Terms and Conditions (“Terms”) comprise the terms and conditions under which
“Golden Five LLC” will supply licenses and/or Services. You accept these terms
on behalf of the entity you represent (“Company”) (together with its
Affiliates) by either:
or electronically signing the Terms;
- Placing an order with “Golden Five LLC” on behalf of the Company.
acceptance, the Terms will remain in effect until terminated by either party.
Either party may terminate the Terms at any time and for any reason by
providing 30 days prior written notice to the other party. Sections 1, 3, 6, 7,
8, 9, 11, 12, 13, 15, 17, 18, and 19 will survive any termination of the Terms.
DEFINITIONS AND INTEGRATION
In addition to any definitions contained
within the body of these Terms, the following definitions apply: “Affiliates”
means any person, corporation or other entity that now or in the future,
directly or indirectly controls, is controlled by or is under common control
with Company. For purposes of this definition, “control” means with respect to:
(a) with respect to a corporation, the ownership, directly or indirectly, of
fifty percent (50%) or more of the voting power to elect directors thereof; and
(b) with respect to any other entity, the power to direct the management of
such entity. “Contract” means an agreement, an Order Confirmation, a statement
of work or similar document for the supply of licenses or the provision of
Services between “Golden Five LLC” and Company. “Licensor” means the legal
entity that is the owner of the intellectual property rights vested in the
software with the authority to define the End User License Agreement (“EULA”),
Product Terms (“PT”) or other terms and conditions for the use of the software
and licenses. “Order Confirmation” means “Golden Five LLC”’s acceptance of
Company’s purchase order in writing. Company’s order or an automatically
generated response by “Golden Five LLC” do not represent a binding Order
Confirmation. “Services” means any delivery, installation, configuration,
consultation or other professional services as specified by the parties in a
Contract. “Golden Five LLC” means the “Golden Five LLC” entity named in an
Order Confirmation or a Contract. Unless otherwise agreed in writing by “Golden
Five LLC”, all licenses and Services are supplied under these Terms to the
exclusion of any other terms and conditions set out or referred to in any
document or other communication used by Company prior to or in concluding a
Contract. These Terms will apply to each Contract. In the event of a conflict
between the Terms and a Contract, the Terms will control unless all of the
following apply: (i) the Contract clearly identifies the applicable section of
the Terms that is to be modified; and (ii) the Contract clearly states that
such provision of the Contract supersedes the conflicting or inconsistent
provision in the Terms. Any other attempt to alter or amend these Terms will be
deemed void and have no effect. Any modifications to these Terms contained
within a Contract are effective as to that Contract only and will not modify
the Terms for any other purpose whatsoever. These Terms cannot be modified
except in a written document signed by all parties.
ORDER AND DELIVERY POLICY
quotations and purchase orders are not binding upon either party until an Order
Confirmation is delivered. The Order Confirmation is subject to availability by
Licensor. Company will receive the licenses by electronic transmission,
electronic access or download. Company is responsible for the payment of each
order it places and all orders by its Affiliates.
Five LLC” will not accept the return of supplied licenses unless such returns
are admissible as per the Licensor’s return policies. If the licenses received
are not those detailed in the Contract, Company shall inform “Golden Five LLC”
no later than 10 business days of delivery.
4 ACADEMIC, NON-PROFIT AND GOVERNMENT LICENSES
Certain products are only available for
purchase by qualified institutions, such as educational institutions
(“Academic” products), qualified non-profit organizations (“Non-Profit”
products) or government units (“Government” products). By identifying itself as
a qualified institution, Company represents that it is familiar with all of the
Licensor’s requirements with respect to such product and that it complies with
all of the Licensor’s requirements for such Academic, Non-Profit or Government
5.1 “Golden Five LLC” shall perform the
Services with due care and in accordance with the Contracts.
5.2 “Golden Five LLC” will not be required
to follow any requests or instructions (“Change Request”), which change or
supplement the substance or scope of the Services described in a Contract. If
“Golden Five LLC” provides the Services described in a Change Request, then Company
shall pay for such Services pursuant to these Terms and the applicable
5.3 In the absence of an expressly agreed
invoicing schedule, Company shall pay all amounts relating to Services provided
by “Golden Five LLC” at the end of every calendar month in arrears.
