REVENTION TERMS AND CONDITIONS
THESE TERMS AND CONDITIONS (“TERMS”) ARE APPLICABLE TO ALL AGREEMENTS BETWEEN YOU AND THE COMPANIES LISTED BELOW AND WILL AFFECT YOUR RIGHTS AND OBLIGATIONS.
1. These Terms and Conditions (“Terms”) are an integral part of and are incorporated by reference into any and all agreements between you and Revention, LLC (“Company”) and, where the context allows, any and all agreements between you and any affiliates of the Company.
2. In addition to the Terms, the contractual agreement between you and the Company includes quotes, bids, delivery/installation forms, service contracts, subscription agreements, software license agreements, software maintenance agreements, leases, loans, processing agreements, cash advance agreements, promissory notes, security agreements financing statements or other contracts that are either issued or signed by an authorized officer or agent of the Company and countersigned or otherwise accepted by you (collectively the “Agreement”). However, the Agreement does not include any promotional, marketing, advertising, product and similar materials.
3. The Terms may not be waived or modified except in a written document signed by an authorized officer of the Company, but may, and shall, be superseded if, and when, the Company publishes new, amended or revised Terms at www.revention.com/terms. The Terms shall control in the event of a conflict with any other provisions or parts (typewritten or handwritten) of an Agreement unless the Terms or such other provisions specifically state or indicate to the contrary.
4. You affirm and agree that: (a) no officer, employee, representative or agent of the Company has made or entered into any oral agreement, promise, or understanding with you concerning the subject of the Agreement; (b) you have not relied, and will not rely, upon any oral statements, promises or representations made to you by the Company or its officers, employees, representatives or agents in entering into the Agreement; and (c) you have not relied, and will not rely, upon any promotional, marketing, advertising, product and similar materials in entering into the Agreement.
5. The Company shall, at all times, have the right to not proceed, to delay, or to terminate the Agreement, or the delivery of any equipment, hardware, software, programming, and all other products and services (“Products”) by reason of your being the subject of any bankruptcy or insolvency proceeding, your breach of any of the terms of the Agreement, your assignment of the Agreement with advance written approval, the pendency of any legal proceedings against you, or your failure to meet any other reasonable requirements established by the Company.
6. Unless specifically stated otherwise in the Agreement, all down payments made by you are non-refundable.
7. A delivery and installation date for all Products must and shall be agreed upon by you and the Company. Once set, you may reschedule a delivery and installation date once if you provide more than 15 working days of notice of the requested rescheduling, if a new date is mutually agreed upon at the time of the request, and if you agree to and do reimburse the Company for all costs and expenses that the Company incurred, and is unable to recoup, in connection with having prepared for the initial date. Further, you shall pay, in full, for any Products that have already been shipped at the time of the rescheduling. If you cancel or reschedule an installation a second time, or with less than 15 working days of notice, you must pay a cancellation/rescheduling fee of $500, plus you must reimburse the Company for all costs and expenses that the Company incurred, and is unable to recoup, in connection with having prepared for the cancelled date. The Company shall endeavor to deliver Products on or before the scheduled delivery and installation date, but shall not be liable for any delay, or any damages caused by any delay, in the delivery and installation of any Products that are not caused solely by the Company. And, if a delivery or installation delay is caused solely by the Company, then you may (and your sole and exclusive remedy shall be to) terminate the Agreement in writing within two days of the delivery and installation date and obtain a refund of any payment already made by you for the undelivered and uninstalled Product(s) in question. If you request emergency, urgent or expedited delivery and installation of any Products, and the Company complies, additional charges may be imposed by the Company, including, without limitation, an expediting fee of up to 5% of the quoted cost of the Products, plus reimbursement of all travel, shipping and other costs and expenses incurred by the Company in satisfying your request.
8. You affirm and agree that you have been advised of and understand the importance of ensuring that each of the following conditions are satisfied, and that you, not the Company, are and shall forever be solely responsible for ensuring that each of the following conditions are satisfied before the agreed upon delivery and installation date: (a) that the installation location has all necessary cabling, data lines, connections, utility (electrical, internet and telephone) services, tables, counters, shelving, brackets, wall mounts, fixtures suitable for placement of and sufficient to meet the needs of the Products; (b) that all necessary permits, fees, inspections, and the like have been secured for delivery and installation of the Products at the installation location; (c) that you have secured sufficient insurance to cover both you and the Company against claims by employees and others that are related, in whole or in part, to delivery and installation of the Products; (d) that appropriate measures have been put in place to secure and prevent unauthorized access to both the Products to be delivered and installed, and all data that will pass through, or be generated or stored by, such Products; (e) that appropriate measures have been put in place to properly and securely back up and archive data from the Products on a periodic basis; (f) that all Products are properly and adequately protected from damage due to environmental conditions, electrical surges, mishandling, vandalism, and other causes; and (g) the Company receives such information and data as it deems necessary to enable it to program, integrate, deliver and install the Products, to train you and your staff, and otherwise comply with its obligations under the Agreement.
