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End User License Agreement

LINK Group, LLC End User License Agreement

 

BY DOWNLOADING, INSTALLING, COPYING, ACCESSING OR USING THIS SOFTWARE, YOU AGREE TO THE TERMS OF THIS END USER LICENSE AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY OR LEGAL ENTITY TO THESE TERMS.

 

IF YOU DO NOT AGREE TO THESE TERMS DO NOT DOWNLOAD, INSTALL, COPY, ACCESS OR USE THIS SOFTWARE.

 

    1. “Authorized Partner” means any of Wicket’s distributors, resellers or other business partners that are authorized by LINK to grant Software license rights granted under this Agreement.
    2. “Software” means the LINK point-of-sale software program in object code format licensed from LINK and purchased from LINK or its Authorized Partners, in each case including Upgrades and Updates.
    3. “Standard” means a technology specification created by a government sponsored group, an industry sponsored group, or any similar group or entity that creates technology specifications to be used by others.
    4. “Support” or “Technical Support” means the support services offered by LINK or an Authorized Partner for the support and maintenance of the Software.
    5. “Updates” are related to content of the Software that are made generally available to Wicket’s customer base whether such updates are provided as with or without separate purchase.
    6. “Upgrade” means any and all improvements in the Software that are made generally available to Wicket’s customer base and that are separately purchased from the Software.
    7. “Wicket” means Wicket, LLC, with offices located at 922 South State Street, Pleasant Grove, Utah 84062.

 

  1. License Grant; Proprietary Rights.
    1. Subject to the terms and conditions of this Agreement, LINK hereby grants to you a non-exclusive, non-transferable license to use the Software solely for your own internal business operations. You are not granted rights to Upgrades without purchase.
    2. The Software, including, without limitation, its object code and source code, whether or not provided to you, is strictly confidential to Wicket. LINK owns exclusively and reserves all right, title, and interest in and to the Software, including, without limitation, all intellectual property rights in and to the Software, except to the extent of the limited Software use license granted to you in this Agreement.  This Agreement is not an agreement of sale, and no title, intellectual property rights, or ownership rights to the Software are transferred to you pursuant to this Agreement. You acknowledge and agree that the Software and all ideas, methods, algorithms, formulae, processes, and concepts used in developing or incorporated into the Software, all future Updates and Upgrades, and all other improvements, revisions, corrections, bug-fixes, hot- fixes, patches, modifications, enhancements, releases, and other updates in, of, or to the Software, all derivative works based upon any of the foregoing, and all copies of the foregoing are trade secrets and proprietary property of Wicket, having great commercial value to Wicket.

 

  1. Terms of Use.
    1. Copies: You may only create copies of the Software as is reasonably necessary for back-up, archival or disaster recovery purposes.
    2. Subsidiaries; Managing Parties: You may permit use of the Software in accordance with the terms of this Agreement by a Subsidiary only for so long as such entity remains your Subsidiary. You also may permit a third party with which you enter into a contract to manage your information technology resources (“Managing Party”), provided that (i) the Managing Party only uses the Software for your internal operations and not for the benefit of another third party or the Managing Party, (ii) the Managing Party agrees to comply with the terms and conditions of this Agreement and (iii) you provide LINK with written notice that a Managing Party will be using the Software on your behalf. You shall be responsible and fully liable for each Subsidiary’s and Managing Party’s compliance with or breach of the terms of this Agreement.
    3. General Restrictions: You may not, and you may not cause or allow any third party to:
      • decompile, disassemble or reverse-engineer the Software; or create or recreate the source code for the Software;
      • remove, erase, obscure, or tamper with any copyright or any other product identification or proprietary rights notices, seal, or instructional label printed or stamped on, affixed to, or encoded or recorded in or on any Software or Documentation; or fail to preserve all copyright and other proprietary notices in all copies of the Software and Documentation made by you;
      • lease, lend or use the Software for timesharing or service bureau purposes; sell, market, license, sublicense, distribute, or otherwise grant to any person or entity any right to use the Software except to the extent expressly permitted in this Agreement; or use the Software to provide, alone or in combination with any other product or service, any product or service to any person or entity, whether on a fee basis or otherwise;
      • modify, adapt, tamper with, translate, or create derivative works of the Software or the Documentation; combine or merge any part of the Software or Documentation with or into any other software or documentation; or refer to or otherwise use the Software as part of any effort to develop software (including, without limitation, any routine, script, code, or program) having any functional attributes, visual expressions, or other features similar to those of the Software or to compete with Wicket;
      • except with Wicket’s prior written permission, publish any performance or benchmark tests or analysis relating to the Software; or
      • attempt to do any of the foregoing. You may not run or operate the Software in a cloud, Internet-based computing, or similar on-demand computing environment.