6.1 “Golden Five LLC” will provide the price of the licenses and the Services. All prices are subject to applicable sales or value-added taxes. All prices and availability are subject to change unless agreed upon through a binding Order Confirmation or a Contract signed by both parties.
6.2 If Services, including subscription
Services, for Company are performed by a party other than “Golden Five LLC”,
the fee for such a Service will be determined by the entity performing the
Service. Such fees are not always fixed and may be subject to the usage of the
Services by Company. Company shall accept the billing model and will pay the
fee in accordance with the deadline specified by the third party. Company is
solely responsible to ensure that it understands the billing model offered by
the third party.
shall timely calculate and pay any withholding taxes, import taxes, levies and
duties based on cross-border transactions, including those resulting from
transactions where “Golden Five LLC” and Company are tax residents of different
countries. If Company is required by law to deduct or withhold any taxes from
any amount payable on a cross border transaction, the amount payable will be
increased so that after making all required deductions and withholdings,
“Golden Five LLC” receives an amount equal to the amount it would have received
had no such deductions and withholdings been made.
WARRANTIES FOR LICENSES
Company acknowledges that “Golden Five LLC” only delivers licenses to software from third party Licensors. Such third-party licenses will be distributed by “Golden Five LLC” subject to the applicable EULA and PT of the software Licensor, which may contain a limited warranty from Licensor. Warranty terms and periods vary by Licensor and product. All of Company’s rights and remedies with respect to an Order Confirmation, purchase, possession, use of the products, and all maintenance, update, warranty, liability, and any other obligations related to the products will be governed by the applicable policies and procedures of the Licensor stated in the EULA, PT or other documentation provided by Licensor. Company acknowledges that it will be required to enter into a EULA, PT or similar end-user agreement with the Licensor as a condition precedent to using Licensor’s software. The EULA/PT or similar agreement will outline all warranties and representations offered by the Licensor to Company with respect to the licenses purchased. “Golden Five LLC” does not make any representations or warranties relating to any software.
9 NO WARRANTIES FOR THIRD-PARTY SERVICES
All third-party services distributed by “Golden Five LLC” are delivered with the service provider’s limited warranty. The warranties for third-party services that are not performed by the “Golden Five LLC” will be governed by the applicable policies and procedures of the service provider. “Golden Five LLC” does not make any express or implied warranties for third party services.
WARRANTIES FOR “GOLDEN FIVE LLC” SERVICES
Warranties for all Services performed by “Golden Five LLC” will be stated in
the applicable Contract and will apply only to the Contract in which they are
ORGANIZATION AND AUTHORITY
party represents that: (i) they are a valid legal entity in good standing under
the laws of the jurisdiction in which they are organized; (ii) they have full
power and authority to enter into these Terms and any Contract, which will
create a binding agreement between the parties; and (iii) the performance by
the parties hereunder will not violate any obligation or duty owed to a third
DISCLAIMER OF WARRANTIES AND DAMAGES; LIMITATION OF LIABILITY
12.1 Except as stated herein, “Golden Five
LLC” hereby disclaims all warranties of any kind, express or implied, including
any implied warranties of merchantability, fitness for a particular purpose and
non-infringement. In no event shall “Golden Five LLC”, its shareholders,
directors, officers, employees or other representatives be liable for general,
indirect, consequential, or punitive damages related to any product sold.
12.2 “Golden Five LLC”’s liability for any
damages relating to licenses or Services available through “Golden Five LLC”
are limited to the value of the amounts paid by Company under the Contract for
such licenses or Services over the last twelve calendar months preceding the
incident giving rise to the damage. In no event will “Golden Five LLC” be
liable for any incidental, consequential, special, punitive or indirect damages
of any kind, including damages resulting from delay, loss of profits, lost
business opportunity, loss of content, interruption of business or loss of
goodwill, which may arise in connection with or pertaining to these Terms or
any Contract, even if such party has been notified of the possibility or
likelihood of such damages occurring under any theory of law (including tort or
12.3 Company agrees that any Contract or
other document relating to the purchase of licenses or Services submitted to
“Golden Five LLC” that includes any warranty to Company or that includes
language that may create a liability for “Golden Five LLC”, or conflicts with
these Terms, is void and of no effect, unless it complies with the integration
requirements stated in Section 1.
