Legal | thecomputerguy

TCG End user license agreement

Read this EULA carefully, as it sets out the basis upon which we [TCG, The Computer Guy] license our services, hardware, software, and equipment for use.

By booking and utilizing our [TCG] services, you agree to be bound by this EULA. [If you do not agree to be bound by this EULA, you must [promptly] decline the service, and/or leave the shop/website/call/text.]

By leaving your equipment in the trust of TCG, you agree to be bound by the provisions of this EULA. [If you do not agree to be bound by this EULA, you must [promptly] decline the service, and/or leave the shop/website/call/text.]]

Before, and by, booking services in person, over the phone/text service, email service, or via our website, you give your expressed agreement to the provisions of this EULA.

By agreeing to be bound by this EULA, you further agree that you OR any person representing yourself OR other related parties will comply with the provision of this EULA.

AGREEMENT

1. Definitions

1.1 Except to the extent expressly provided otherwise, in this EULA:

"Charges" means [those amounts that the parties have, in writing or verbally, agreed shall be payable by the User to the Licensor in respect of this EULA]; [I.E. ticket estimates, time estimates, equipment estimates]

"EULA" means this end user licence agreement, including any amendments to this end user licence agreement from time to time;

"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including [failures of the internet or any public telecommunications network, hard drive failures, solid state drive failures, memory failures, power supply failures, mainboard failures, hardware failures, electronic failures, power surges and brownouts, malware attacks, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars]); TCG is NOT liable for ANY [Force Majeure Event or Events].

"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

"Licensor" means [[TCG, The Computer Guy, Justin Roane, of [2806 Staats Drive, tinyurl.com/computerguyhelp, http://jrthecomputerguy.wix.com/thecomputerguy,]] OR [[The Computer Guy, TCG], a company incorporated in Bartlesville, OK (registration number [registration number]) having its registered office at [2806 Staats Drive]]

"Licensor Indemnity Event" has the meaning given to it in Clause 13.1;

"Maintenance Services" means the [supply to the User] OR [application of service, hardware, software, equipment, support] OR [service, equipment, hardware, and software installation and support] of Updates and Upgrades;

"Minimum Term" means, in respect of this EULA, the period [of 12 months beginning on the Effective Date];

"Services" means any services that the Licensor provides to the User, or has an obligation to provide to the User, under this EULA;

"Software" means [any software provided, acquired, used, or utilized];

"Software Defect" means a defect, error or bug in the Software having [an adverse effect] OR [a material adverse effect] on [the appearance, operation, functionality or performance of the Software][, but excluding any defect, error or bug caused by or arising as a result of:

(a) [any act or omission of the User or any person authorised by the User to use the Software];

(b) [any use of the Software contrary to the Documentation by the User or any person authorised by the User to use the Software];

(d) [an incompatibility between the Software and any other system, network, application, program, hardware or software not specified as compatible in the Software Specification];

"Software Specification" means [the specification for the Software set out in the Documentation];

"Source Code" means [the Software code in human-readable form or any part of the Software code in human-readable form, including code compiled to create the Software or decompiled from the Software, but excluding interpreted code comprised in the Software];

"Support Services" means support in relation to [the use of services, software, equipment, and the identification and resolution of errors in the hardware, software, etc..., but shall not include the provision of training services whether in relation to the services, equipment, software, or otherwise];

"Term" means the term of this EULA, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2;

"Update" means [a hotfix, patch or minor version update to the Software];

"Upgrade" means [a major version upgrade of the equipment, hardware, or software];

"User" means [the person to whom the Licensor grants a right to use the Equipment, Hardware, and Software under this EULA]; and

"User Indemnity Event" has the meaning given to it in Clause 13.3.

2. Credit

2.1 This document was created using a template from SEQ Legal (http://www.seqlegal.com).

3. Term

3.1 This EULA shall come into force upon the Effective Date.

3.2 This EULA shall continue in force [indefinitely] OR [until [date]] OR [until [event]], subject to termination in accordance with Clause 15.

4. License

4.1 The Licensor hereby grants to the User from [the date of supply of the service, support, equipment, hardware, or software to the User][until [the end of the Term]] a [worldwide, non-exclusive] license to utilize said service, support, equipment, hardware, or software - subject to the limitations and prohibitions set out and referred to in this Clause 4.

