These Terms of Sale and
Software License Agreement (these “Terms of Sale”) are entered into
by and between Foxy Games, Inc. (“Foxy”) and you (“Customer” or
“you”), and shall govern the sale or lease (with or without charge)
of Hardware and Services and the license (with or without charge)
of Software to Customer.. If Foxy and Customer have entered into
another written agreement and such agreement is in effect at the
time of the applicable Invoice (an “Existing Agreement”), then the
terms and conditions of such Existing Agreement shall govern the
sale or lease of those Products or Services to the extent such
terms and conditions conflict with these Terms of Sale.
Exhibit A is incorporated into and shall be a part of these Terms
of Sale.
1.0
DEFINITIONS
1.1 Affiliate means any
corporation, firm, partnership or other entity that directly or
indirectly controls, or is controlled by, or is under common
control with Foxy or Customer.
1.2 Effective Date is the
date these Terms of Sale are electronically accepted,
click-accepted, accepted by facsimile transmission or signed in
hard copy by Customer. Such acceptance will include, but is not
limited to, electronically accepting, click-accepting, accepting by
facsimile transmission or signing a hard copy of a document (e.g.,
a credit card authorization form) or an electronic file (e.g., on a
computer screen) that incorporates these Terms of Sale by
reference.
1.3 Hardware is the
tangible product acquired or leased by Customer from Foxy
including, but not limited to, computer chips, motherboards,
security devices, printers, bill acceptors and
cabinets.
1.4 Invoice is the invoice
sent by Foxy to Customer in response to a Purchase
Order.
1.5 Products are,
individually or collectively as appropriate, Hardware and
Software.
1.6 Purchase Order is an
order created by Foxy for the Customer for Products or Services to
be purchased, licensed or provided.
1.7 Services are any
maintenance, technical support, customer service or any other
services performed or to be performed by Foxy.
1.8 Software is the
machine readable (object code) version of the computer programs
listed on the Invoice, provided with the Hardware and/or made
available by Foxy for license to Customer including firmware, and
any copies made, bug fixes for, updates to, or upgrades thereof.
Software also includes (i) codes that are sold or provided that
allow the computer programs to continue operating, reload, or
extend play (i.e., “fill codes”), (ii) computer programs written
for security devices, and (iii) documentation such as user manuals,
training materials, descriptions, specifications and technical
manuals, if any, related to the Software.
1.9 Territory is the
states or territories within the U.S. for which the various
Products were designed by Foxy’s suppliers as determined in their
sole discretion from time to time.
2.0
SCOPE
All transactions between
Customer and Foxy (or its Affiliates) shall be governed by these
Terms of Sale. Customer may use the Products and Services only in
the Territory for each specific Product and solely for (i)
Customer’s business use. Customer shall not resell to, make
available for use by, or otherwise transfer title to any Product
to, any end user or other third party, including any reseller,
without such reseller or distribution rights.
(ii) To qualify for
geographic protection you must have a certain quantity of
terminals in that location. This number is determined by the
software company and subject to their approval
(iii) Some offers on this
website are subject to minimum purchases. Ex: Templated
website and Email marketing Clients that purchase 30 computers or
more or commitments of 30 or more computers total per
Operator
3.0
PRICES
3.1 Prices for Products
and Services shall be those specified in the Invoice. Foxy
shall have the authority to correct any errors regarding pricing at
any time.
3.2 All prices are
exclusive of any freight, handling, insurance charges, taxes, fees
and duties and other similar items, however designated. Customer
shall pay, and shall indemnify and hold harmless Foxy against, any
taxes related to Products and Services provided pursuant to these
Terms of Sale (except for taxes based on Foxy’s revenue income).
Customer may present an exemption certificate acceptable to all
relevant taxing authorities, if applicable. Applicable taxes may,
to the extent practical, be billed as a separate item on the
invoice. Regardless of what appears on the Invoice, Customer shall
be responsible for all freight, handling, insurance charges, taxes,
fees and duties and other similar items.
3.3 Foxy reserves
the right to charge (i) a fee for any updates, fixes, upgrades, new
versions, new games or other changes to the Software or Hardware,
and (ii) a fee or new fill charge for “fills” lost due to dead
batteries or lost for other reasons.