INTELLECTUAL PROPERTY RIGHTS
13.1 Nothing in these Terms provides Company
any right, title or interest in or to any intellectual property comprised in
the licenses or the Services, which will at all times remain the property of
“Golden Five LLC” or of the Licensors, as applicable.
13.2 Company acknowledges that the EULA/PT
or similar agreement will outline all usage rights offered by the Licensor to
Company with respect to the licenses purchased.
13.3 Company represents and warrants that it
is buying the licenses for its own internal use and not for resale.
13.4 In the event of conflict between these
Terms and the EULA/PT or similar agreement regarding the scope of the
intellectual property rights, the warranties and representations conferred to
Company, the EULA/PT will prevail.
Five LLC” will not provide any technical support, unless expressly provided in
NET 30 DAYS PAYMENT TERMS
15.1 If payment terms are not indicated in
an Order Confirmation, invoices are automatically due 30 calendar days
following the invoice date.
15.2 If Company does not pay the amounts
owed in a timely manner, then Company shall pay interest charges and late
payment fees on the outstanding amount, without any written demand or notice of
default being necessary. All past due amounts will bear interest of 2% per
month until the invoice is paid in full unless otherwise mention in customer
15.3 Company shall pay all charges incurred
by authorized users of its account, by credit card, by wire transfer or other
similar payment mechanisms in effect. To the extent permitted by applicable
law, “Golden Five LLC” may require Company to pay transaction charges levied by
credit card issuers relating to purchases. Company shall reimburse “Golden Five
LLC” for all bank fees relating to checks, credit card or bankcard sales drafts
returned by the Company’s bank or card issuer. Company shall pay all attorney
fees, court costs, collection agency fees, or any other costs incurred by
“Golden Five LLC” in collecting any overdue amount owed.
Five LLC” shall not be liable to Company for any loss or damages which may be
suffered by Company as a direct or indirect result of the supply of licenses
and Services by “Golden Five LLC” being prevented, hindered, delayed or
rendered uneconomic by reason of circumstances or events beyond “Golden Five
LLC”’s reasonable control including but not limited to acts of God, war, riot,
strike, lock-out, fire, flood, and storm.
to applicable law or regulation, the parties shall maintain the confidentiality
of any Confidential Information and shall not, without the prior written
consent of the disclosing party (“Discloser”), disclose such confidential
information to any third party (excluding affiliates). “Confidential
Information” means any information that is designated as “Confidential” by the
Discloser or that the receiving party (“Recipient”) should reasonably believe
to be confidential given the circumstances. Confidential information excludes
any information that:
(i) is known by the Recipient prior to
(ii) becomes publically available through no
fault of the Recipient;
(iii) is disclosed to Recipient by a third
party with the legal right to make such disclosure; or
(iv) is independently developed by Recipient
without use or reference to the Discloser’s Confidential Information.
JURISDICTION AND GOVERNING LAW
case of any controversy or dispute, “Golden Five LLC”, Company and/or the
Affiliates shall discuss the matter in controversy or dispute and make a
diligent effort to find an amicable solution. If the dispute is not resolved by
finding an amicable solution, all disputes arising out of or in connection with
these Terms or their validity will be finally resolved by the courts of the California,
USA. The United Nations Convention on the International Sales of Goods will not
apply to these Terms or any Contract.
19.1 The invalidity or unenforceability of
any provision of these Terms will not adversely affect the validity or
enforceability of the remaining provisions.
19.2 All notices and other communications
required or permitted to be served or given shall be in writing.
19.3 The failure of “Golden Five LLC” to
enforce the terms of these Terms does not constitute a waiver of it and will in
no way affect the right to later enforce such terms.
19.4 Any heading, caption, or paragraph
title contained in these Terms is inserted only as a matter of convenience and
in no way defines or explains any paragraph or provision hereof.
19.5 These Terms may be executed in any number
of counterparts, which taken together will represent a single document.
Digital, facsimile, and other electronic signatures will be deemed to be
originals and will be enforceable between the parties.
19.6 These Terms together with the
Contracts, represent the entire agreement between the parties regarding the
subject matter hereof, and supersede all other agreements and understandings.
Audit and Penalty
Five LLC has rights to audit our software and products audit in the customer premises.
If customer fails the audit then customer is liable to pay an amount of USD $1
Million or an amount assess by the auditor.