4.2 The User may not sub-license and must not purport to sub-license any rights granted under Clause 4.1[without the prior written consent of the Licensor].

4.2 The User may sub-license the rights granted in Clause 4.1 to [any third party][ for the purposes of [hosting the Software and supporting the User's use of the Software in accordance with this EULA] only]. Any such sub-licence shall automatically terminate upon the termination of the licence in Clause 4.1.

4.3 Save to the extent expressly permitted by this EULA or required by applicable law on a non-excludable basis, any licence granted under this Clause 4 shall be subject to the following prohibitions:

(a) [the User must not [sell, resell, rent, lease, loan, supply, publish, distribute or redistribute] the support, service, equipment, hardware, or Software];

(b) [the User must not alter, edit or adapt the equipment, hardware, or software]; and

(c) [the User must not decompile, de-obfuscate or reverse engineer, or attempt to decompile, de-obfuscate or reverse engineer, the equipment, hardware, or software].

[additional list items]

4.4 The User shall be responsible for the security of copies of the Software supplied to the User under this EULA[ (or created from such copies)] and shall use all reasonable endeavours (including all reasonable security measures) to ensure that access to such copies is restricted to persons authorised to use them under this EULA.
4.5 ANY software, computers, or equipment unclaimed or not paid for will reside in the care of TCG until claimed or paid for. Any of these items not claimed or paid for within 30 days will become property of TCG for resale in order to recoup lost wages. If you do not agree with this condition, TCG cannot service your software, computers, or any equipment and you should leave the website immediately.
4.6 ANY unpaid ticket will incur a late fee of 10% or $25.00, whichever is more, after 30 days of lapsed payment. Additional late fees of 10% or $25.00, whichever is more, will be applied for each additional 30 day period of lapsed payment. The minimum allowed payment for ANY overdue ticket is 50% of that ticket's total.
4.7 ANY rescheduled or cancelled appointment without 24 hours prior notice will incur a charge of 1/2 hour labor per broken appointment, in addition to any same-day service charges.

5. Source Code

5.1 Nothing in this EULA shall give to the User or any other person any right to access or use the Source Code or constitute any licence of the Source Code of this website or any related software or websites.

6. Maintenance Services

6.1 The Licensor shall provide the Maintenance Services to the User [during the Term].

6.2 The Licensor shall provide the Maintenance Services [with reasonable skill and care] OR [in accordance with the standards of skill and care reasonably expected from a leading service provider in the Licensor's industry] OR [[specify standard(s)]].

6.3 The Licensor warrants to the User that the application of Updates and Upgrades to the Software by the Licensor will not introduce any Software Defects into the Software.

6.4 The Licensor warrants to the User that the application of Updates and Upgrades to the Software by the User in accordance with the instructions of the Licensor will not introduce any Software Defects into the Software.

6.5 The Licensor may suspend the provision of the Maintenance Services if any amount due to be paid by the User to the Licensor under this EULA is overdue, and the Licensor has given to the User at least [30 days'] written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.

6.6 [Either party may terminate the Maintenance Services by giving to the other party] OR [The Licensor may terminate the Maintenance Services by giving to the User] OR [The User may terminate the Maintenance Services by giving to the Licensor] at least [30 days'] written notice[ expiring on or at any time after the first anniversary of the Effective Date].

6.7 If the Licensor stops or makes a good faith decision to stop providing maintenance services in relation to the Software to its customers generally, then the Licensor may terminate the Maintenance Services by giving at least [90 days'] written notice of termination to the User.

6.8 If the Maintenance Services are terminated in accordance with the provisions of this Clause 6:

(a) the User must pay to the Licensor any outstanding Charges in respect of Maintenance Services provided to the User before the termination of the Maintenance Services;

(b) the Licensor must refund to the User any Charges paid by the User to the Licensor in respect of Maintenance Services that were to be provided to the User after the termination of the Maintenance Services; and

(c) the provisions of this Clause 6, excluding this Clause 6.8, shall cease to apply, but the other provisions of this EULA will continue notwithstanding such termination.

7. Support Services

7.1 The Licensor shall provide the Support Services to the User [during the Term].

7.2 The Licensor shall provide the Support Services [with reasonable skill and care] OR [in accordance with the standards of skill and care reasonably expected from a leading service provider in the Licensor's industry] OR [[specify standard(s)]].

