AFFILIATE shall mean any corporation, limited liability company, partnership or other similar association that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with Customer. For purposes of this definition, the term control (including, with correlative meaning, the terms controlled by and under common control with) shall mean the possession, directly or indirectly and whether through ownership, by contract or otherwise, of more than fifty percent of all of the voting power of the shares (or other securities or rights) entitled to vote for the election of directors or other governing authority; provided that such entity shall be considered an Affiliate only for the time during which such control exists.
LICENSED SOFTWARE shall mean Licensed Software that is a web-based application that forwards requests to the server program, which performs the majority of data processing operations and all supporting Browser based applications.
USER shall mean any single employee or Authorized Affiliate with whom login credentials are provided at any time during a calendar month for accessing the Licensed Software.
Licensor hereby grants to Customer, during the term of this Agreement, a nonexclusive, nontransferable and limited license to use the Licensed Product and access the Servers via the Internet solely for business activities of Customer. Customer and Affiliate's sole rights to use the Licensed Product and access the Servers shall be shall be those described in this Agreement.
Customer shall not allow any entity other than authorized Affiliates to use the Licensed Product or access the Servers without Licensor's prior written consent. Customer shall ensure that each authorized Affiliate uses the Licensed Product in accordance to the terms of this Agreement. No authorized Affiliate shall have any other rights or interest in or to the Licensed Product. Each authorized user shall be required to have unique login credentials which may not be shared or transferred to any other user.
Unless otherwise provided in this Agreement, Licensor provides to Customer the Licensed Product and any modifications thereto on an AS IS basis.
Except as otherwise provided in this Agreement, Customer shall not (a) copy, reproduce, modify, or excerpt any of the Licensed Product for any purpose; (b) distribute, rent, sublicense, share, transfer or lease the Licensed Product, to any person or entity which is not a party to this Agreement; (c) translate, disassemble, decompile, reverse engineer or otherwise obtain copies , translations or other versions of the source code for the Licensed Product, or attempt to do any of the foregoing; or (d) permit any entity or person other than the employees of Customer to use the Licensed Product and access the Servers. In addition, Customer shall prevent all Authorized Affiliates from taking any action otherwise prohibited under this Section. Any violation must be reported immediately to the Customer.
The Parties agree that Licensor retains all rights to the Licensed Product, including all rights in patents, copyrights, trademarks and trade secrets encompassed in the Licensed Product. No title to or ownership of the Licensed Product is, or shall be, transferred to Customer. Customer agrees that it does not obtain any rights in the Licensed Product except the limited right to use the Licensed Product as provided herein.
The initial term of this Agreement shall be on a month-to-month basis, in which the Customer has the right to cancel their subscription at anytime. If cancellation is done after the 1st of the month, the Customer will not be reimbursed for the unused days per that prepaid month.
Licensor shall be entitled to terminate this Agreement without further notice should Customer fail to pay any amount due hereunder or otherwise fail to comply with any term of this Agreement, but only if Customer fails to cure such default or breach to Licensor's satisfaction within three (3) calendar days after date of written notice from Licensor.
Customer is obligated to pay to Licensor all Monthly Minimum payments through the end of the then current term of the Agreement. Notwithstanding any termination hereof, Customer shall pay all charges owed to Licensor as of the date of termination on said date, including all Monthly Minimum payments for each month remaining in the current term of the Agreement except for termination for cause by Customer.
Following the termination of this Agreement for any reason, Sections 1, 2.3, 2.4, 2.5, 3.2, 6, 7, 10 -13 shall survive and continue to be applicable to the Parties.
In consideration of the rights and licenses conveyed herein to Customer in and to the Licensed Product, as well as the obligations to be performed by Licensor hereunder, Customer agrees to pay Licensor a monthly recuring charge based on the program tier chosen and for additional support services (if necessary) as mutually agreed in the “Order”.