9. If any Product is shipped to the installation location via a commercial shipper, all costs of such shipping, and all risk of loss, shortage or damage to the Products once the Products are placed into the hands of the shipper, shall be borne solely by you; even if the Company initially pays for such costs. Upon delivery of the Products you are deemed to have inspected and accepted them to be in good working order, and to have waived any claim for loss, shortage or damage concerning the Products, unless you deliver written notice to the contrary within 2 days after delivery of the Products, specifying the Product(s) at issue.
10. Until such time as you pay for the Products in full, the Company shall retain all rights of ownership, possession and control over the Products.
11. All software Products (including programming) that are provided to you by the Company belong exclusively to the Company, and are licensed to you for you to use for so long as you pay all sums due and owing to the Company, and for so long as you are not otherwise in breach or default under the Agreement, or under any other agreement between you and an affiliate of the Company or you and any third party software developer whose software is included as a part of the Products. The license is nonexclusive, nontransferable, and revocable by the Company, at its discretion, and only entitles you to use the software Products in the location identified in the Agreement, as contemplated by the Agreement, and subject to the terms of the Agreement and any other agreements or licenses applicable to the Products.
12. You may not reverse-engineer, decompile, modify, or disassemble any software Products, nor may you allow others to do so. You may not share or disclose any software Products with any third parties (including other vendors and service providers), nor may you allow such third parties to gain access to or to make use of such Products, without first obtaining the Company’s express written permission. You may not continue to use any software Products after your license to do so has been revoked or terminated. Should you engage in any of these prohibited actions, the Company shall be entitled, in addition to all other remedies available to it, to: (a) disable or remove all such software Products; (b) all revenue received by you as a result of such use of such software Products; and (c) an amount equal to all revenue received by any third party as a result of their access to or use of any software Products.
13. Except as otherwise expressly provided for in the Agreement; (a) the Company does not warrant the performance or suitability of any Products; (b) you will not receive any software Product upgrades or enhancements; (c) you must pay the prevailing rate for any and all post-installation support that the Company may provide to you, including, but not limited to, 24/7 remote telephone support and on-site support; and (d) you are, and shall at all times, remain responsible for specifying and enforcing business rules, data and other information required to modify the programming of any software Product to support your business operations.
14. You acknowledge the Products may, when used by you, transmit, contain or store information or data belonging to you and to your customers that is confidential, proprietary, private or otherwise worthy of protection, and that third parties may attempt to obtain. You further acknowledge and agree that the Company is not responsible for, and that you are solely responsible for ensuring that such information and data is properly and effectively protected and secured. In this regard, you specifically acknowledge and agree that: (a) you are solely responsible for properly and securely backing up, archiving and storing information and data from the system; (b) the system is designed to be capable of being accessed remotely by telephone, internet and other means, and you are solely responsible for implementing, maintaining and monitoring security protocols, methods and systems to prevent, detect and remedy unauthorized attempts to access the system; and (c) you are solely responsible for using the software Products and the overall system in compliance with the Payment Card Industry Data Security Standards (“PCI-DSS”) and Payment Application Data Security Standards (“PA-DSS”).
15. Except as otherwise expressly provided for in the Agreement, all new hardware Products are sold with a 1-year manufacturer’s warranty. Upon the expiration of such warranty, or in the absence thereof, the Company shall automatically enroll the Products in an extended warranty program, and you shall pay the then prevailing rate in effect for such warranty (which may change from time to time) for each month in which you continue to use the Products. Under such program, the Company shall make reasonable efforts to repair or replace any hardware Product, or any part thereof, that it determines, in its sole discretion, to be defective in material or workmanship. Such warranty service shall be provided at no charge to you except for labor charges; which shall be charged at the then-prevailing rate for any labor charges (including travel) for warranty service performed at Customer’s request outside of the foregoing time periods. Warranty service is available Monday – Friday from 8:00 AM to 5:00 PM, excluding holidays. Local onsite labor during the warranty period will only be provided to customers operating within a 75-mile radius of a Company office, all others will be managed using remote access and standard freight carriers. If you are not in breach or default under the Agreement, you may elect not to participate in the program for specific hardware by notifying the Company, in writing, of your election, at any time within 30 days after you sign an Agreement to acquire such hardware. Absent a timely and proper election and notice not to participate, you are deemed to have agreed to participate and to have agreed to pay the monthly fees charged for participation in such program, and you authorize the Company, at its option, to collect the monthly fee from any payments that may be due to you from any banks that processes your credit card transactions.
