- In return for granting this non-exclusive, non-transferrable license to use Company’s data and technology (“Technology”) as described herein, Customer agrees to pay Company the total annual subscription fee, exclusive of any taxes that apply currently or may be levied in the future, which will also be Customer’s responsibility, as detailed in Exhibit A (“Annual Subscription Fee”) and according to the schedule described in Exhibit A. Customer agrees to pay all invoices and any applicable taxes within twenty-one (21) days from receipt of invoice. Failure to pay an invoice by the due date may result in Client’s access to the Technology being limited or discontinued. In the event of discontinuation, Company may require Client to pay any outstanding balance before reinstating access. Whether or not Client’s access is limited or discontinued, interest will accrue on any delinquent accounts at the rate of 1.5 percent per month, or the maximum rate permitted by applicable law, from the date such balance was due until payment is made in full. Inthe event that Company has to pursue legal action to enforce the collection of the fees due by Client, all fees due under this Agreement for any subscriptions covered by this Agreement shall be due and payable immediately. Client agrees to reimburse Company for any legal or other fees incurred to enforce or collect upon this Agreement.
- For the period of this license and conditioned on Client’s compliance with the terms of this Agreement, Company grants to Client a non-transferable and non-exclusive right to use the Technology for Client’s internal use only, subject to the terms set forth in this Agreement. Under no circumstances may Client sell, publish, disclose, transfer, distribute or otherwise use or make available the Technology, in any part, to any other person or entity, nor may Client assign any of its rights under this Agreement to any other person or entity. Client is specifically and directly prohibited from importing the Technology, in whole or in part, into any internal database of any type such as, but not limited to, a CRM system.
- Only a named user may access the Technology. A “Named User” is any person employed by Client who is authorized to use the Technology or associated data, whether online or offline. A Named User must be disclosed to Company.
- Client acknowledges and agrees that all intellectual and proprietary rights in the Technology are the sole and exclusive property of Company, developed at great cost to Company. Client agrees that Company retains fullrights to the application, licensing, and data, none of which Client may publish or distribute in any manner or form without the written consent of Company.
- Client agrees that all data contained, imported or exported to the Technology is and shall be considered the confidential property of Company.
- This Agreement is not assignable in who or part without Company’s written consent. In the event of an approved assignment, the terms of this Agreement may be revised. Company is not obligated to grant consent. “Assign” includes use of this Technology or the Agreement for the benefit of any person or entity not specifically named in this Agreement or disclosed to and approved by the Company.
Disclaimer and Limitation of Liability
- Except as specifically set forth below, the Technology and any associated data is provided “as is”. Data obtained from public sources is assumed and believed to be reliable but may in some cases be incomplete. Company does not guarantee the accuracy or completeness of the data.
THE COMPANY MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING SPECIFICALLY, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AS TO THE TECHNOLOGY PROVIDED UNDER THIS AGREEMENT.
- Limitation of Liability. IN NO EVENT, WHETHER BASED UPON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE WILL COMPANY BE LIABLE TO CLIENT OR TO ANY OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL,PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF THE USE OF THE PRODUCT AND DOCUMENTATION (EVEN IF COMPANY HAS BEEN ADVISED OF OR COULD HAVE REASONABLY FORESEEN THE POSSIBILITY OF SUCH DAMAGES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFITS, OR BUSINESS, COSTS OF DELAY, CLAIMS OF CUSTOMERS’ CUSTOMERS. REGARDLESS OF THE BASIS OF RECOVERY CLAIMED, THE AGGREGATE LIABILITY OF THE COMPANY WITH RESPECT TO ANY AND ALL MATTERS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AGGREGATE SUBSCRIPTION FEE PAID BY CUSTOMER.
Term and Termination
- Term. This Agreement begins on the Effective Date and has an initial term of three (3) years (“Initial Term”), after which it will automatically renew for five (5) successive periods of one (1) year (each a “Renewal Term”), unless terminated by either party in written notice at least ninety (90) days before the next effective renewal date.
- Termination. This Agreement may be terminated by any party with or without cause by written notice delivered at least ninety (90) days prior to the intended date of termination. Notice shall be in accordance with the requirements of this Agreement. Company may terminate Client’s access to the Technology if it reasonably believes Client has violated the terms or spirit of this Agreement. If Company can establish Client did in fact misuse the Technology, Client agrees the total amount of fees contemplated by this agreement shall become due and owed immediately, accruing interest as described in this Agreement until paid in full.