4.0
ORDERS
Customer may purchase,
lease or license Products or Services by placing an order with
Foxy, which order will be evidenced by a Purchase Order and an
Invoice. The terms of these Terms of Sale shall apply and govern,
regardless of any additional or conflicting terms on any purchase
order or other correspondence or documentation submitted by
Customer to Foxy, and any such additional or conflicting terms are
deemed rejected by Foxy. All Sales Orders must be accepted by
Foxy at its principal office in Florida before they become a
binding contract.
5.0 SHIPPING
AND DELIVERY
5.1 Scheduled shipping
dates will be assigned by Foxy in its discretion, and Foxy shall
select the carrier.
5.2 Title and
risk of loss shall pass from Foxy to Customer and delivery shall be
deemed to occur upon transfer of possession to the first common
carrier or Customer’s representative at Foxy’s or its supplier’s
warehouse dock.
5.3 FOXY, AND ITS
SUPPLIERS, SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR PENALTY FOR
DELAY IN DELIVERY OR FOR FAILURE TO GIVE NOTICE OF ANY DELAY.
FOXY, AND ITS SUPPLIERS, SHALL NOT HAVE ANY LIABILITY IN CONNECTION
WITH SHIPMENT, NOR SHALL THE CARRIER BE DEEMED TO BE AN AGENT OF
FOXY.
5.4 All transactions are
final. Except as provided in Foxy’s, or its supplier’s, written
warranty statements, Foxy does not accept returns unless (i) Foxy
shipped a product other than as specified in the Invoice, (ii) such
Product is unopened, and (iii) the Product is returned in
accordance with Foxy’s then current RMA policy and procedures. If
Foxy agrees to cancel a Purchase Order or Invoice or repurchase
Products at a later date for reasons other than as stated in the
preceding sentence, Customer agrees to a 20% restocking fee to
compensate Foxy for the work required to cancel the order or
purchase the Product.
6.0 PAYMENT
Unless otherwise stated in
writing on the Invoice, payment is due (i) in full at the time of
the order for all orders except game terminals, and (ii) one half
at the time of order and one half before shipment for orders of
game terminals. If at any time Customer is delinquent in the
payment of any invoice, or is otherwise in breach of these Terms of
Sale, Foxy may, in its discretion, and without prejudice to its
other rights, withhold shipment (including partial shipments) of
any order, require Customer to prepay for further shipments, and/or
withhold the provision of Services, until complete payment has been
received. Any sum not paid by Customer when due shall bear interest
from the due date until paid at a rate of (i) ten per cent per
annum or (ii) the maximum rate permitted by law, whichever is
less.
7.0 PROPRIETARY
RIGHTS AND SOFTWARE LICENSING
7.1 Subject to the terms
contained in the Operator’s License Agreement set forth in Exhibit
A (the “EULA”) and the other provisions of these Terms of Sale,
Foxy grants to Customer a non-exclusive, non-transferable license
to use the Software for Customer’s business use solely in the
specific location for each specific Product during the term of
these Terms of Sale. Customer may not sublicense, to any person or
entity, any rights to distribute the Software. Customer
agrees to comply with the terms of the EULA.
7.2 All software
delivered in connection with these Terms of Sale which is
separately licensed by a third party (Foxy’s suppliers), Customer’s
rights and responsibilities with respect to such software shall be
governed in accordance with the third party’s applicable software
license.
7.3 All security devices
(e.g., dongles) are leased to the Customer for the term of the
Software license. Upon termination of the Software license or
upon request by Foxy in writing, all security devices shall be
returned to Foxy. Notwithstanding anything herein to the
contrary, Foxy shall retain all rights to the security devices,
except the limited right to use such security devices with the
Software. Customer shall not reverse engineer, decompile,
decrypt, disassemble or disable a security
device.
8.0
LIMITEDWARRANTIES
8.1 Limited Warranty for
Products. The written warranty for Products (the “Limited Warranty
Statement”) may be found at the following our supplier’s URL.
Notwithstanding any other term of these Terms of Sale, Foxy and its
suppliers’ sole and exclusive warranty and obligations are set
forth in the Limited Warranty Statement. Customer shall not make
any warranty commitment, whether written or oral, on Foxy’s behalf.