16. In the absence, or upon the expiration, of any software support provided to you under an Agreement, the Company may automatically enroll you in a support program. The support program lasts for so long as you use the software, and you will be charged the prevailing rate that is in effect for such program, which may change from time to time. If you are not in breach or default under an Agreement, you may elect not to participate in such program for specific hardware by notifying the Company, in writing, of your election, at any time within thirty days after you sign an Agreement to acquire the right to use such software. Absent a timely and proper election and notice not to participate, you are deemed to have agreed to participate and to have agreed to pay the monthly fees charged for participation in such program, and you authorize the Company, at its option, to collect the monthly fee from any payments that may be due to you from any banks that processes your credit card transactions.
17. If you receive a buyback discount, or other discount that is valued at 10% or more of the total amount due under an Agreement, then you will be enrolled in the Platinum Program, and thereby become eligible for discounts, subsidies and special offers on certain Products; special merchant services and financing offerings; and other special product and service offerings from the Company and its vendors. Upon enrollment, however, you must accept credit and debit card transactions from your customers, and you must process all of your credit and debit card transactions with a payment processor that is referred to you, and approved, by the Company. Enrollment in the Platinum Program is for an initial term of 5 years, and 2 additional years shall be automatically added to the then current term whenever it has only 1 year remaining and neither party has given written notice of no-renewal to the other party. Additionally, all other existing agreements between you and the Company, between you and the any of the Company’s affiliates, and between you and any third party payment processor to which you were referred or signed up through or by the Company, or its affiliates, shall be automatically renewed for identical terms and renewals so that all such agreements shall be coterminous in duration.
18. The Company and its affiliates are intended third party beneficiaries of any processing agreements between you and any third-party payment processors to which you were referred or signed up through or by the Company, or its affiliates. Should you terminate any such processing agreement prior to the agreed upon term thereof, and any extensions of that term, either under the processing agreement or under any Agreement to which these Terms are a part, you shall pay the Company an amount equal to the total payments that it, and its affiliates, would have received, in monthly referral, residual, and other fees, commissions and payments from such processor in connection with your credit card transactions through the then remaining term of such processing agreement, including any renewals and/or extensions. For the avoidance of doubt, such fees, commissions and payments shall be measured by the average monthly fees, commissions and payments received by the Company, and its affiliates, from such processor in connection with your credit card transactions during the 12 months (or fewer, if less than 12 months of history exist) of such processing prior to the termination.
19. Payments owed by you to the Company, its affiliates, and any third party that have assigned to the Company all or any part of your payment obligation to that third party, are due payable at the Company’s office located at 1315 West Sam Houston Parkway North, Suite 100, Houston, Texas 77043, and shall be timely made by you. Should you fail to timely pay any amount that is due and owing to the Company, or should you otherwise breach, be in default under, or prematurely terminate any Agreement with the Company, its affiliates, or any third party mentioned above, then: (a) your right to use all Products shall be immediately and automatically terminated and revoked; (b) the Company, or its affiliates, may, and are hereby authorized to, enter any premises where the Products are located and take immediate possession thereof, without notice to you, and without a need to make a demand or obtain any court order; (c) you shall immediately owe to the Company or its affiliate, as the case may be, an amount equal to the revenue that the Company and its affiliates would have received under all Agreements between you and the Company, its affiliates or any third party mentioned above, as measured by the average of the actual monthly revenues received by the Company and its affiliates under each such Agreement, multiplied by the number of months remaining in the then current term of each such Agreement; (d) the Company, or its affiliates, may charge, and you shall owe, a monthly rental fee for your continuing use of the Products; and (e) the Company, and its affiliates, may, and are hereby authorized to, collect all such sums, and any future sums that you may owe, by any means available, including: (i) from payments or receivables that are due to you from third parties, including banks, financial institutions, and card transaction processors; and (ii) by an automated clearinghouse transaction with any bank or financial institution at which you have an account. In this regard, you hereby instruct and authorize all third parties to pay the Company, and its affiliates, from any payments or receivables that may be due to you and you expressly release and hold all such third parties harmless for acting in conformity with this authorization. You further agree that this payment is a reasonable and good faith calculation of the damage that would be caused by any such failure to timely pay, breach, default, or premature termination of any Agreement, and you grant to the Company, and its affiliates, a security interest in all Products that are provided to you, as well as in all other accounts, receivables and other assets described above, to secure your obligations referenced above, and you agree that the Company, and its affiliates, may take such actions to perfect and protect such interest as they deem necessary and appropriate.