 

  1. Technical Support and Maintenance.

The LINK Technical Support and Maintenance Terms and Conditions apply if you have purchased Support. The LINK Technical Support and Maintenance Terms and Conditions are incorporated by reference and are available at http://paywithlink.com/privacy/.  After any applicable support or service subscription period has expired, you have no further rights to receive any Support including Upgrades or Updates.

 

  1. Limited Warranty and Disclaimer.
    1. Limited Warranty: LINK warrants that, for a period of sixty (60) days from the purchase date (“Warranty Period”), the Software licensed hereunder will perform substantially in accordance with the LINK Technical Limited Warranty, which is incorporated by reference and is available at http://paywithlink.com/privacy/.
    2. Exclusive Remedy: In case of any breach of the above Limited Warranty, as your exclusive remedy and Wicket’s entire obligation and liability LINK will:
      • repair or replace the Software or
      • if such repair or replacement would in Wicket’s opinion be commercially unreasonable, upon Wicket’s receipt of your written representation and promise that you have removed all instances of the Software and will not use the Software, refund the price paid by you for the applicable Software.
    3. Exclusion of Warranty: THE ABOVE LIMITED WARRANTY WILL NOT APPLY IF:
      • .THE SOFTWARE IS NOT USED IN ACCORDANCE WITH THIS AGREEMENT OR THE DOCUMENTATION,
      • THE SOFTWARE OR ANY PART THEREOF HAS BEEN MODIFIED BY ANY ENTITY OTHER THAN LINKOR
      • A MALFUNCTION IN THE SOFTWARE HAS BEEN CAUSED BY ANY EQUIPMENT OR SOFTWARE NOT SUPPLIED BY WICKET.
    4. Disclaimer: EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, THE SOFTWARE IS PROVIDED “AS IS” AND LINK MAKES NO REPRESENTATIONS OR WARRANTIES, AND LINK DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR SYSTEMS INTEGRATION. WITHOUT LIMITING THE FOREGOING, LINK MAKES NO WARRANTY, REPRESENTATION, OR GUARANTEE AS TO THE SOFTWARE’S USE OR PERFORMANCE AND DOES NOT WARRANT, REPRESENT, OR GUARANTEE THAT THE OPERATION OF THE SOFTWARE WILL BE FAIL-SAFE, UNINTERRUPTED, OR FREE FROM ERRORS OR DEFECTS OR THAT THE SOFTWARE WILL PROTECT AGAINST ALL POSSIBLE THREATS.

 

  1. Limitation of Remedies and Damages.
    1. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, NEGLIGENCE, CONTRACT OR OTHERWISE, SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT OR IN CONNECTION WITH ITS SUBJECT MATTER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR EXTRA-CONTRACTUAL DAMAGES OF ANY KIND, LOSS OF GOODWILL, LOSS OF PERSONNEL SALARIES, LOST PROFITS OR REVENUE, DAMAGES DUE TO WORK STOPPAGE AND/OR COMPUTER FAILURE OR MALFUNCTION, AND/OR COSTS OF PROCURING SUBSTITUTE SOFTWARE OR SERVICES, WHETHER OR NOT FORESEEABLE, EVEN IF THE EXCLUSIVE REMEDIES PROVIDED BY THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE AND EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES.
    2. REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT, TORT AND/OR ANY OTHER LEGAL THEORY, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY FOR DIRECT DAMAGES UNDER THIS AGREEMENT OR IN CONNECTION WITH ITS SUBJECT MATTER EXCEED THE AMOUNT OF TOTAL FEES PAID OR PAYABLE BY YOU FOR THE SOFTWARE GIVING RISE TO SUCH CLAIM DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

 