Customer shall indemnify Foxy and its suppliers against any
warranties made by Customer in addition to the Limited Warranty
Statement and for any misrepresentation of Foxy’s reputation or of
Foxy’s Products and Services. In the event of any breach by
Foxy of the Limited Warranty Statement, the Customer agrees that
its sole an exclusive remedy for such breach shall be the remedies
set forth in the Limited Warranty Statement.
8.2 Services. Services
provided hereunder shall be performed in a workmanlike manner
consistent with industry standards. Customer must notify Foxy
promptly, but in no event more than thirty (30) days after
completion of the Services, of any claimed breach of this warranty.
Customer’s sole and exclusive remedy for breach of this warranty
shall be, at Foxy’s option, (i) re-performance of the Services, or
(ii) termination of these Terms of Sale or the applicable Service
and return of the portion of the Service fees paid to Foxy by
Customer for such non-conforming Services. The provision of
Services under these Terms of Sale shall not extend the warranties
provided with any Hardware purchased or Software licensed by
Customer
8.3 Restrictions. The
limited warranties referenced in this Section do not apply if the
Product (a) has been altered, except by Foxy or it’s supplier, (b)
has not been installed, operated, repaired, used or maintained in
accordance with instructions made available by Foxy, (c) has been
subjected to abnormal or unusual physical or electrical stress or
environmental conditions, misused, or negligently handled or
operated; or (d) is acquired by Customer for beta, evaluation,
testing, demonstration purposes or other circumstances for which
Foxy does not receive a payment of a purchase price or license
fee.
8.4 Non- Foxy products.
Unless otherwise specified in writing by Foxy, the limited
warranties referenced in this Section do not apply to any non- Foxy
software or hardware that may be offered for sale or license in the
name of a third party. Non- Foxy hardware and software are
warranted solely by the applicable manufacturer or licensor. Foxy
will pass through, to the extent permitted, the manufacturers
and/or licensor’s warranties and Customer shall look solely to such
manufacturer and/or licensor for warranty claims.
8.5 DISCLAIMER OF
WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS
SECTION, THE PRODUCTS AND
SERVICES ARE PROVIDED “AS IS” AND FOXY HEREBY DISCLAIMS AND
CUSTOMER WAIVES ALL REPRESENTATIONS, CONDITIONS AND WARRANTIES
(WHETHER EXPRESS, IMPLIED, OR STATUTORY), INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OR CONDITION (A) OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE,
SATISFACTORY QUALITY, QUIET ENJOYMENT, ACCURACY, OR SYSTEM
INTEGRATION, OR (B) ARISING FROM ANY COURSE OF DEALING, COURSE OF
PERFORMANCE, OR USAGE IN THE INDUSTRY. TO THE EXTENT AN IMPLIED
WARRANTY OR CONDITION CANNOT BE DISCLAIMED, SUCH WARRANTY OR
CONDITION IS LIMITED IN DURATION TO THE APPLICABLE EXPRESS WARRANTY
PERIOD.
EXCEPT AS EXPRESSLY
PROVIDED IN THIS SECTION, WITH RESPECT TO YOUR USE OF THE SOFTWARE,
FOXY, NOT IT’S SUPPLIERS, (INCLUDING ITS OFFICERS, DIRECTORS,
EMPLOYEES, CONTRACTORS, AGENTS, AFFILIATES, AND ASSIGNS) MAKES NO
EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION (I) THAT SOFTWARE
PROVIDED TO YOU IS OR WILL BE SECURE, ACCURATE, COMPLETE,
UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS, OTHER
HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS; (II) THAT ANY
ERRORS IN THE SOFTWARE WILL BE CORRECTED; (III) THAT THE PRODUCTS
ARE APPROPRIATE OR LEGAL FOR USE OR POSSESSION; (IV) REGARDING THE
TAXES THAT MAY BE DUE ARISING FROM THE USE OR OPERATION OF THE
SOFTWARE; (V) AS TO THE ACCURACY, QUALITY, RELIABILITY,
SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS, OR
EFFECTIVENESS OF ANY REPORTS, DATA, RESULTS, OR OTHER INFORMATION
OBTAINED OR GENERATED BY CUSTOMER RELATED TO CUTOMER’S USE OF THE
SOFTWARE, OR (VI) THAT PACE WILL PROVIDE LEGAL SUPPORT IN
CONNECTION WITH THE
PRODUCTS.