20. All Agreements, and any licenses conferred thereby, are executory in nature within the meaning of the US Bankruptcy Code, and your status as a debtor in any bankruptcy proceeding shall not preclude the termination of your right to use any Products, including software and programming, upon your default. The foregoing rights and remedies are not exclusive, and the Company, and its affiliates shall also have, and may exercise at any time, all other rights and remedies that are or may be available to them at law or in equity, including, but not limited to, the right to obtain temporary and permanent injunctive relief.
21. Should the Company, or a Company affiliate, take any action to enforce their rights under any Agreement, then you shall, upon demand, reimburse the Company for all expenses that it incurs as a result thereof, including, without limitation, attorneys’ fees and court costs.
22. If any Agreement requires the Company to provide training, the Company’s sole obligation shall be to provide a qualified instructor (in the Company’s sole judgment) to provide such training to your employees for the designated number of training hours. The Company does warrant or guarantee that, after such period of training, the trainees shall be certified or able to use or operate the Products properly or efficiently. At your request, the Company may provide additional training beyond the number of hours stated in the Agreement; with such training provided, and to be paid for by you, at the Company’s then-prevailing rates for training.
23. You shall remain solely responsible for determining, installing, inspecting and supplying all necessary electrical service and all ancillary equipment for all Products, and for providing environmental and operating conditions that are suitable for all Products, and the Company shall have no obligation or responsibility with respect to such matters, including inspecting or certifying any aspect of the electrical service or any ancillary equipment.
24. For software Products that are developed by it, the Company warrants, and only warrants, that: (a) the software will, at the time that the installation is complete, conform to the Company’s specifications and will function substantially as described in the written materials provided by the Company to you; and (b) should the software Product fail to conform to such specifications at the time of installation, or fail to function as warranted immediately above at the time of installation, then the Company shall provide, and your sole remedy shall be to accept, either a replacement software Product or a refund; whichever the Company shall elect to provide in its sole discretion. The foregoing warranty does not extend beyond the date of the installation.
25. Except as otherwise expressly stated herein, all Products provided by the Company are provided “as is” and without any express or implied representations, guarantees, or warranties. YOU FURTHER ACKNOWLEDGE THAT:
a. THIS IS THE ONLY WARRANTY MADE AS TO THE PRODUCTS PROVIDED BY THE COMPANY, AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND USE.
b. IN NO EVENT SHALL THE COMPANY, ITS AFFILIATES, OR ITS OR THEIR EMPLOYEES, BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, OR OTHER INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, ECONOMIC OR PUNITIVE DAMAGES (INCLUDING THOSE ASSOCIATED WITH IMPROPER, UNDER-CALCULATED OR UNDER-ACCRUED TAXES OR GOVERNMENT LEVIES).
c. THE COMPANY SHALL NOT BE RESPONSIBLE FOR ANY DAMAGERS, COSTS OR OTHER LIABILITY ASSOCIATED WITH ANY LOSS OR INTERCEPTION OF DATA OR INFORMATION BELONGING TO YOU OR YOUR CUSTOMER(S) OR ANY FAILURE BY ANY PRODUCTS TO PROCESS CREDIT CARD TRANSACTIONS OR TO SATISFY COMPLIANCY REQUIREMENTS FROM THE CREDIT CARD INDUSTRY.
d. YOU ARE SOLELY RESPONSIBLE FOR IMPLEMENTING AND ENFORCING SUCH SECURITY POLICIES AND PROCEDURES FOR THE USE OF COMPUTERS AND COMPUTER SYSTEMS THAT ARE NECESSARY TO PREVENT SECURITY BREACHES, VIRUSES, MALWARE AND OTHER SIMILAR THREATS, INCLUDING THOSE ASSOCIATED WITH THE USE OF THE INTERNET.