7.3 The Licensor may suspend the provision of the Support Services if any amount due to be paid by the User to the Licensor under this EULA is overdue, and the Licensor has given to the User at least [30 days'] written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.

7.4 [Either party may terminate the Support Services by giving to the other party] OR [The Licensor may terminate the Support Services by giving to the User] OR [The User may terminate the Support Services by giving to the Licensor] at least [30 days'] written notice[ expiring on or at any time after the first anniversary of the Effective Date].

7.5 If the Support Services are terminated in accordance with the provisions of this Clause 7:

(a) the User must pay to the Licensor any outstanding Charges in respect of Support Services provided to the User before the termination of the Support Services;

(b) the Licensor must refund to the User any Charges paid by the User to the Licensor in respect of Support Services that were to be provided to the User after the termination of the Support Services; and

(c) the provisions of this Clause 7, excluding this Clause 7.5, shall cease to apply, but the other provisions of this EULA will continue notwithstanding such termination.

8. No assignment of Intellectual Property Rights

8.1 Nothing in this EULA shall operate to assign or transfer any Intellectual Property Rights from the Licensor to the User, or from the User to the Licensor.

9. Charges

9.1 The User shall pay the Charges to the Licensor in accordance with this EULA.

9.2 All amounts stated in or in relation to this EULA are, unless the context requires otherwise, stated [inclusive of any applicable value added taxes] OR [exclusive of any applicable value added taxes, which will be added to those amounts and payable by the User to the Licensor].

10. Payments

10.1 The Licensor shall issue [invoices] OR [an invoice] OR [receipts] OR [a receipt] for the Charges to the User [specify when issued].

10.2 The User must pay the Charges to the Licensor [in advance] OR [within the period of [30 days] following [the issue of an invoice in accordance with this Clause 10] OR [the receipt of an invoice issued in accordance with this Clause 10]].

10.3 The User must pay the Charges by [debit card, credit card, direct debit, bank transfer or cheque] (using such payment details as are notified by the Licensor to the User from time to time).

10.4 If the User does not pay any amount properly due to the Licensor under this EULA, the Licensor may:

(a) charge the User interest on the overdue amount at the rate of [8% per annum above the Bank of England base rate from time to time] (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or

(b) claim interest and statutory compensation from the User pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

10.4 If the User does not pay any amount properly due to the Licensor under this EULA, the Licensor may charge the User interest on the overdue amount at the rate of [2% per annum above the Federal Reserve base rate from time to time] (which interest will accrue daily until the date of actual payment and be compounded at the end of each named calendar month).[ The Licensor acknowledges and agrees that it shall have no right to claim interest or statutory compensation under the Late Payment of Commercial Debts (Interest) Act 1998, and that its contractual rights under this Clause 10.4 constitute a substantial remedy within the meaning of that Act.]

11. Warranties

11.1 The Licensor warrants to the User that it has the legal right and authority to enter into this EULA and to perform its obligations under this EULA.

11.2 The Licensor warrants to the User that:

(a) [the Software as provided will conform in all [material] respects with the Software Specification];

(b) [the Software will be supplied free from Software Defects[ and will remain free from Software Defects[ for a period of at least 12 months following the supply of the Software]]];

(c) [the Software will be supplied free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs]; and

(d) [the Software shall incorporate security features reflecting the requirements of good industry practice].

11.3 The Licensor warrants to the User that the Software, when used by the User in accordance with this EULA, will not breach [any laws, statutes or regulations applicable under English law].

11.4 The Licensor warrants to the User that the Software, when used by the User in accordance with this EULA, will not infringe the Intellectual Property Rights of any person [in any jurisdiction and under any applicable law].

11.5 If [the Licensor reasonably determines, or any third party alleges, that the use of the Software by the User in accordance with this EULA infringes any person's Intellectual Property Rights], the Licensor may[ acting reasonably] at its own cost and expense:

(a) modify the Software in such a way that it no longer infringes the relevant Intellectual Property Rights[, providing that [any such modification must not introduce any Software Defects into the Software and must not result in the Software failing to conform with the Software Specification]]; or

(b) procure for the User the right to use the Software in accordance with this EULA.