8.6 Used
Hardware. Customer understands and agrees that the Hardware
(or parts thereof) may be used or refurbished. Foxy makes no
warranties, express, implied or statutory, that the Hardware is
new.
9.0 TERM AND
TERMINATION
9.1 These Terms of Sale
shall commence on the Effective Date and continue thereafter for a
period of one year, unless sooner terminated as set forth herein.
These Terms of Sale shall be automatically renewed thereafter, for
successive one-year periods, unless sooner terminated as set forth
herein.
9.2 Either party may
terminate these Terms of Sale (including the provision of “fill
codes” by Foxy) at any time by providing the other party with at
least ninety (90) days’ prior written notice of termination. For
the avoidance of doubt, the termination of these Terms of Sale
means the termination of the agreement(s) between Foxy and Customer
as evidenced by the Purchase Order, the Invoice and the terms and
conditions set forth herein.
9.3 If a party breaches
any of the provisions of these Terms of Sale, the non-breaching
party may terminate these Terms of Sale and Foxy, if it is the
non-breaching party, may also suspend the provision of “fill codes”
as follows: (a) immediately upon providing written notice to the
breaching party if the breach is not capable of being cured,
and
(b) thirty (30) days after
providing written notice to the breaching party if the breaching
party fails to cure such breach within such thirty (30) day
period.
9.4 Foxy may
terminate these Terms of Sale or suspend the provision of “fill
codes” immediately upon written notice (i) in the event that
Customer is in breach of Section 7.0 (Proprietary Rights and
Software Licensing), the EULA or Section 11.0 (Compliance with
Laws), (ii) Customer is using a Product in a Territory for which
such Product was not designed as determined by Foxy in its sole
discretion, (iii) Customer purchases a “fill code” from someone
other than Foxy without Foxy’s prior written consent, or (iv) if,
in Foxy’s sole opinion, a statutory change or judicial or
governmental decision or interpretation prohibits the sale, use or
license of the Software or the Hardware in the
Territory.
9.5 Upon termination or
expiration of these Terms of Sale, (a) Foxy reserves the right to
cease all further delivery of Products or Services, (b) all
outstanding invoices immediately become due and payable, and (c)
all rights and licenses of Customer under these Terms of Sale shall
terminate. If Foxy agrees to complete delivery of any further
Products or Services due against any existing Purchase Order, then
Customer shall pay for such Products or Services in
advance.
10.0
SERVICES
Customer may order various
Services offered by Foxy. Such Services, if accepted by Foxy, shall
be subject to these Terms of Sale, as well as the additional terms
and conditions set forth in Foxy’s then-current applicable Service
descriptions that describe the deliverables and other terms
applicable to such Services unless an Existing Agreement is in
effect in which case the terms of the Existing Agreement shall
govern any such Services to the extent of any conflict with these
Terms of Sale.
11.0 COMPLIANCE WITH
LAWS
In connection with the
purchase, use or distribution of the Products or Services, or
otherwise in carrying out its obligations under these Terms of
Sale, Customer represents and warrants the following:
(a) Customer shall obtain
all licenses, permits and approvals required by any government or
applicable authority. In addition, Customer will comply with all
country, federal, state and local laws, ordinances, codes,
regulations, rules, policies and procedures of any government or
other competent authority where the Products or Services are
purchased by Customer or are to be sold, used or deployed,
including, without limitation, all anti-corruption laws, including,
the U.S. Foreign Corrupt Practices Act (“Applicable
Laws”).