26. You affirm and agree that you have knowingly waived your rights under the Texas Deceptive Trade Practices & Consumer Protection Act found at Section 17.41 et seq. of the Texas Business & Commerce Code, and any similar laws enacted by any other governmental entities.
27. You shall indemnify, and hold the Company, and its owners, directors, officers, employees and agents harmless from and against any and all claims, demands, actions or the like brought by third parties, in law or in equity, for damages, harm, expenses, losses, costs or other relief arising out of, or connected in any way, with any Products sold or supplied to you by the Company, including your use of such Products. Your indemnity obligation shall apply notwithstanding any alleged, or actual, negligence, gross negligence, contract breach or other wrongdoing or misconduct on the part of the Company or any other indemnified person or entity.
28. Except for such other remedies as are otherwise expressly authorized herein, you and the Company agree to resolve any claim, dispute or controversy, whether in contract, tort or otherwise (“claim”), arising out of or related to any Agreement to which these Terms and Conditions apply by first providing the other party with written notice of the claim, and then engaging in face to face negotiations in Harris County, Texas between persons fully authorized to resolve the claim on behalf of the parties. If such negotiations are unsuccessful, the parties shall next attempt to resolve the claim by engaging in mediation, utilizing a mutually agreeable mediator, in Harris County, Texas; unless all parties agree to forego mediation. In the event the parties are unable to resolve the claim through negotiation and mediation within a reasonable period of time after written notice of the dispute exists (such time not to be less than 60 days), then either party may file a lawsuit, but it is expressly agreed that: (a) any such lawsuit may only be filed in the state or federal district courts located in Harris County, Texas; (b) both parties herby consent to the exclusive jurisdiction and venue of such court, and agree to submit themselves to the jurisdiction of such court; (c) both parties hereby waive any right to challenge venue; (d) both parties expressly waive any right to pursue a class action; and (d) both parties expressly waive any right to a jury trial.
29. The Company may delay, defer or cancel its performance of its contractual obligations in the event of a war, riot, fire, explosion, flood, accident, sabotage, vendor disruption, inability to obtain materials or equipment, change of law, Act of God or other cause beyond its reasonable control.
30. Unless otherwise indicated, all notices required or allowed hereunder shall be in writing and delivered by email, by commercial courier or by US mail with a delivery receipt.
31. The rights and duties of both you and the Company, or its affiliates, under any Agreement to which these Terms apply shall be governed by, and determined under, the Laws of the State of Texas, without regard to any conflicts of laws principles. Further, because some, or all, of the performance by both you and the Company, or its affiliates, of various duties under such Agreements shall occur in Harris County, Texas (e.g., payment of all sums due and payable, pulling Product from stock), jurisdiction and venue for any dispute arising out of such Agreement will lie solely and exclusively with the federal and state district courts located in Harris County, Texas.
32. You may not assign your rights and obligations under any Agreement between you and the Company without the express written consent of the Company. Moreover, if any Agreement between you and the Company is assigned, it shall be binding upon and inure to the benefit of any successors or assigns. You acknowledge and agree that the Company is permitted to, and may, assign or utilize subcontractors to perform certain of its obligations under any Agreement.
33. If a court of competent jurisdiction holds any provision of any Agreement to be illegal, invalid, or unenforceable, the remaining provisions shall remain in full force and effect. No waiver of any breach of any provision of any Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof. No waiver shall be effective unless made in writing and signed by the waiving party.
34. Your agreement to these Terms is conclusively presumed from your acceptance of any Products provided to you under any Agreement.
REVENTION SOFTWARE LICENSE AND SOFTWARE MAINTENANCE AGREEMENT
This Software License and Software Maintenance Agreement (“License”) is entered into by and between Revention, Inc. (“Revention”) and the Customer identified on the System Purchase Agreement to which this License is attached (“Licensee”).
1. GRANT OF LICENSE
Revention hereby grants to Licensee, and Licensee hereby accepts from Revention, a non- exclusive, non-transferrable (except to authorized transferees) license to use certain computer program(s) and documentation therefore (the program(s) and documentation being collectively referred to as the “Software”), which is specified on the Revention System Purchase Agreement entered into by and between Revention and Licensee on this date (the “System Purchase Agreement”). Such License shall be subject to all of the terms and conditions set forth herein.
