ClickABA, INC., a Florida corporation (“ClickABA”) and you, the undersigned (referred to as “Client” or “You” or “Your”) enter into this agreement (the “Agreement”) that governs Your use of ClickABA’s products and services through a license purchased online (collectively “Products”), including without limitation the applications associated with the .NET application, i-pad application, i-phone application and android application and any online streaming services available at the ClickABA websites.
Please note that You must read and agree to the terms and conditions of this Agreement before You use the ClickABA software application or the ClickABA Products. Consent to these terms will be made by checking an “accept” box when making Your purchase or starting a trial or by continued use of the Products. If You do not agree to the terms and conditions of the Agreement, You may NOT use any ClickABA Products or access any Product material on the ClickABA website. If the signatory of this agreement is part of a larger organization using ClickABA products or services, this Agreement applies organization-wide so that “You” encompasses not only the purchaser/signer-of-documents, but also any other individual, person, employee, contractor, group agency or entity that is given authorization/access to the Products.
NOWTHEREFORE, for good and adequate consideration, receipt of which is hereby acknowledged, ClickABA and You agree as follows:
Recitals set forth above are incorporated herein by reference.
- Grant of license.
wePortal/ClickABA maintains a strict minimum of at least 15 users to every account. This means that companies cannot reduce their number of users to any value that is lower than 15 users at anytime during their time as a client with wePortal/ClickABA
In exchange for payment of the listed fees for the Products on the ClickABA website, ClickABA grants You a limited, non-exclusive, non-transferable, revocable license to make use of (1) the ClickABA Products You are purchasing or otherwise downloading or (2) the ClickABA Products received by stream made available through the ClickABA website only for the intended purpose of the ClickABA Products as set forth on the ClickABA website. You do not have a right to transfer or sublicense Your rights under this Agreement. You may only install and use the Products on a single standalone device, or a single client device in a client-server configuration, at any one time.
References in this Agreement to the purchase of ClickABA Products shall mean only the purchase of the license to use the Products as set forth herein.
- Automatic subscription renewal.
Your purchase of the license and right to use the ClickABA Products will automatically renew at the end of each monthly subscription term unless You terminate Your subscription prior to the end of such subscription term in accordance with Section 6 or this Agreement is terminated by ClickABA.
Where the Product is purchased with a purchase order, services will automatically continue into a renewed term. However, delinquent payments may result in suspension or termination of service by ClickABA.
ClickABA may change the price of any ClickABA Products from time to time. Such changed price will take effect after the expiration of the then current paid for period (i.e. the term that You have already paid for). Any price change will be communicated to You by posting on the ClickABA website. If You do not wish to be bound by such changed price relating to Your ClickABA Product, You may terminate Your subscription in accordance with Section 6 (Term and termination). Continued use of the ClickABA Product after the communication of such price change to You constitutes an acceptance of such new price.
If You agree to pay the fee for access to the applicable ClickABA Product, such fee will be charged by ClickABA in accordance with the payment method You have chosen for Your purchase. If you are paying by credit or debit card, by designating a card to be billed, You confirm that You are authorized to make such purchase and that You are the holder of such card (i.e. that the card is issued in Your name). All prices stated on any ClickABA websites are inclusive of any applicable sales taxes and fees. ClickABA may accept a variety of different payment methods, so please check the ClickABA websites for the best way for You to pay.
- Restrictions of use.