(b) Customer shall not
take any action or permit or authorize any action in violation of
the Applicable Laws;
(c) In no event shall Foxy
be obligated under these Terms of Sale or otherwise to take any
action or omit to take any action that Foxy believes, in good
faith, would cause it to be in violation of any Applicable
Laws;
(d) Notwithstanding any
other provision in these Terms of Sale, Foxy may suspend the
provision of “fill codes” or terminate these Terms of Sale
immediately upon written notice if Customer breaches any of the
representations and warranties set forth in this section. Customer
will indemnify and hold harmless Foxy and it’s suppliers for any
violation by Customer of any Applicable Laws; and
(e) Customer shall use its
best efforts to regularly inform Foxy of any requirements under any
Applicable Laws that directly or indirectly affect the sale, use or
distribution of Products or Services, Foxy’s trade name, trademarks
or other commercial, industrial or intellectual property interests
or that of its suppliers.
12.0 LIMITATION OF
LIABILITY
12.1 General.
NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS OF SALE TO THE
CONTRARY, ALL LIABILITY OF FOXY, ITS AFFILIATES,
OFFICERS,
DIRECTORS, EMPLOYEES AND
AGENTS COLLECTIVELY FOR CLAIMS UNDER THESE TERMS OF SALE OR
OTHERWISE HOWSOEVER ARISING SHALL BE LIMITED TO THE MONEY PAID TO
FOXY FOR PRODUCTS AND FOR SERVICES UNDER THESE TERMS OF SALE DURING
THE SIX (6) MONTH PERIOD PRECEDING THE EVENT OR
CIRCUMSTANCES FIRST GIVING
RISE TO SUCH LIABILITY. THIS LIMIT OF
LIABILITY IS CUMULATIVE
AND NOT PER INCIDENT (I.E., THE EXISTENCE OF TWO OR MORE CLAIMS
WILL NOT ENLARGE THIS LIMIT).
12.2
Indemnification. TO THE FULLEST EXTEND PERMITTED BY LAW,
CUSTOMER SHALL INDEMNIFY AND HOLD HARMLESS FOXY AND ITS AFFILIATES,
OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS AGAINST ALL CLAIMS,
ACTIONS, CAUSES OF ACTION, LOSSES, DAMAGES AND LIABILITIES ARISING
OUT OF OR IN CONNECTION WITH THE PURCHASE, USE OR RESALE OF THE
PRODUCTS OR SERVICES.
12.3 No Class Actions.
CUSTOMER SHALL NOT BE ENTITLED, AND WAIVES ALL RIGHTS, TO JOIN OR
CONSOLIDATE CLAIMS WITH OTHER CUSTOMERS, OR PURSUE ANY CLAIM AS A
REPRESENTATIVE OR CLASS ACTION AGAINST FOXY AND/OR IT’S
SUPPLIERS.
12.4 Limitation Period.
FOXY SHALL NOT BE LIABLE FOR ANY CLAIM BROUGHT MORE THAN ONE YEAR
AFTER THE CAUSE OF ACTION FOR SUCH CLAIM FIRST AROSE.
12.5 No Jury Trial.
CUSTOMER HEREBY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY
RIGHT TO A JURY TRIAL WITH RESPECT TO ANY DISPUTE ARISING FROM THE
PURCHASE, USE OR RESALE OF THE PRODUCTS OR SERVICES.
13.0 WAIVER OF
CONSEQUENTIAL AND OTHER DAMAGES; ASSUMPTION OF RISK BY
CUSTOMER
IN NO EVENT SHALL EITHER
FOXY, ITS SUPPLIERS, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES
OR AGENTS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR
CONSEQUENTIAL DAMAGES, OR LOST REVENUE, LOST PROFITS, OR LOST OR
DAMAGED DATA, WHETHER ARISING IN CONTRACT, TORT (INCLUDING
NEGLIGENCE), OR OTHERWISE, EVEN IF EITHER PARTY OR BOTH PARTIES
HAVE BEEN INFORMED OF THE POSSIBILITY THEREOF. USE OR RESALE OF THE
PRODUCTS AND SERVICES ARE AT THE CUSTOMER’S SOLE RISK AND CUSTOMER
ASSUMES THE RISK OF USING AND RESELLING THE PRODUCTS AND
SERVICES. PACE SHALL HAVE NO LIABILITY RELATING TO SUCH USE
OR RESALE. CUSTOMER ASSUMES THE ENTIRE COST OF ALL NECESSARY
SERVICING, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES OR
OTHER HARMFUL COMPONENTS.