2. USE OF SOFTWARE AND OTHER OBLIGATIONS
Licensee shall have the right to use the Software only for the uses and applications, in the systems and configuration, and at the location(s), specified in the System Purchase Agreement. The Licensee may copy the Software once for back-up or archival purposes in support of the licensed use of the Software. One USB License Key shall be provided to Licensee. If the USB License Key becomes non-functional, Licensee shall purchase an exchange USB License Key upon the return of the non-functioning USB License Key. If the USB License Key is lost or destroyed, Customer must purchase another full software license to use the Software as provided in this Agreement. Upon termination or discontinuation of the Software use, Licensee must return the USB License Key to Revention. Revention will issue a refund of ten dollars ($10) for each USB License Key returned pursuant to this License. Licensee may not use, copy, distribute, sub-license, lease, sell, or transfer the Software in whole or in part; merge the Software with other programs; or modify the Software in whole or in part, except in strict compliance with the foregoing license. The foregoing prohibitions include, without limitation, a prohibition against translating, decompiling, disassembling, or creating derivative works of the Software.
This License shall remain in effect until terminated. Licensee may terminate this License at any time by returning the Software as described below. Revention shall be deemed to have terminated this License in the event Licensee fails to comply with any of the terms and conditions of this License. This License shall also terminate in the event Licensee (a) fails to make payment, in whole or in part, for the Solution and Installation in which the Software is an integral part or (b) materially breaches the Revention System Purchase Agreement. Revention’s determination that Licensee has failed to comply with the terms and conditions of this License shall be binding upon the Licensee. Revention reserves the right to terminate this License in cases where in its judgment, Licensee has engaged in abusive language and/or conduct towards Revention. Any fees paid by Customer shall not be refundable because of any termination.
4. MAINTENANCE AND SUPPORT
The following provides the Licensee with information as to the responsibilities of both Licensee and Revention on the provisions of the Revention Software Maintenance Agreement (“RSMA”). No obligation of Revention to provide Maintenance and Support shall survive termination of the License granted herein.
a) Annual Software Maintenance Agreement: Licensee understands that subscribing to the RSMA is not mandatory. No refunds will be made for any unused portion. All software maintenance agreements will automatically renew when expired, unless the customer submits a signed cancellation to Revention thirty (30) days from contract expiration date. Software Maintenance Agreement fees will be billed on the first of each month based upon the agreement initiation d Services do not always begin on Revention’s scheduled billing dates. In addition to Licensee’s regular monthly fee, Customer’s first payment may include prorated charges based upon the start date for Customer’s monthly services.
I. Rates Outside of an Active Software Maintenance Agreement: Customers without an active Revention Software Maintenance Agreement can use Licensor’s pay-per-call servi Customers will be charged an hourly rate, 8:00 AM to 5:00 PM Central Time, Monday through Friday, excluding holidays.
b) Software Maintenance and Upgrades: Only customers with an active RSMA will be eligible for free software upgrad To receive upgrades, customers with a non-active or lapsed RSMA will be charged a fee of four hundred ninety-five dollars ($495) per workstation. Software maintenance and upgrades will occur annually to the extent an upgrade is issued by Revention. Revention shall contact each customer with an active support agreement to schedule an upgrade by a Revention employee. Customers with new or renewed contracts will receive the first update available after their contract initiation date. Scheduled software maintenance and upgrades are based upon the availability of a remote connection to the location.
c) Technical Support Coverage: Support includes but is not limited to hardware support on items purchased from Revention, Returned Merchandise Authorization (“RMA”) assistance, and assistance with Revention software issues. Customer service is provided twenty-four (24) hours a day, seven (7) days a week. The Revention Support Department is skilled in the use of Revention software only. If Customer has software manufactured by another vendor, such as Windows, Office, et then Licensee should contact that manufacturer for assistance. If Customer is purchasing a complete system from Revention, which is both hardware and software, then Customer’s system is configured for operation in accordance with Revention specifications. Should licensee install additional non-Revention manufactured product on the computer, this may be detrimental to the operation of the Revention software. Be aware that software installation programs often alter important system files automatically. Licensee assumes all responsibility for making sure that the new software will not change Customer’s configuration and/or knowing how to accommodate all installed software.
d) Phone Training Services: Customer agrees that the support program is assistance with Revention software issues; it is not designed as a substitute for initial system or new employee training. Customer also agrees Revention will not train subsequent employees over the phone; Customer may purchase training for these replacement empl Inventory training is available to Customer at an additional cost, is based on availability and must be scheduled seven (5) to ten (7) business days in advance.
e) Supported Hardware: Support will be provided only for hardware purchased directly from Revention. Based on the level of complexity, Customer may incur additional charg Hardware re-installation and configuration will be quoted on a case-by-case basis.
f) Power Issues: When using sensitive electronic equipment such as computers, Customer needs to be aware of the consequences of operating other electronic devices and appliances within the same electrical circuit. For example, but not limited to, microwave ovens, refrigerators, copiers, shrink-wrap machines etc. These electrical devices and appliances may cause loss of data and in some cases, physical failure of Customer’s computer system. Revention assumes no responsibility for any such loss arising from any such probl Therefore, Revention recommends:
i. A dedicated circuit for each station, installed by an electrician of the customer’s choice prior to the Revention installation date; and
ii. A power conditioner for every hardware component to control voltage irregularities.