Customer shall pay all sales, use, personal property, excise, license and franchise taxes as well as any other similar fees, charges or assessments which arise as a result of this Agreement or which may be imposed in connection with the Licensed Product. Customer is obligated to determine what, if any, state or federal taxes are due and to remit such taxes directly to the appropriate taxing authority(s). To the extent that any taxing authority subsequently determines that the aforementioned taxes, fees, charges, or assessments should have been paid by the Customer, and the taxing authority holds Licensor responsible for the payment of any such taxes or fees, Customer, upon written notification from Licensor, agrees to promptly remit all amounts due to Licensor, along with any late fees, penalties or other amounts due to the taxing authorities. Upon receipt of any payments of taxes or fees from the Customer, Licensor will promptly remit all amounts due to the appropriate taxing authorities.
The Customer shall be responsible for assigning one or more Software Administrator(s) to fulfill the responsibilities to maintain system functionality. Such Administrators are responsible for the following activities; serve as primary contact between Customer and Licensor, serve as primary contact for Customer’s user support, document all support requests with screenshots, and detailed description utilizing Licensor’s online feedback portal, maintain Customer’s database administrative responsibilities.
Customer shall be responsible for any and all activities that occur under or in connection with the usernames and passwords of any individual for whom Customer has authorized or established a username and password. Customer certifies that it is, and will remain during the term of this Agreement and any extensions thereto, in compliance with all applicable laws and/or regulations with respect to password security.
Customer shall take, and shall require all Authorized Affiliates to take, all precautions, including those specifically requested by Licensor, necessary to protect, defend and preserve the rights of Licensor in and to the Licensed Product.
Customer agrees that, for the term of this Agreement and thereafter for so long as Licensor’s intellectual property or derivatives thereof are in the Customer’s possession, Customer will not use Licensor’s intellectual property in any way other than as specified in this agreement.
Licensor retains the right to modify, enhance, update, improve or otherwise change the Licensed Product, as it desires. The Licensed Product, and all modifications, enhancements, updates, improvements and changes to the Licensed Product, are and at all times shall be the sole property of Licensor, regardless of whether Customer has had any role in the development thereof.
Except as set forth in this agreement, licensor disclaims and customer waives all warranties, express or implied, relating to the licensed product or the services provided by the licensor herunder, including, but not limited to, warranties of merchantability and fitness for a particular purpose or intended use, any warranty of title or noninfringement, any warranty of compatibility between the licensed product or services furnished hereunder and customer’s equipment, software, or data, or any warranty that the licensed product will run error-free or that connectivity of the servers to the internet will be uninterrupted the quality of any products, services or information, or that other materials or services purchased or obtained by customers through the service will meet customer’s expectations. Customer agrees that it has had adequate opportunity to evaluate the licensed software and for determining the suitability of such licensed software for its purposes. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer of such warranties may not apply.
Licensor will not guarantee, represent or warrant that access to the servers will be uninterrupted or error free, or that any defect to the licensed software or the servers will be corrected.
The information contained in the database has been obtained from sources considered by licensor to be reliable. However, the accuracy and completeness thereof are not guaranteed and licensor and its third-party suppliers shall have no liability for errors or omissions with respect to the service and its delivery, regardless of the cause or source of such error or omission. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you. This warranty gives the customer specific legal rights and the customer may also have other legal rights that vary from state to state. Neither licensor nor any of its third-party suppliers shall have any liability to a user or to others for any lost profits or indirect, special, consequential, punitive or exemplary damages, even if advised in advance of the possibility of such damages.
Notwithstanding anything to the contrary in this agreement, the licensed documentation or otherwise, licensor, its subsidiaries or related companies, and its employees and suppliers (“licensor parties”) shall not be liable to customer (nor to any person or entity claiming rights derived from customer or any affiliates or brokers) with respect to any subject matter of this agreement under contract, negligence, tort, strict liability or any other legal or equitable theory, with respect to the licensed product, the connectivity of the servers to the internet, or the services furnished hereunder (including services furnished pursuant to supplements to this agreement) except for direct damages caused solely by the acts of licensor parties, and licensor parties shall not be liable to customer for any such direct damages in excess of an amount equal to the charges paid by customer to licensor pursuant to this agreement within the immediately preceding six (6) month period of time. Customer agrees that licensor parties shall not be liable for any indirect, incidental, special, consequential, punitive or exemplary damages of any kind under any circumstances, including, but not limited to, lost profits, loss of business or other economic damage as a result of breach of this agreement even if advised of the risk of such damages in advance.