  1. Intellectual Property Indemnity.
    1. Indemnity: LINK will indemnify, and, at its election, defend you against claims asserted against you in a suit or action if:
      • the claim is for direct patent infringement or direct copyright infringement, or for Wicket’s trade secret misappropriation and
      • the claim is (A) asserted against the Software, alone and not in combination with anything or (B) a combination of the Software.
    2. Exclusions: Notwithstanding anything else in this Agreement, LINK has no obligation to indemnify or defend you for claims asserted, in whole or in part, against:
      • .technology or designs that you gave to Wicket;
      • modifications or programming to Software that were made by anyone other than Wicket; or
      • the Software’s alleged implementation of some or all of a Standard.
    3. Conditions: As a condition of Wicket’s obligations under this Section 7, you must provide to Wicket:
      • .prompt written notice of the claim and your agreement to give LINK sole control over the defense and settlement of the claim; and
      • your full and timely cooperation.
    4. Wicket’s Consent: LINK will not be responsible for any cost, expense, or compromise that you make or incur without Wicket’s prior written consent.
    5. Remedies: LINK may, at its sole discretion and at is expense:
      • .procure for you the right to continue using the Software;
      • replace the Software with a non-infringing Software;
      • modify the Software so that it becomes non- infringing; or
      • upon your return of the Software to Wicket, and/or removal of the Software from your systems, refund the residual value of the purchase price paid by you for the infringing Software, depreciated using a straight-line method of depreciation over a three (3) year period from the date of delivery of the Software to you.
    6. Personal Indemnity: The foregoing indemnity is personal to you. You may not transfer your right of indemnity to anyone, including your customers.
    7. Exclusive Remedy: The indemnity section states Wicket’s entire obligation and your exclusive remedy for claims of patent or copyright infringement, or trade secret misappropriation, made in whole or in part against the Software.

 

Without prejudice to your payment obligations, you may terminate your license at any time by uninstalling the Software. LINK may terminate your license in the event that you materially breach the terms of this Agreement and you fail to cure such breach within thirty (30) days of receiving notice of such breach. Upon such termination, you shall promptly return or destroy all copies of the Software and Documentation.

 

  1. Additional Terms.
    1. Evaluation Software: If the Software has been identified by LINKas “Evaluation” Software, then the provisions of this section apply and shall supersede any other conflicting term of this Agreement. Your royalty-free, non- transferable, limited license to use the Evaluation Software, for evaluation purposes only, is limited to thirty (30) days unless otherwise agreed to in writing by Wicket. The Evaluation Software may contain errors or other problems that could cause system or other failures and data loss. Consequently, Evaluation Software is provided to you “AS IS” and LINK disclaims any warranty or liability obligations to you of any kind. Support is not available for Evaluation Software. Any information about the Evaluation Software gathered from its use shall be used solely for evaluation purposes and shall not be provided to any third parties.  If you fail to destroy the Evaluation Software after the evaluation period has expired, LINK may, at its discretion, invoice you in an amount equal to a commercially reasonable value of the Software and you shall pay such invoice upon receipt.
    2. Beta Software: If the Software that you have received has been identified by LINK as “Beta” Software, then the provisions of Section 9(a) above shall apply accordingly. LINK has no obligation to you to further develop or publicly release the Beta Software. Support is not available for Beta Software. If requested by Wicket, you will provide feedback to LINK regarding testing and use of the Beta Software, including error or bug reports. You agree to grant LINKa perpetual, non-exclusive, royalty-free, worldwide license to use, copy, distribute and make derivative works and incorporate the feedback into any LINK product at Wicket’s sole discretion. Upon receipt of a later unreleased version of the Beta Software or release by LINK of a publicly released commercial version of the Beta Software, you agree to return or destroy all earlier Beta Software received from Wicket.
    3. “Free” or “Open-Source” Software: The Software may include components (including, without limitation, programs, applications, tools, utilities, libraries, and other programming code) that are made available from third parties under a free or open source software licensing model (“FOSS Code”). FOSS Code components included with the Software are redistributed by LINK under the terms of the applicable FOSS Code license for such components; your receipt of FOSS Code components from LINK under this Agreement neither enlarges nor curtails your rights or obligations defined by the FOSS Code license applicable to the FOSS Code components. Copies of the FOSS Code licenses for FOSS Code components included with Software are included with or referenced in the Software’s Documentation.

 

  1. Privacy and Collection of Personal or System Information.
    1. The Software, Support or service subscription may employ applications and tools to collect personally identifiable, sensitive or other information about you and users (e.g., including, without limitation, your and users’ name, address, e-mail address and payment details), their computers, files stored on their computers, or their computers’ interactions with other computers (collectively, “Data”).
    2. The collection of this Data may be necessary to provide you and users with the relevant Software, Support or service subscription functionalities as ordered (e.g., including, without limitation, detecting and reporting threats and vulnerabilities on your and users’ computer network), to enable LINKto improve our Software, Support or service subscription (e.g., including, without limitation, content synchronization, device tracking, troubleshooting, etc.), and to further or improve overall security for you and users. You may be required to uninstall the Software or disable Support or its service subscription to stop further Data collection that supports these functions.
    3. By entering into this Agreement, or using the Software, Support or service subscription, you and users agree to the LINK Privacy Policy on the LINK web site, http://paywithlink.com/privacy/, and to the collection, processing, copying, backup, storage, transfer and use of this Data by Wicket. LINK will only collect, process, copy, backup, store, transfer and use personally identifiable information in accordance with the LINK privacy policy on the LINK web site, which is incorporated herein and is available at http://paywithlink.com/privacy/.

