Fishbowl Solutions, LLC
ORDER FORM AND SALES AGREEMENT
General Terms and Conditions
- Payments and Returns
- Equipment Terms
- Service Terms
- Hosted Services
- Limitations on Liability
- Miscellaneous Terms
- Software License Addendum
1. Payments 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 Fishbowl Solutions (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 Software - Customer shall have thirty (30) days from the date of purchase (as shown on the Order Form) to return the software, for any reason, for a refund of the fees paid by Customer (if any) using the following procedure only: (a) Customer must first contact Fishbowl at firstname.lastname@example.org to obtain a Return Merchant Authorization (RMA) number, (b) Customer must send to Fishbowl via email, a request for a return of the software with the provided RMA number in the subject line of the email. The email must be sent to RMA@fishbowlinventory.com and must be received within thirty (30) days of the purchase date. (c) Customer must destroy and uninstall all versions of the software otherwise in the possession of Customer, and (d) and email request not received within the required thirty (30) day period, or without an RMA in the subject of the email is not eligible for a refund. Equipment - Customer shall have thirty (30) days from the date of purchase to return, for any reason, all equipment (subject to a 15% restocking fee) for a refund of the fees paid by Customer (if any) using the following procedure only: (a) Customer must first contact Fishbowl at email@example.com to obtain a Return Merchant Authorization (RMA) number, (b) Customer must return at Customer’s expense all equipment within such thirty (30) day period to Fishbowl with the RMA number clearly visible on the shipping label of the package used to return the Equipment, (c) Equipment must be returned in all its original packaging, and in like-new condition. Equipment not returned within the required thirty (30) day period or with a valid 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 thirty (30) days have passed from the date of purchase. Requests for refund of services not yet provided must be received within thirty (30) days of date of purchase. These services include but are not limited to: on-site training, implementation, in-house training, remote training, data migration, plugins, and custom services of any type. Should Customer elect to purchase using any third party financing, Customer will need to provide Fishbowl proof from the third party financing company that all money owing under the financing agreement has been satisfied before Fishbowl will return any money owed. Once Fishbowl has been provided with said proof, Fishbowl will then release the funds owed according to the terms of the Order Form.
1.4 For on-site training and implementation 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 or implementation 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, Customer will be liable for these additional expenses.
1.5 Satisfaction Guarantee: Fishbowl provides a satisfaction guarantee to all customers subject to the following conditions: Customer must purchase and complete an on-site training. Customer must purchase a minimum two (2) day training to be conducted at customer’s facility. All training must be conducted by an employee(s) of Fishbowl. In order for the above described training to qualify for the Fishbowl Satisfaction Guarantee, the training must be purchased either at the time of initial software purchase or within thirty (30) days from the date of initial software purchase. All training must be completed within 180 days from the date the training is purchased. Customers electing to purchase training must actively use the Fishbowl software for 60 days after the final day of training. Following the expiration of the 60 day satisfaction guarantee period, customers will have (30) days to return the software in accordance with the previously stated return policy (section 1.3 of Order Form and Sales Agreement). The satisfaction guarantee is limited to software purchased from Fishbowl and specifically excludes all services, training, custom reports, plugins, custom services of any type, and hardware purchased from Fishbowl. This also excludes all software and services provided by a third-party company, even if this item is sold on the Fishbowl Order Form.
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 nondelivery, 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 by following the "equipment 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. 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.
4.3 Customer must send to Fishbowl via email, a request for cancellation of Hosted Services. The email must be sent to RMA@fishbowlinventory.com and must be received fifteen (15) days prior to the scheduled payment.
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.
5.6 Entering information into the Fishbowl database in any way not authorized by Fishbowl in writing will void your support contract.
6. Miscellaneous Terms
6.1 Clerical errors or omissions on the Order Form are subject to correction by Fishbowl. For all other purposes of this agreement, purchase date (as shown on the Order Form) 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.
[ End of General Terms and Conditions ]
Fishbowl Solutions, LLC
Fishbowl Solutions, LLC (Fishbowl) SOFTWARE LICENSE ADDENDUM
For Fishbowl and/or for all products and services created and performed by Fishbowl Fishbowl Solutions, LLC (Fishbowl) and the Customer identified in the accompanying Order Form (Licensee) agree as follows with respect to any software identified in the Order Form, in addition to the general terms and conditions accompanying such Order Form
- Maintenance and Support; Training
- Restricted Use
- Term and Termination
- Limited Warranty
- General Provisions
- Intuit QuickBooks Enterprise License and Solution Provider of Record Authorization
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: 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. 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 Maintenance and Support 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 Fishbowl Solutions, LLC, 580 E. Technology Ave., Building C, Suite 1300, Orem, Utah 84097.
5. Term and Termination
5.1 Licensee may terminate this Agreement for any reason upon notice to Fishbowl, 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 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 6.1. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.
6.2 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 EXPRESSTECH 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, POI, BARBAQUE, JFREE CHART, JCOMMON, JXBROWSER, JAVA, MYSQL
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.
7.3 Fishbowl may collect and use technical information gathered as part of its maintenance, support, and training services, only for the purpose of improving its products and services. The data collected will not be sold to any third parties.
8. Intuit QuickBooks Enterprise License and Solution Provider of Record Authorization
8.1 The below section applies to users that would like to receive special pricing on QuickBooks products and:
- Owns an active QuickBooks Enterprise license; and,
- Does not have an existing relationship with an Intuit Solution Provider of Record (“SPOR”)
8.2 This is to formally request that Fishbowl be given access to our QB license information as our Intuit Solution Provider of Record for the purposes of receiving special pricing for renewals on QuickBooks licensing as well as installation and troubleshooting by certified Fishbowl partners. The SPOR is your Intuit-certified contact for services outside of technical support already provided with your Full-Service Plan (FSP). I understand that my Solution Provider of Record is now authorized as my primary Intuit-certified local contact and at my discretion will be responsible for servicing my account.