Notwithstanding anything to the contrary contained herein, there shall be no limitation on actual damages for any loss or claim arising from the gross negligence or willful misconduct of licensor, licensor’s officers, directors, employees or agents.
In addition to the other obligations of the Parties hereunder, each Party agrees to use reasonable care, but in all events at least the same degree of care that it uses to protect its own confidential and proprietary information of similar importance, to prevent the unauthorized use, disclosure, or availability of proprietary Information of the other Party. In addition, Customer shall prevent any unauthorized copying, use, distribution, installation, or transfer of possession of the Licensed Product.
Each Party may use or disclose Confidential Information, if and to the extent: (a) required by any request or order of any government authority; (b) otherwise required by law; or (c) necessary to establish its rights under this Agreement; provided that, in each case, the Disclosing Party will first notify the other Party of such requirement, permit the other Party to contest such requirement if reasonably appropriate, and cooperate with the other Party in limiting the scope of the proposed use or disclosure and/or obtaining appropriate further means for protecting the confidentiality of the Confidential Information.
Customer shall have exclusive ownership rights for all data entered into the system as “Internal Entries”. Licensor is prohibited from sharing Customer’s “Internal Entries” to other customers without written consent from Customer who created those “Internal Entries”.
In the event a dispute between Licensor and Customer arises out of or is related to this Agreement for any reason other than non payment of Licensed Products or Services, either Party may request in writing that representatives of the Parties meet and negotiate in good faith to attempt to resolve the dispute without a formal proceeding. During the course of such negotiations, all reasonable requests made by one Party to the other for information, including copies of relevant documents, will be honored. The specific format for such discussions will be left to the discretion of the designated representatives.
In the event the applicable dispute is not resolved as outlined in Section 12.1 above, and if either Party wishes to pursue the dispute, either Party may submit it to binding arbitration in accordance with the rules of the American Arbitration Association. The Parties shall request a list from the American Arbitration Association of five possible arbitrators who shall each have had at least five years experience in some aspect of computer networking matters. Each of the Parties will select one of these arbitrators and the Parties or their selected arbitrators shall jointly select the third arbitrator from the proposed list. Any arbitration proceeding under this Agreement shall be conducted in Honolulu Hawaii. The arbitrators shall have no authority to award any punitive or exemplary damages, or to vary or ignore the terms of this Agreement, and shall be bound by controlling law.
This Agreement, including the Exhibits thereto, constitutes the entire understanding between the Parties and supersedes all proposals, communications and agreements between the Parties relating to its subject matter. No amendment, change, or waiver of any provision of this Agreement will be binding unless in writing and signed by both Parties.
This Agreement will be governed by and construed in accordance with the laws of the State of Hawaii applicable to contracts made and performed therein, without taking into account any conflict of laws principles. Any action to enforce non payment of Licensors Products or Services or an arbitrator's award or otherwise arising out of this agreement or any noncompliance therewith shall be brought in state or federal court in the state of Hawaii.
Neither Party may assign this Agreement without the prior written consent of the other Party. Such consent shall not be unreasonably withheld. Any attempted assignment without such consent shall be void. An assignment with consent does not release the assigning Party from any of its obligations under this Agreement unless the consent so states. Notwithstanding the above, Licensor may assign this Agreement without Customer's consent to the purchaser of all or substantially all the business or assets of Licensor.
Any notices relating to this Agreement shall be in writing and shall be sent by certified United States mail, postage prepaid, return receipt requested, or by facsimile transmission or overnight courier service, addressed to the other Party at the address set forth below, or at such different address as a Party may advise the other Party in writing:
If any provisions of this Agreement are determined to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the provision shall be severed from the Agreement, and the remaining provisions shall remain in full force and effect; provided, however, that with respect to any material provision so severed, the Parties shall negotiate in good faith to achieve the original intent of the severed position.