14.0
GENERAL
14.1 Choice of Law. The
validity, interpretation, and performance of these Terms of Sale
shall be controlled by and construed under the laws of the State of
Georgia, United States of America, as if performed wholly within
the state and without giving effect to the principles of conflicts
of law. The state and federal courts of the State of Georgia
shall have exclusive jurisdiction over any claim arising hereunder
and Customer waives any rights or objections based upon the
doctrine of forum non conveniens. The parties specifically disclaim
the application of the UN Convention on Contracts for the
International Sale of Goods. Notwithstanding the foregoing, either
party may seek interim injunctive relief in any court of
appropriate jurisdiction with respect to any alleged breach of such
party’s intellectual property or proprietary rights.
14.2 Force Majeure. Except
for the obligation to pay monies due and owing, neither party shall
be liable for any delay or failure in performance due to events
outside the defaulting party’s reasonable control, including,
without limitation, acts of God, earthquakes, labor disputes,
industry-wide shortages of supplies, actions of governmental
entities, riots, war, terrorism, fire, epidemics, or delays of
common carriers or other circumstances beyond its reasonable
control. The obligations and rights of the defaulting party shall
be extended for a period equal to the period during which such
event prevented such party’s performance.
14.3 No Waiver. The waiver
by either party of any right provided under these Terms of Sale
shall not constitute a subsequent or continuing waiver of such
right or of any other right under these Terms of Sale.
14.4 Assignment. Neither
these Terms of Sale nor any rights or obligations under these Terms
of Sale shall be assigned by Customer without the Foxy’s prior
written consent, which will not be unreasonably withheld or
delayed. Notwithstanding any assignment by Customer, Customer shall
remain liable for the payment of all amounts due under these Terms
of Sale.
14.5 Severability. In the
event that part of or one or more terms of these Terms of Sale
become or are declared to be illegal or otherwise unenforceable by
any court of competent jurisdiction, each such part or term shall
be null and void and shall be deemed deleted from these Terms of
Sale. All remaining terms of these Terms of Sale shall remain in
full force and effect. Notwithstanding the foregoing, if this
paragraph is invoked and, as a result, the value of these Terms of
Sale is materially impaired to Foxy as determined by Foxy in its
sole discretion, then Pace may terminate these Terms of Sale by
written notice with immediate effect to the Customer.
14.6 No Agency. These
Terms of Sale do not create any agency, partnership, joint venture,
or franchise relationship. No employee of either party shall be or
become, or shall be deemed to be or become, an employee of the
other party by virtue of the existence or implementation of these
Terms of Sale. Each party hereto is an independent contractor.
Neither party shall assume or create any obligation of any nature
whatsoever on behalf of the other party or bind the other party in
any respect whatsoever.
14.7 Entire Agreement.
These Terms of Sale constitute the entire agreement between the
parties concerning the subject matter of these Terms of Sale and
replace any prior oral or written communications between the
parties, all of which are excluded. There are no conditions,
understandings, agreements, representations or warranties,
expressed or implied, that are not specified herein. These Terms of
Sale may be revised, in whole or in part, by Foxy from time to time
by posting the revised Terms of Sale to its website at Foxy
www.foxy-games.net.
14.8 Notices. All notices
required or permitted under these Terms of Sale will be in writing
and will be deemed given one day after deposit with a commercial
express courier specifying next day delivery (or two (2) days for
international courier packages specifying 2-day delivery), with
written verification of receipt. All communications will be sent to
(i) Foxy at P.O. Box 941013, Maitland, Fl. 32794-1013 (with a copy
to the General Counsel at the same address), and (ii) to the
Customer at the addresses set forth on the Invoice, or such other
address as may be designated by a party by giving written notice to
the other party pursuant to this paragraph, or, in the absence of
such an address from customer, to the address to which the last
invoice under these Terms of Sale was sent before notice is served.
Notwithstanding the foregoing, Foxy notices regarding changes in
pricing, Software license terms, policies or programs may be made
by posting on www.foxy-games.net or by e-mail or fax.
