreement, and Licensee shall ensure such copies include the copyright notice and any other
proprietary notice set forth in the master media. Licensee shall maintain records of each copy it makes of the
Software and the location of such copy. Fishbowl retains all title and ownership rights to the Software, including all copies duplicated by Licensee under this Agreement. Licensee owns only the physical media on which the Software is originally or subsequently recorded or fixed.
2. Maintenance and Support; Training
2.1 For the first year following the date of purchase, and for each annual period thereafter for which Licensee has paid Fishbowl in full the annual Maintenance and Support fees, Fishbowl will provide Licensee with the following maintenance and support for the Software: (a) make available to Licensee at no additional charge, through downloading from Fishbowl's Internet website, Software enhancements, upgrades and improvements, when and if developed by Fishbowl, and (b) assistance in use of the Software for up to that number of support incidents during each year of paid support and maintenance. (Additional support incidents and training assistance are available for a fee). Licensee agrees that the determination of the extent of technical support to be provided by Fishbowl rests exclusively with Fishbowl in its discretion and that Fishbowl is not required to correct any particular error or defect in the Software or Licensee's use of the Software. Fishbowl may increase its annual subscription fee at any time with or without notice.
2.2 Maintenance and Support applies only to the software and does not cover items such as hardware, operating system, network or third party software, nor does it cover items resulting from Licensee's unauthorized use, misuse, misapplication or modification of the Software.
2.3 Maintenance and Support will be provided only for the latest release version of the Software and any
subsequent point releases.
3.1 Unless specified otherwise on the Order Form, when licensing the Software (not including the Free Evaluation Version), Licensee shall pay the licensing fee identified on the Order Form prior to downloading or otherwise using the Software. When licensing the Evaluation Version of the Software, Licensee shall pay the licensing fee identified on the Order Form prior to using the paid version of the Software.
4. Restricted Use
4.1 Licensee shall use the Software under this Agreement only on computers which are either (a) owned or leased by Licensee and (b) controlled by Licensee.
4.2 Licensee agrees to use the Software only as indicated hereunder and may not modify, adapt, translate, rent or sublicense the Software or use it for any commercial timesharing or service bureau purpose.
4.3 The Software is protected by copyright laws. Licensee agrees to not create, or attempt to create, or permit to help others to create, the source code from the Software furnished pursuant to this Agreement. Licensee agrees to not reverse engineer, disassemble, decompile or otherwise reduce the Software to a human-perceivable form, disable any functionality which limits the use of the Software, create derivative works from the Software, or disclose confidential interfaces to the Software.
4.4 Licensee shall advise each Authorized End User that receives a copy of the Software that (a) the user is not permitted to copy the Software, and (b) the Software cannot be transferred.
4.5 The Software and documentation are provided with RESTRICTED RIGHTS. Use, duplication or disclosure
by the Government is subject to restrictions as set forth in the Rights in Technical Data and Computer
Software Regulations. Contractor/manufacturer is ExpressTech International, LLC, 580 E. Technology Ave.,
Building C, Suite 2500, Orem, Utah 84097.
5. Term and Termination
5.1 Licensee may terminate this Agreement for any reason upon notice to Fishbowl, but except as provided above under Fishbowl's limited return policy, all license and support fees are non-refundable. Fishbowl may in its discretion terminate this Agreement upon notice from Fishbowl if Licensee fails to comply with any provision of this Agreement. All liability for breach of this Agreement shall survive such termination.
5.2 Upon termination, Licensee shall also uninstall and destroy the Software and make sure that it is no longer
in use or usable. Sections 1.4, 3, 4.3, 5, 6 and 7 shall survive the termination of this Agreement.
6. Limited Warranty
6.1 The media on which the Software is furnished is warranted to be free of defects in workmanship and material under normal use for a period of sixty (60) days from the date of order. The sole responsibility of Fishbowl and Licensee's exclusive remedy under this warranty will be to receive a replacement of the media free from defects in workmanship and materials. To obtain replacement, Licensee must return the defective media with proof of order. Media damaged by accident, abuse or misuse is not covered under this limited warranty.
6.2 Licensee and Licensee alone is responsible for determining which Software meets Licensee's particular needs, for installing the Software, and for the results obtained. Because Licensee may evaluate the Software free for the evaluation period, and may thereafter return the Software in compliance with Fishbowl's limited return policy for an additional 30 days following date of purchase, the Software is licensed "as is" without warranty as to its performance, except for the media warranty provided above. THERE ARE NO OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SOFTWARE AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED. FURTHER, FISHBOWL DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SOFTWARE OR WRITTEN MATERIALS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FISHBOWL SHALL CREATE ANY WARRANTY OR IN ANY WAY EXPAND THE LIMITED WARRANTY PROVIDED UNDER THIS SECTION 6.2. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.
6.3 IN NO EVENT SHALL FISHBOWL BE RESPONSIBLE FOR ANY SPECIAL, INCIDENTAL,
INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF REVENUE OR PROFITS, BUSINESS
INTERRUPTION, LOSS OF DATA OR OTHER LOSS ARISING OUT OF LICENCEE'S USE OF OR
INABILITY TO USE THE SOFTWARE, REGARDLESS OF THE THEORY OR BASIS OF LIABILITY AND
EVEN IF EXRESSTECH HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
FISHBOWL'S LIABILITY ARISING OUT OF THIS AGREEMENT SHALL IN NO EVENT EXCEED THE
LICENSE AND OTHER FEES FEE SET FORTH IN THE ORDER FORM. BECAUSE SOME STATES DO
NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL
DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE.
7. General Provisions
7.1 The Software contains certain components that are licensed from the following third parties:
JASPERREPORTS, ITEXT, JDOM, FIREBIRD DATABASE, HIBERNATE, SPRING, JIBX, COMFY J, POI, IBM COM BRIDGE, BARBAQUE, JFREE CHART, JCOMMON, JAKARTA COMMONS (Apache Software License is included in "readme.txt"), JAVA SUN MIRCOSYSTEMS
The Software conforms to all licensing requirements stipulated by the various license holders listed above, with the specific details described in a file named "readme.txt" included in the Software. Source code that is required to be distributed with the Software is provided in the Software in a file named "source."
7.2 The parties agree that this Agreement and the Software may not be assigned, sublicensed or otherwise transferred by Licensee without the prior written consent of Fishbowl.