- Duties upon termination. Upon termination of Client’s access for any reason, Client agrees to (i) cease and have all Named Users cease any further use of Product, (ii) destroy all printed or electronic copies ofProduct, (iii) return to Company or destroy the original and any copies of documentation provided, and (iv) certify in writing to Company that such action has been done. Client agrees that Company may seek without bond any injunctive relief necessary to enforce this provision, and that Client will reimburse Company for any costs associated with obtaining an injunction if one is required.
- All notices shall be in writing, delivered by common carrier with proof of receipt.
Notice to Company shall be addressed to:
Josh Sandberg, President
16000 N. 80th Street, Suite E
Scottsdale, AZ 85260
- Except in the case of Client violating the security or confidentiality of this Agreement, a party breaching any provision of this Agreement shall have the right to cure such breach within thirty (30) days after receiving written notice of the breach from the other party. If the breach is not cured within the thirty (30) day period, the breaching party will be in default and the non-breaching party may terminate this Agreement. A breach relating toone provision of this Agreement will constitute a breach of the entire Agreement. Nothing shall prevent Company from treating a breach of the security or confidentiality provisions of this Agreement under this paragraph, but the decision whether to do so is solely Company’s.
- Either party may intentionally or inadvertently disclose to the other party confidential information relating to its business and affairs (“Confidential Information”). Neither party will disclose Confidential Information of the other to any third party without written consent from the other party, nor will they disclose or make use of any Confidential Information other than in the performance of this Agreement. Each party shall use at least the same degree of care to avoid disclosure of Confidential Information as it uses with respect to its own Confidential Information and will obtain an agreement from any third party to whom it may disclose confidential containing provisions substantially similar to those set out in this Section. Either party may seek injunctive relief to enforce its rights under this Section. The foregoing obligations will survive the termination or expiration of this Agreement.
- Confidential Information includes information or know-how identified as confidential, or, given the circumstances surrounding disclosure, should in good faith be treated as confidential. Confidential Information does not include information: (a) generally available to or known to the public, (b) previously known to the recipient, (c) independently developed by the recipient outside the scope of this Agreement, (d)lawfully disclosed by a third party, or (e) disclosed during testimony before any judicial or quasi-judicial court or tribunal.
- Training. At no cost, Company will provide standard training and a designated phone number to direct all support inquiries related to the use of the Technology during normal business hours. Company’s current business hours are 9:00 AM to 5:00 PM Mountain Standard Time, Monday through Friday, excepting federal and Arizona state holidays. Special training or on-site training are available on request and may result in additional fees.
Survival. Sections 3(c) and 7 shall survive the termination of this Agreement.
- Arbitration. This Agreement shall be governed by the laws of the State of Arizona without regard to its conflict of laws provisions which could require application of the laws of a jurisdiction other than Arizona. In the event of a dispute, the parties agree to pre-litigation mediation and arbitration before a sole arbitrator in Austin, Texas provided by JAMS and under JAMS rules. Arbitration shall occur under JAMS expedited procedures if available. Decisions of the arbitrator shall be enforceable in the state and federal courts located in Travis County, Texas.
- Interpretation and Waiver. The failure of either party to enforce a provision under this Agreement once shall not have any impact on the provision’s future enforceability. If any provision of this Agreement is subsequently found to be invalid or unenforceable, it is the Parties intent that the provision be severed, and the remainder of the Agreement be construed in such a way that it meets the clear intent of the parties as determined from the four corners of the Agreement.
- Non-Disparagement. The Parties will not make any false, misleading or disparaging statements regarding each other, their technology, services, capabilities, features, functions or performance, including without limitation in or in the course of any sales, marketing, publicity, and other activities under this Agreement.
- Customer acknowledges it has read this Agreement and agrees to be bound by its terms and conditions. Customer also agrees that this Agreement is the complete and exclusive statement of agreement between the parties and supersedes all proposals or prior agreements, oral or written, and any other communications between the partiesrelating to the subject matter of this Agreement. Each party acknowledges that it is not entering into the Agreement on the basis of any representations not expressly contained herein. No amendments to this Agreement shall be enforceable unless in writing and signed by Company and Customer.