You agree that You may not (without limitation):
- Copy, reproduce, display to others, retransmit, make available to the public or otherwise use or disseminate any part of any ClickABA software applications, Products, any part of the ClickABA video practice management software service or its content (including but not limited to images and text) or any other creative work, copyrights, or other intellectual property of ClickABA or its affiliates (collectively “Property”) in a manner not expressly permitted under this Agreement;
- Sell, re-sell, rent, lease, distribute, sublicense, or attempt to sell, re-sell, rent, lease, distribute or sublicense any access to any Property, including without limitation any ClickABA Product, or sell, re-sell, rent, lease, distribute, sublicense or commercialize in any manner any Products or method used to access any ClickABA Product;
- Provide Your password to any other person or use any other person’s user name and password;
- Reverse-engineer, decompile, disassemble, modify or create derivative works of, or attempt to reverse-engineer, decompile, disassemble, modify or create derivative works of, any ClickABA Property, including without limitation any software application or the ClickABA Products or any part thereof;
- Circumvent or attempt to circumvent any technology used by ClickABA, its licensors, or any third party to protect content accessible through any ClickABA software application and/or ClickABA Product;
- Use any Property, including without limitation, ClickABA software application or ClickABA Product in a way that violates the terms of this Agreement;
- Circumvent any territorial restrictions applied by ClickABA;
- Artificially manipulate any ClickABA software application or ClickABA Products in any manner;
- Import any materials, including, without limitation, files, images, documents, software or information which You have not legally acquired, or which You do not have the right to distribute, into any ClickABA software application or Product. If You import any materials into any ClickABA application or service or Product, You represent and warrant that You have the right to import such materials, and You agree to defend, indemnify and hold harmless ClickABA in the event of an alleged breach of this representation and warranty.
- You agree to take all reasonable care to prevent unauthorized use of any ClickABA software application and ClickABA Product and its content, and to notify ClickABA promptly of any such unauthorized use. You also acknowledge and agree that ClickABA may remove or reclaim Your username at any time in the sole and absolute discretion of ClickABA.
- (a) You may only use the Products for Your internal business operations (b) You may not allow any third party to use any of the Products, and (c) You may not modify, alter, reverse engineer, or copy any of the Products.
- Term and Termination.
This Agreement will become effective in relation to You when You create a ClickABA account or when You start using the ClickABA software application or the ClickABA Products and will remain effective for the monthly subscription term until terminated by You or ClickABA.
You may cancel Your subscription of any ClickABA Product at any time, by mailing us a cancelation request at email@example.com termination shall have effect at the expiration of the then current subscription period that You have already paid for. ClickABA will not refund any remaining portion of subscription fees You have already paid for. You may not cancel Your subscription if You have a service agreement with ClickABA (e.g. 24 month agreement). In this case, the service agreement takes priority over this subscription cancellation option listed here and You must follow the terms agreed upon in the service agreement.
ClickABA may terminate this Agreement or suspend Your ClickABA account at any time and immediately in the case of (1) nonpayment; (2) the wrongful or unauthorized, or suspected wrongful or unauthorized, use of the ClickABA software application or the ClickABA Products whether in contravention of this Agreement or otherwise; (3) breach of this Agreement; or (4) any noncompliance or violation of law and/or the rights of others by you. Notwithstanding anything contrary and without limiting this foregoing sentence, ClickABA may terminate this Agreement for any reason with fifteen (15) days prior notice to you. Notice shall be provided by in person delivery with confirmation of receipt, overnight mail or electronic notification.
If ClickABA terminates this Agreement, or suspends Your ClickABA account for any of the reasons set forth in this section or You terminate this Agreement, ClickABA shall have no liability or responsibility to You, and ClickABA will not refund any amounts that You have previously paid.
Upon termination or expiration of the Agreement, You will no longer have the license set forth herein or the right to use any Products or components thereof.
If You make the decision to terminate Your subscription for a ClickABA Product of a higher price in order to subscribe to a ClickABA Product of a lower price, You may lose data entered by You into the ClickABA Product of a higher price which Your subscription to the lower price ClickABA Product does not support. ClickABA shall have no liability to You of any kind, including consequential damages, for any loss of such data.
- NO WARRANTY.