14.9 Survival. The
following sections shall survive the expiration or earlier
termination of these Terms of Sale: Sections 2.0 (Scope), 6.0
(Payment), the Customer’s obligations set forth in 7.0 (Proprietary
Rights and Software Licensing) and the OLA, 8.0 (Limited
Warranties), 9.0 (Term and Termination), 12.0 (Limitation of
Liability), 13.0 (Waiver of Consequential and Other Damages), 14.0
(General), subject to the termination provisions set forth in
Section 9.0 (Term and Termination) of these Terms of
Sale.
14.10 Headings. Headings
of sections have been added solely for convenience of reference and
shall not be deemed part of these Terms of Sale.
EXHIBIT A
END USER LICENSE AGREEMENT
ORDERING, DOWNLOADING,
INSTALLING OR USING THE SOFTWARE CONSTITUTES ACCEPTANCE OF THIS END
USER LICENSE AGREEMENT (“EULA”).
General. This EULA governs
Customer’s access and use of the Software (as such term is defined
in the Foxy Games Inc. (“Foxy”) Terms of Sale and Software License
Agreement (“Terms of Sale”), except to the extent there is a
separate signed contract between Customer and Foxy governing
Customer’s use of the Software. To the extent of a conflict between
the provisions of the foregoing documents, the order of precedence
shall be (1) the signed contract, and (2) this
EULA.
License. Conditioned upon
compliance with the terms and conditions of this EULA and the Terms
of Sale, Foxy grants to customer a nonexclusive and nontransferable
license to use for Customer’s business purposes the Software for
which Customer has paid the required license fees. In order
to use the Software, Customer may be required to input a
registration number or product authorization key and register
Customer’s copy of the Software on-line at Foxy’s website to obtain
the necessary license key or license file. Customer’s license
to use each set of Software shall be limited to, and Customer shall
not use the Software in excess of, a single hardware chassis.
No other licenses are granted by implication, estoppel or
otherwise. For evaluation sets, beta sets or other sets of
Software for which Foxy does not charge a license fee, the above
requirement to pay license fees does not apply.
Limitations. This is a
license, not a transfer of title, to the Software, and Foxy’s
suppliers retains ownership of all copies of the Software.
Customer acknowledges that the Software contains trade secrets of
software manufactures company or its licensors including, but not
limited to, the specific internal design and structure of
individual programs and associated interface information.
Except as otherwise expressly provided under this EULA or the Terms
of Sale, Customer shall have no right, and Customer specifically
agrees not to:
(i) transfer, assign or
sublicense its license rights to any other person or entity (other
than in compliance with any Foxy written agreement with Customer),
and Customer acknowledges that any such attempted transfer,
assignment or sublicense shall be void;
(ii) make error
corrections to or otherwise modify or adapt the Software or create
derivative works based upon the Software, or permit third parties
to do the same;
(iii) reverse engineer,
decompile, decrypt, disassemble or otherwise reduce the Software to
human-readable form;
(iv) publish any results
of benchmark tests run on the Software;
(v) use or permit the
Software to be used without a security device if a security device
is available from by Pace;
(vi) disclose, provide, or
otherwise make available trade secrets contained within the
Software in any form to any third party without the prior written
consent of Foxy. Customer shall implement reasonable security
measures to protect such trade secrets;
(vii) make any copies or
duplicates of the Software (including the “fill
codes”);
(ix) use the Software in a
state or territory for which such Product was not designed as
determined by Foxy in its sole discretion, or
(x) purchase a “fill code”
from someone other than Foxy without Foxy’s prior written
consent.
Proprietary
Notice. Customer agrees to maintain and reproduce
all copyright and other
proprietary notices on all
copies, in any form, of the Software in the same form and
manner
that such copyright and
other proprietary notices are included on the
Software.
Term and
Termination. This EULA and the license granted
herein shall remain effective
until terminated or
suspended as provided in the Terms of Sale. Upon termination
and upon request by Foxy, Customer shall destroy or return all
copies of Software in its possession or control.
HOME - GAMES -
GET STARTED NOW
- HARDWARE
- LOCATION REQUIREMENTS
- CONTACT
US
EMPLOYMENT
OPPORTUNITIES - PRIVACY
POLICY - TERMS OF
USE - T.O.S. -
OFFICIAL RULES - Site
Map
Foxy Games Inc.© 2012