11.6 The User warrants to the Licensor that it has the legal right and authority to enter into this EULA and to perform its obligations under this EULA.

11.7 All of the parties' warranties and representations in respect of the subject matter of this EULA are expressly set out in this EULA. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this EULA will be implied into this EULA or any related contract.

12. Acknowledgements and warranty limitations

12.1 The User acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this EULA, the Licensor gives no warranty or representation that the Software will be wholly free from defects, errors and bugs.

12.2 The User acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this EULA, the Licensor gives no warranty or representation that the Software will be entirely secure.

12.3 The User acknowledges that the Software is only designed to be compatible with that software specified as compatible in the Software Specification; and the Licensor does not warrant or represent that the Software will be compatible with any other software.

12.4 The User acknowledges that the Licensor will not provide any [legal, financial, accountancy or taxation advice] under this EULA or in relation to the Software; and, except to the extent expressly provided otherwise in this EULA, the Licensor does not warrant or represent that the Software or the use of the Software by the User will not give rise to any legal liability on the part of the User or any other person.

13. Indemnities

13.1 The Licensor shall indemnify and shall keep indemnified the User against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the User and arising directly or indirectly as a result of any breach by the Licensor of [this EULA] OR [[specify provisions]] (a "Licensor Indemnity Event").

13.2 The User must:

(a) upon becoming aware of an actual or potential Licensor Indemnity Event, notify the Licensor;

(b) provide to the Licensor all such assistance as may be reasonably requested by the Licensor in relation to the Licensor Indemnity Event;

(c) allow the Licensor the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Licensor Indemnity Event; and

(d) not admit liability to any third party in connection with the Licensor Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Licensor Indemnity Event without the prior written consent of the Licensor,

[without prejudice to the Licensor's obligations under Clause 13.1] OR [and the Licensor's obligation to indemnify the User under Clause 13.1 shall not apply unless the User complies with the requirements of this Clause 13.2].

13.3 The User shall indemnify and shall keep indemnified the Licensor against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Licensor and arising directly or indirectly as a result of any breach by the User of [this EULA] OR [[specify provisions]] (a "User Indemnity Event").

13.4 The Licensor must:

(a) upon becoming aware of an actual or potential User Indemnity Event, notify the User;

(b) provide to the User all such assistance as may be reasonably requested by the User in relation to the User Indemnity Event;

(c) allow the User the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the User Indemnity Event; and

(d) not admit liability to any third party in connection with the User Indemnity Event or settle any disputes or proceedings involving a third party and relating to the User Indemnity Event without the prior written consent of the User,

[without prejudice to the User's obligations under Clause 13.3] OR [and the User's obligation to indemnify the Licensor under Clause 13.3 shall not apply unless the Licensor complies with the requirements of this Clause 13.4].

13.5 The indemnity protection set out in this Clause 13 [shall] OR [shall not] be subject to the limitations and exclusions of liability set out in this EULA[, except [exceptions]].

14. Limitations and exclusions of liability

14.1 Nothing in this EULA will:

(a) limit or exclude any liability for death or personal injury resulting from negligence;

(b) limit or exclude any liability for fraud or fraudulent misrepresentation;

(d) exclude any liabilities that may not be excluded under applicable law,

and, if a party is a consumer, that party's statutory rights will not be excluded or limited by this EULA, except to the extent permitted by law.

14.2 The limitations and exclusions of liability set out in this Clause 14 and elsewhere in this EULA:

(a) are subject to Clauses 14.1 and 17.6; and

(b) govern all liabilities arising under this EULA or relating to the subject matter of this EULA, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this EULA.

14.3 The Licensor will not be liable to the User in respect of any losses arising out of a Force Majeure Event.

14.4 The Licensor will not be liable to the User in respect of any loss of profits or anticipated savings.

14.5 The Licensor will not be liable to the User in respect of any loss of revenue or income.

14.6 The Licensor will not be liable to the User in respect of any loss of business, contracts or opportunities.

14.7 The Licensor will not be liable to the User in respect of any loss or corruption of any data, database or software.

14.8 The Licensor will not be liable to the User in respect of any special, indirect or consequential loss or damage.

14.9 The liability of the Licensor to the User under this EULA in respect of any event or series of related events shall not exceed the greater of:

(a) [amount]; and

(b) [the total amount paid and payable by the User to the Licensor under this EULA in the [12 month] period preceding the commencement of the event or events].