THE USE OF THE ClickABA SOFTWARE APPLICATION AND THE ClickABA PRODUCTS (INCLUDING BUT NOT LIMITED TO ITS CONTENT) IS AT YOUR OWN RISK. THE ClickABA SOFTWARE APPLICATION AND THE ClickABA PRODUCTS ARE PROVIDED AND LICENSED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, ClickABA DISCLAIMS AND GIVES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF TITLE OR NON-INFRINGEMENT OR WARRANTY AS TO THE QUALITY, CONTENT AND AVAILABILITY OR FITNESS FOR A SPECIFIC PURPOSE OF THE ClickABA SOFTWARE APPLICATION OR THE ClickABA PRODUCTS. ClickABA MAKES NO REPRESENTATION OR WARRANTY, EXPRESSED OR IMPLIED, AS TO THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE ClickABA SOFTWARE OR PRODUCT OR ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER CONCERNING THE ClickABA SOFTWARE OR PRODUCT. Furthermore, ClickABA, does not provide any warranties or guarantees of any kind in connection with any third party hardware or devices used in connection with the Products subject to the Agreement. Any loss of use or data resulting from malfunction of such third party devices or for any other reason is explicitly NOT the responsibility of ClickABA.
In addition, ClickABA. does not warrant, endorse, guarantee or assume responsibility for any product or service advertised or offered by a third party on or through the ClickABA website, or featured in any banner or other advertising. Consequently, ClickABA will in no way be responsible for any transaction between You and third party providers of products or services advertised on or through the ClickABA website. As with any purchase of a product or service through any medium or in any environment, You should use Your best judgment and exercise caution where appropriate. No advice or information whether oral or in writing obtained by You from ClickABA shall create any warranty on behalf of ClickABA in this regard.
- LIMITATION OF LIABILITY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ClickABA, ITS AFFILIATES, OFFICERS, DIRECTORS, OWNERS, EMPLOYEES OR LICENSORS BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ANY LOSS OF PROFITS, BUSINESS INTERRUPTION, CORRUPTION OF FILES, LOSS OF BUSINESS INFORMATION, LOSS OF DATA, SERVICE INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE ClickABA SOFTWARE APPLICATION OR THE ClickABA PRODUCT (INCLUDING BUT NOT LIMITED TO ITS CONTENT), EVEN IF YOU HAVE ADVISED ClickABA ABOUT THE POSSIBILITY OF SUCH LOSS, AND INCLUDING ANY DAMAGES RESULTING THEREFROM, AND REGARDLESS OF WHETHER THE CLAIM IS BASED ON CONTRACT, TORT, STRICT LIABILITY, OR OTHER THEORY OF LIABILITY. In no event shall ClickABA be liable for any losses or damages to You arising out of a failure, deficiency or defect in ClickABA’s computer systems or networks, software or Products or as a result of the fault, in whole or in part, of any person or entity. Your only right with respect to any problems or dissatisfaction with the ClickABA software application and the ClickABA Products is to uninstall the ClickABA software application and to stop using the ClickABA Products. In no event will ClickABA’s total liability to You in connection with this Agreement exceed the total amount paid by You for the relevant ClickABA Products. To the following: In no event will ClickABA’s total liability to You in connection with this Agreement exceed $7500.
You shall defend, indemnify and hold harmless ClickABA and its affiliates, and their officers, directors, owners, agents and employees from and against all claims, suits, and damages whatsoever, including but not limited to incidental costs, attorney’s fees, consequential damages and punitive damages, arising from or in connection with (1) alleged negligence, willful misconduct, violation of law and/or breach of contract by You and Your respective employees, officers and/or agents, or (2) the services rendered by You to third parties or your dealings with third parties, including without limitation any claims arising out of Your business, Your computer or network failure or (3) wrongful or negligent actions or omissions arising from or regarding Your use of the Products; provided, however, ClickABA reserves the right to participate in any defense using counsel of ClickABA’s own choosing at Your expense and to approve any settlement offer made by or to You which may affect ClickABA’s rights or interests. Defense counsel pursuant to Your obligations hereunder must first be approved by ClickABA.
- Intellectual property.
The ClickABA Property and the content provided through the ClickABA websites, including without limitation all content, trademarks, service marks, look and feel, and arrangement and structure of the websites and menus, are the property of ClickABA or ClickABA ‘s affiliates and applicable licensors and protected by intellectual property rights (including but not limited to copyright, trademark, trade dress and trade secret), and You do not have a right to use any of the foregoing except as provided by this Agreement. You agree that you will not infringe any third party’s intellectual property rights in using the ClickABA software application and Products. You may not remove or alter any copyright, trademark or other intellectual property notices contained on or provided through the ClickABA software application or the ClickABA Products.