If a problem does occur because of a power issue, Revention will aid at its sole discretion to troubleshoot hardware malfunctions resulting from power irregularities. Additional charges may result for replacement equipment and services.
g) Third-Party Software: Should Customer install additional non-Revention manufactured product on the computer, this may be detrimental to the operation of Customer’s Revention softw Be aware that software installation programs often alter important system files automatically. Licensee assumes all responsibility for such installation and for ensuring that the new software will not affect operation of the Revention software. Revention does not provide support for third-party applications. Third-party software packages, other than those installed by Revention, void the Software Maintenance Agreement. Revention provides removal service of third-party software at an additional fee. Support will be provided only for hardware purchased directly from Revention. Re-Image service to restore the Revention software is available at an additional charge; including a two-hour minimum fee. If removal of the third-party software is not possible and the machine must be re-imaged, customer will be required to ship the damaged machine to Revention. All shipping charges are the responsibility of the customer.
h) Virus Detection Assistance: Virus detection services are available at an additional charge 8:00 AM to 5:00 PM Central Time, Monday through Friday, excluding holidays. Virus detection assistance is based on availability. While the Internet can be accessed through the Revention system in some operating modes, Revention does not recommend that the Revention POS be used for any purpose unrelated to the functioning of the Revention software. Revention provides no warranties of any kind with respect to files downloaded from or through any source other than directly from Revention. ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED. In addition, Customer is responsible for any incidental, consequential, or special damages resulting from a system virus or credit card data breach
I) Application Documentation: Documentation is available at no charge to customers with an active RSMA. Upon request documentation and supplemental materials will be provided with each annual software update.
j) Wireless Configuration: Revention does not provide wireless configuration services and is not responsible for any adverse issue resulting from wireless ac Support required to restore the Revention application because of wireless configuration changes by the Customer is available at an additional charge during regular business hours.
k) Security, Firewall, and Router Configuration: Security, firewall, and router configuration assistance is limited to port forwarding assistance at the time of installation only. Revention support technicians can perform port scans to determine if a device is restricting Internet acces If this is the case, Revention will provide basic connectivity troubleshooting. If Revention is unable to resolve the issue, the customer must contact his or her Internet Service Provider for additional assistance. Router port forwarding configurations are available on an appointment basis and hourly fees apply.
5. RETURN OF SOFTWARE UPON TERMINATION
Upon termination of this License, the Licensee agrees to return the Software, together with the documentation and USB license keys and any copies thereof to Revention.
6. DISCLAIMER OF WARRANTY
REVENTION MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF FITNESS OR MERCHANTABILITY, REGARDING OR WITH RESPECT TO THE SOFTWARE, SUBJECT TECHNOLOGY OR LICENSED PRODUCTS. THIS INCLUDES, WITHOUT LIMITATION, DIRECT LOSS, LOSS OF BUSINESS OR PROFITS (WHETHER OR NOT THE LOSS OF SUCH PROFITS WAS FORESEEABLE, AROSE IN THE NORMAL COURSE OF THINGS OR CUSTOMER HAS ADVISED THIS COMPANY OF THE POSSIBILITY OF SUCH POTENTIAL LOSS), DAMAGE CAUSED TO CUSTOMER’S COMPUTER, COMPUTER SOFTWARE, SYSTEM AND PROGRAMS AND THE DATA THEREON OR ANY OTHER DIRECT OR INDIRECT, CONSEQUENTIAL AND INCIDENTAL DAMAGES. THE SOFTWARE PROVIDED HEREUNDER IS PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTY WHATSOEVER, EXPRESS, IMPLIED, OR STATUTORY.
7. LICENSEE’S RESPONSIBILITY
Licensee assumes all responsibility for the selection of the Software to achieve Licensee’s intended results, and for the use and results obtained therefrom.