14.10 The aggregate liability of the Licensor to the User under this EULA shall not exceed the greater of:

(a) [amount]; and

(b) [the total amount paid and payable by the User to the Licensor under this EULA].

15. Termination

15.1 The Licensor may terminate this EULA by giving to the User [not less than 30 days'] written notice of termination[, expiring [at the end of any [calendar month]] OR [after the end of the Minimum Term]].

15.2 The User may terminate this EULA by giving to the Licensor [not less than 30 days'] written notice of termination[, expiring [at the end of any [calendar month]] OR [after the end of the Minimum Term]].

15.3 Either party may terminate this EULA immediately by giving written notice of termination to the other party if:

(a) the other party commits any [breach] OR [material breach] of this EULA[, and the breach is not remediable];

(b) [the other party commits a [breach] OR [material breach] of this EULA, and the breach is remediable but the other party fails to remedy the breach within the period of [30 days] following the giving of a written notice to the other party requiring the breach to be remedied]; or

(c) [the other party persistently breaches this EULA (irrespective of whether such breaches collectively constitute a material breach)].

15.4 Either party may terminate this EULA immediately by giving written notice of termination to the other party if:

(a) the other party:

(i) is dissolved;

(ii) ceases to conduct all (or substantially all) of its business;

(iii) is or becomes unable to pay its debts as they fall due;

(iv) is or becomes insolvent or is declared insolvent; or

(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up[ (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this EULA)]; or

(d) [if that other party is an individual:

(i) that other party dies;

(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or

(iii) that other party is the subject of a bankruptcy petition or order.

15.5 The Licensor may terminate this EULA immediately by giving written notice to the User if:

(a) any amount due to be paid by the User to the Licensor under this EULA is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and

(b) the Licensor has given to the User at least [30 days'] written notice, following the failure to pay, of its intention to terminate this EULA in accordance with this Clause 15.5.

16. Effects of termination

16.1 Upon the termination of this EULA, all of the provisions of this EULA shall cease to have effect, save that the following provisions of this EULA shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): [Clauses 1, 4.1, 10.2, 10.4, 13, 14, 16, 17 and 18].

16.2 The termination of this EULA shall not affect the accrued rights of either party.

16.3 Within [30 days] following the termination of this EULA for any reason:

(a) the User must pay to the Licensor [any Charges in respect of Services provided to the User before the termination of this EULA and in respect of licences in effect before the termination of this EULA]; and

(b) the Licensor must refund to the User [any Charges paid by the User to the Licensor in respect of Services that were to be (but are not) provided to the User after the termination of this EULA and in respect of licences that were to be (but are not) in effect after the termination of this EULA],

without prejudice to the parties' other legal rights.

16.4 For the avoidance of doubt, the licences of the Software in this EULA shall terminate upon the termination of this EULA; and, accordingly, the User must immediately cease to use the Software upon the termination of this EULA.

16.5 Within [10 Business Days] following the termination of this EULA, the User must:

(a) return to the Licensor or dispose of as the Licensor may instruct all media in its possession or control containing any Software; and

(b) irrevocably delete from all computer systems in its possession or control all copies of the Software.

17. General

17.1 No breach of any provision of this EULA shall be waived except with the express written consent of the party not in breach.

17.2 If any provision of this EULA is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this EULA will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).

17.3 This EULA may not be varied except by a written document signed by or on behalf of each of the parties.

17.4 Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this EULA.

17.5 This EULA is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this EULA are not subject to the consent of any third party.

17.6 Nothing in this EULA shall exclude or limit any liability of a party for fraud or fraudulent misrepresentation, or any other liability of a party that may not be excluded or limited under applicable law.

17.7 Subject to Clauses 14.1 and 17.6, this EULA shall constitute the entire agreement between the parties in relation to the subject matter of this EULA, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

17.8 This EULA shall be governed by and construed in accordance with [English law].

17.9 The courts of [England] shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this EULA.

18. Interpretation

18.1 In this EULA, a reference to a statute or statutory provision includes a reference to:

(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b) any subordinate legislation made under that statute or statutory provision.

18.2 The Clause headings do not affect the interpretation of this EULA.

18.3 In this EULA, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.