 

Upon thirty (30) days’ prior notice LINK may request, and you must provide an accurate Software deployment “Verification Report” for the Software.   LINK will only request a Software deployment Verification Report one time per year.  If the Software deployment verification report identifies that you are out of compliance with the license terms of this Agreement, you will be required to purchase the additional licenses and pay any reinstatement fees associated with the licenses and/or support and an out-of-compliance fee may also be assessed.  LINK shall have the right to confirm the accuracy of the verification report by on-site inspection or by review of documents.  You agree to cooperate with any requests for an on-site inspection and to provide documents reasonably requested by LINK relating to your use of the Software and your compliance with this Agreement.  The Verification Report shall describe your use of the Software and shall include:

  1. An identification of the systems on which the Software has been installed;
  2. An identification of the users of the Software; and
  3. An identification of the separate locations from which the Software has been used at least 3 times in the trailing 12 months.

 

  1. Export Controls.

You acknowledge that the Software is subject to U.S. export regulations. You shall comply with applicable export and import laws and regulations for the jurisdiction in which the Software will be imported and/or exported. You shall not export the Software to any individual, entity or country prohibited by applicable law or regulation. You are responsible, at your own expense, for any local government permits, licenses or approvals required for importing and/or exporting the Software.

 

  1. Governing Law.

All disputes arising out of or relating to this Agreement or its subject matter will be governed by the substantive laws of the State of Utah without giving effect to its rules relating to conflict of laws.  The United States District Court for the District of Utah shall have exclusive jurisdiction over all disputes arising out of or relating to this Agreement or its subject matter.

 

Each party hereto acknowledges that by reason of its relationship with the other party hereunder, it may have access to confidential information and materials concerning the other party’s business, technology, and/or products that is confidential to the other party (“Confidential Information”). Each party’s Confidential Information is of substantial value to the party, which value could be impaired if such information was disclosed to third parties or used in violation of this Agreement. Written or other tangible Confidential Information must at the time of disclosure be identified and labeled as Confidential Information belonging to the disclosing party. When disclosed orally or visually, Confidential Information must be identified as confidential at the time of the disclosure, with subsequent confirmation in writing within fifteen (15) days after disclosure. Each party agrees that it will not use in any way for its own account or the account of any third party, such Confidential Information, except as authorized under this Agreement, and will protect Confidential Information at least to the same extent as it protects its own Confidential Information and to the same extent that a reasonable person would protect such Confidential Information. Neither party may use the other party’s Confidential Information except to perform its duties or exercise its rights under this Agreement. The Confidential Information restrictions will not apply to Confidential Information that is: (i) already known to the receiving party at the time of access hereunder, (ii) becomes publicly available through no wrongful act of the receiving party, (iii) independently developed by the receiving party without benefit of the disclosing party’s Confidential Information, (iv) has been rightfully received from a third party not under obligation of confidentiality or (v) is required to be disclosed by law, provided the party compelled to disclose the Confidential Information provides the party owning the Confidential Information with prior written notice of disclosure adequate for the owning party to take reasonable action to prevent such disclosure, where reasonably possible. Unless otherwise agreed to by both parties, upon termination of this Agreement or an applicable Addendum, each party will return the other party’s Confidential Information.

 

  1. Miscellaneous Provisions.

This Agreement, including all documents incorporated by reference, represents the entire agreement between the parties and expressly supersedes and cancels any other communication, representation or advertising whether oral or written, on the subjects herein.  No terms or conditions of any purchase order of yours or other document of yours will govern the transactions contemplated by this Agreement. This Agreement may not be modified except by a written addendum issued by a duly authorized representative of Wicket. No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by Wicket. If any provision of this Agreement is held invalid, unenforceable, or prohibited under law, then such provision will be deemed restated to reflect the original intention of the parties as nearly as possible in accordance with applicable law and the remainder of this Agreement shall continue in full force and effect.