8. COPYRIGHT, PATENT, TRADEMARKS
Licensee acknowledges and consents to the validity of Revention’s trademarks, trade names, copyrights, patents, and trade secrets. Licensee shall, in good faith, take all steps that it may reasonably be requested to take by Revention to secure and preserve Revention’s right and title to said copyrights and patents for the Software. Licensee shall not provide or otherwise make available the Software, including all flow charts, logic diagrams, or source codes, in any form, to any other person without the express written consent of Revention. Use of the Revention logo or federally registered trademark is strictly prohibited.
9. U.S. GOVERNMENT RESTRICTED RIGHTS
The Software and any accompanying materials are provided with Limited Rights and Restricted Rights. Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (b)(3) of the Rights in Technical Data – Noncommercial Items (Nov 1995) clause at DFARS 252.227-7013, set forth in subparagraph (b)(3) Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation clause at DFARS 252.227-
7014, or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 C.F.R. 52.227-19, as applicable. Contractor/manufacturer is Revention, Inc., 1315 W. Sam Houston Pkwy North, Suite 100, Houston, Texas 77043.
Licensee shall not assign the Software License to another party without the express written consent of Revention, whose consent will not be unreasonably withheld. If such consent is granted, the assignee shall be considered the Licensee hereunder for all purposes in the place and stead, and to the exclusion of the original Licensee.
11. OWNERSHIP OF SOFTWARE
Licensee has been granted a license to use the Software, but has not acquired any right, title, or interest in or to the Software whatsoever. Revention reserves all such legal and beneficial ownership in and to the Software, together with all modifications, updates, upgrades, enhancements, and improvements thereto, whether implemented by Revention, Licensee, or any third party. Licensee shall not have the right to (and Licensee agrees that it shall not) copy, reproduce, market, sell, transfer, translate, decompile, disassemble, modify, adapt, reverse engineer, distribute, or prepare derivative works of the Software, except as expressly authorized herein or as authorized by applicable law without possibility of waiver. Any third-party licensor of material evidenced by or embodied in the Software shall be a third-party beneficiary under this Agreement. “Intellectual Property Rights” includes, collectively, any patent, patent right, trademark, service mark, trade dress, logo, trade name, copyright, mask work, trade secret, confidential information, or other proprietary right. Licensee shall not, and shall not permit others, to remove, alter, deface or modify the proprietary rights, copyrights, trademark or similar notices contained in or on the Software.
12. SURVIVAL OF OBLIGATIONS
Licensee agrees that its obligations hereunder extend past the termination of this License until the information protected herein is in the public domain.
In the event that any one or more provisions contained in this Agreement should for any reason be held to be unenforceable, such enforceability shall not affect any other provision of the Agreement, but the Agreement shall be construed as is such unenforceable provisions had not been contained herein, and a new enforceable provision which accomplishes the interest of the severed provision as nearly as practicable shall be substituted therefor.
14. CONTROLLING LAW
The Parties agree that all the provisions of this Agreement and any questions concerning its interpretation and enforcement shall be governed by the laws of the State of Texas. The execution and delivery of this Agreement shall be deemed to be the transaction of business within Harris County, Texas, for conferring jurisdiction upon the courts located within said county. The Parties agree that any litigation arising out of this Agreement shall be brought only in the Federal or State courts located in Harris County, Texas and both Parties consent to the jurisdiction of said courts.
15. ENTIRE AGREEMENT; MODIFICATION
This License is the sole and exclusive agreement between Revention and the Licensee, and there are no other agreements, arrangement, or understandings, written or oral, between the parties, relating to the subject matter hereof. Revention reserves the right to modify this Agreement with ten (10) days prior written notice to Licensee. This License may not be otherwise amended or modified in any manner except by a duly authorized officer of Revention and may not be amended or modified by any dealer, distributor, agent, or other representative of Revention.
Licensor and Licensee are independent principals in all relationships and actions under and contemplated by this Agreement. This Agreement shall not be construed to create any employment, partnership or joint venture, or agency relationship between the parties.
17. FORCE MAJEUR
Neither party shall be liable for any failure to perform or for delay in performance of its obligations hereunder caused by circumstances beyond its reasonable control, including, but not limited to, communications systems failures or outages, fire, storm, flood, earthquake, explosion, lighting, riot, acts of vandalism, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restrictions, labor disputes, transportation embargoes, acts of God, acts of any government or agency thereof or judicial action. If such event lasts longer than thirty (30) days, either party may terminate this Agreement without further notice.