- Technology limitations and modifications.
ClickABA will make reasonable efforts to keep the ClickABA software application and the ClickABA Products operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions and ClickABA shall not be liable in any manner for such interruption. ClickABA reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, functions and features of the ClickABA software application and the ClickABA Products with or without notice and without liability of any kind to ClickABA.
You agree to use the ClickABA software application and Products in a manner that is fully compliant with all applicable laws and regulations, including without limitation privacy laws protecting the rights of others.
- Assignment by ClickABA.
ClickABA may assign this Agreement or any part of it without restrictions. You may not assign this Agreement or any part of it to any third party.
- Equitable Relief.
You acknowledge that ClickABA will suffer irreparable harm as a result of a breach of Your obligations under this Agreement and any violation of ClickABA’s intellectual property rights in the Property for which an adequate monetary remedy does not exist and a remedy at law may prove to be inadequate. Accordingly, in the event of any actual or threatened breach by You of this Agreement, ClickABA shall, in addition to any other remedies permitted by law, be entitled to (1) obtain remedies in equity, including, but not limited to, specific performance, injunctive relief, a temporary restraining order, and/or a preliminary and/or permanent injunction in any court of competent jurisdiction, to prevent or otherwise restrain a breach of this Agreement and any violation of ClickABA’s intellectual property rights without the necessity of proving damages, posting a bond or other security, and (2) recover any and all costs and expenses, including reasonable counsel fees, incurred in enforcing this Agreement against You, and You hereby consent to the entry of such relief against You and agree not to contest such entry. You shall not defend on the basis that there is an adequate remedy at law. Such relief shall be in addition to and not in substitution of any other remedies available to ClickABA. The existence of any claim or cause of action by You against ClickABA, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by ClickABA of its rights.
- Authority to Sign.
The individual signing warrants that he or she is authorized to sign on behalf of You and entering into this Agreement will not conflict with any other Agreement between You and any person or entity.
- Changes to the Agreement.
ClickABA may make changes to this Agreement at its sole discretion. Changes will be communicated to You by posting the new version of the Agreement on the ClickABA website, or as otherwise determined by ClickABA, and Your acceptance of and/or continued use the ClickABA Products after such notification of changes to this agreement will constitute Your acceptance of such changes.
- No Waiver. No waiver of any provision of this Agreement shall in any event be effective unless the same shall be in writing and signed by the party granting such waiver and then such waiver shall be effective only in the specific instance and for the specific purpose for which given.
- In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement and such invalid, illegal and unenforceable provision shall be reformed and construed so that it will be valid, legal, and enforceable to the maximum extent permitted by law.
- Applicable Governing Law and Venue/Attorney’s fees. This Agreement will be governed and construed in accordance with the internal laws of the State of Florida and disputes shall be determined exclusively in the federal and state courts of Miami-Dade County, without regard to conflict of law principles.
- Counterparts/ Execution. This Agreement may be executed in counterparts, all of which together shall constitute one and the same instrument. This Agreement may be signed electronically on the ClickABA website or by accepting pursuant to the ClickABA website instructions.
- You agree that you will never make or publish any statement or communication which is disparaging, negative or unflattering with respect to ClickABA, this Agreement and, with respect to ClickABA any of its respective direct or indirect equity holders, officers, directors, employees or agents (if it is an entity).
- Late Fees
If ClickABA is unable to charge the users fees on Client’s credit card(s), ClickABA shall notify Client thereof, whereupon Client shall promptly pay the full amount then due by corporate check (or, if requested by ClickABA, by ACH, bank check, or wire transfer), together with interest thereon at a rate of 5% per month from the due date thereof through the date payment is received by ClickABA, plus a 5% administrative fee based on the aggregate user fees then due.
- Data Retention
Any accounts suspended past 30 days will be deleted and Client data will not be retained by ClickABA.
Headings. The headings of the several paragraphs of this Agreement are inserted solely for convenience of reference and are not a part of and are not intended to govern, limit or aid in the construction of any term or provision hereof.