This End User Agreement (this "Agreement"), is a binding agreement between Ben E. Keith Company, a Texas corporation ("BEK") and you as BEK’s customer ("Licensee"). For purposes of this Agreement, the term Licensee shall only include individuals or entities who purchase foodservice products from BEK which are later sold or used at Licensee’s location(s).
BEK provides the Software and Documentation (defined herein) solely on the terms and conditions set forth in this Agreement and on the condition that Licensee accepts and complies with them. By clicking the "Accept" button you (a) accept this Agreement and agree that Licensee is legally bound by its terms; and (b) represent and warrant that: (i) you are 18 years of age or older/of legal age to enter into a binding agreement; (ii) you are an Authorized User as defined below, and (iii) if Licensee is a corporation, governmental organization, or other legal entity, you have the right, power, and authority to enter into this Agreement on behalf of Licensee and bind Licensee to its terms. If Licensee does not agree to the terms of this Agreement, BEK will not and does not license the Software to Licensee and you must not download or use the Software or Documentation. Licensee acknowledges and admits the Documentation, and any and all analyses, data, and information composing the Documentation or derived from the Documentation, is considered Confidential Information (as defined herein) and proprietary to BEK.
1. Definitions. For purposes of this Agreement, the following terms have the following meanings:
"Authorized Users" means Licensee and Licensee’s employees.
"Documentation" means (i) any information and analyses Licensee accesses through the Software, including but not limited to manufacturer or supplier names, pricing, and product type or description, and that may be or is transferred or downloaded into paper or electronic format in any way that is deliverable to any Third Party, and (ii) any analysis, data, or other information input or uploaded into the Software by Licensee which may be compiled with other information and analyses accessible through the Software.
"Third Party" means any individual person or entity other than Licensee or BEK.
2. License Grant and Scope. Subject to and conditioned upon Licensee's strict compliance with all terms and conditions set forth in this Agreement, BEK hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited license to access and use, solely by and through its Authorized Users, the Software and Documentation, solely as set forth in this section and subject to all conditions and limitations set forth in this Agreement. This license grants Licensee the right, exercisable solely by and through Licensee's Authorized Users, to properly use and run the Software in accordance with this Agreement and the Documentation and solely for Licensee's transacting business with BEK. Any access or use of the Software or Documentation by a Third Party shall be strictly prohibited. Furthermore, the Documentation, along with any information contained therein, shall not be disclosed or provided in any format, whether written, verbal, electronic or otherwise, to any Third Party, including any manufacturers, suppliers, retailers, trade associations, BEK competitors, group purchasing organizations, or third party entities who negotiate pricing with suppliers and manufacturers for the benefit of such entity’s members, customers, and clients, unless Licensee has first obtained written consent from BEK. Notwithstanding the foregoing, the Documentation and any information contained therein may be provided to Licensee’s certified public accountants and attorneys on a need-to-know basis who agree to (i) be bound to the terms herein, and (ii) not transfer, transmit, or otherwise provide the Documentation and such information to any Third Party.
3. Use Restrictions. Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:
(c) share usernames, passwords, or other log-in information to access or use the Software with any Third Party;
(h) copy the Software or Documentation, in whole or in part;
4. Responsibility for Use of Software. Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly.
5. Collection and Use of Information. Licensee acknowledges that BEK may, directly or indirectly through the services of Third Parties, collect, compile, and store information, including all information input or uploaded by Licensee, regarding use of the Documentation and Software and about equipment on which the Software is installed or through which it otherwise is accessed and used. Licensee agrees that BEK may use such information for any purpose related to any use of the Software by Licensee or on Licensee's equipment, including but not limited to, verifying Licensee's compliance with the terms of this Agreement and enforcing BEK's rights, including all intellectual property rights in and to the Software.
6. Confidential Information. BEK may furnish Licensee with Confidential Information. Licensee shall not (a) directly or indirectly disclose or cause to be disclosed, or otherwise transfer any Confidential Information to any Third Party; or (b) utilize Confidential Information for any purpose, except as expressly contemplated by this Agreement, or otherwise authorized in writing by BEK. Licensee will limit the disclosure of BEK Confidential Information, to Authorized Users, attorneys, or certified public accountants with a need to know and who have been advised of and have agreed to maintain the confidential nature thereof. Licensee shall be liable for any breach by Licensee, Licensee’s Authorized Users, attorneys, or certified public accountants of the confidentiality obligations contained herein. The definition of “Confidential Information” shall include, but not be limited to, all Documentation, all algorithms, analyses, compilations, data, information, methods, techniques and processes derived from, input in, or related to the Software or Documentation, and all non-public information including, without limitation, the brands, packages, manufacturers, terms, conditions, pricing of products made available to Licensee through, or input or uploaded by Licensee into, the Software, and any and all compilations of such non-public information. Licensee acknowledges and admits that the Confidential Information is proprietary to BEK, a trade secret of BEK, and shall be afforded the protections and status provided for proprietary information and trade secrets.
7. Intellectual Property Rights. Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. BEK reserves and shall retain its entire right, title, and interest in and to the Software and all intellectual property rights arising out of or relating to the Software. Licensee shall safeguard all Software from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify BEK if Licensee becomes aware of any infringement of BEK's intellectual property rights in the Software.
8. Term and Termination. This Agreement and the license granted hereunder shall remain in effect for so long as Licensee chooses to use the Software or is otherwise terminated as set forth herein. BEK may prevent access to the Software and/or Documentation, or terminate this Agreement, for any reason or no reason. Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease all access to and use of the Software and destroy all copies of the Documentation.
9. Indemnity. Licensee shall indemnify and hold BEK and its officers, directors, employees, members, contractors, parents, subsidiaries, and affiliates, (the “BEK Parties”) harmless against any and all third party claims, including costs and reasonable attorneys’ fees therefor, resulting from (i) the breach of any material term or condition of this Agreement by Licensee, Licensee’s employees, agents, contractors, or affiliates; and (b) any access or use of the Software by Licensee, Licensee’s Employees, agents, contractors, affiliates, Authorized Users, or a Third Party.
10. Warranty Disclaimer. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. BEK EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION.
11. Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BEK BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT BEK WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.