These Move Software, LLC AffiliateReporting.com
Program Terms ("Terms") are entered into by and between the customer signing or
electronically accepting these Terms, or any document that references these Terms
("Customer" or “Licensee”) and Move Software, LLC ("Move Software" or “Licensor”).
These Terms govern Customer's participation in Move Software's AffiliateReporting.com
Program(s) ("Program"). These Program Terms and the Master Software License
Agreement are collectively referred to as the "Agreement." Move Software and Customer
hereby agree and acknowledge:
1.
Policies. Program use is subject to Move Software’s Master Software
License Agreement, all applicable Move Software and Partner policies, including
without limitation Search Engine Editorial and Trademark Guidelines, Affiliate Network
Usage Guidelines, Move Software Privacy Policy (http://www.movesoftware.net/privacy.aspx)
and Move Software and Partner ad specification requirements (collectively, "Policies").
Move Software (and its Partners) may amend their respective Policies at any time.
Customer's use of the Program after notice constitutes acceptance of all
such Policies, as they may be amended from time to time.
2.
Pricing. For each 30 day period of the term of Customer’s license of
the Software, Customer shall pay to Move Software a licensing fee at the beginning
of each licensing period and in any event shall be paid by the 10th day
following the beginning of such period. Said minimum will not be prorated or refundable
for any partial month immediately preceding the effective date of cancellation.
Amount of licensing fee shall be determined by the level of service selected by
Customer and equal to following for each level of service:
3.1. for Pro(fessional), a
30 day license fee of $95.00.
3.2. Or, for Premier, a 30
day license fee of $245.00.
3.3. Or, for Performer, a
30 day license fee $495.00.
3.4. Or, for Enterprise, a
30 day license fee of $500 with additional amounts to be defined in an Enterprise
Fee and Term Schedule to be added to this Agreement.
3.
Billing and Payment Method. Unless otherwise provided under this Agreement,
Customer is required to supply a credit card or charge card authorization in order
to apply all charges on the date due. When you supply us with a method of
payment such as a credit card, charge card, or other agreed means of payment (“Payment
Method”) in connection with a Program, you participate in the “Payment Method Program”
and you authorize us to bill your Payment Method pursuant to these Payment Method
Program Terms for any and all charges and fees you incur in connection with that
Program, including recurring payments. The types of Payment Methods that we accept
and the timing of the billing of the charges and fees may vary according to the
Program and country; however, we do not knowingly accept debit cards and you should
not provide a debit card as a form of payment. The terms of your Payment Method
are determined by an agreement(s) between you and your financial institution.
4.
Payment Authorization. You agree to keep your Payment Method information
on file with us current (such as your address, card or account number, and expiration
date, if any), and you also authorize us to update your Payment Method information
with data we obtain from your financial institution, the issuer of your credit card
or charge card, or from MasterCard or Visa. You authorize us to retain your Payment
Method information until such time as you revoke this authorization in accordance
with procedures prescribed by us. Any revocation by you of this authorization will
become effective: (a) if your Payment Method is a credit or charge card, when all
charges and fees associated with your use of the Programs have been fully satisfied,
as determined by us; or (b) if your Payment Method is a bank account, after three
(3) business days. Your revocation of this authorization will have no effect on
your liability for charges and fees that you have incurred in connection with your
use of a Program prior to such revocation.
5.
Premium Support. A limited amount of support is included with each
service level, as defined in 5.1, 5.2, 5.3, and 5.4 below. Any amount of included
support not used during the first 30 day license period expires at the end of that
period and is forfeited. Additional support is available from Licensor the rate
of $37.50 per quarter hour.
5.1 For Pro(fessional), includes
up to 1 hour of support.
5.2. Or, for Premier, includes
up to 2.5 hours of support.
5.3. Or, for Performer, includes
up to 5 hours of support.
5.4. Or, for Enterprise, includes
a minimum of 5 hours of support, with additional support defined in an Enterprise
Fee and Term Schedule to be added to this Agreement.
6.
Browser. The software is supported on Internet Explorer, versions
7.0 and higher.
7.
Data Storage. A limited amount of data storage is included with each
level of service, as defined in 7.1, 7.2, 7.3, and 7.4 below. When Customer reaches
the provided data limit, they will be prompted by the System or by Move Software
to increase their storage by upgrading to a higher level of service. If Customer
declines to upgrade, then the System or Move Software will delete Customers oldest
stored data to make room for new data.
7.1. For Pro(fessional), includes
approximately 20MB of storage.
7.2. Or, for Premier, includes
approximately 50MB of storage.
7.3. Or, for Performer, includes
approximately 100MB of storage.
7.4. Or, for Enterprise, includes
at least 100MB of storage, with additional storage limits defined in an Enterprise
Fee and Term Schedule to be added to this Agreement.
8.
API Charges. AffiliateReporting.com relies on the use of multiple application
programming interfaces, or APIs. Google charges for each call made to their AdWords
API and a limited amount of Google AdWords API calls are included with each level
of service as defined in 8.1, 8.2, 8.3, and 8.4 below. There are no charges for
API usage from other third parties such as search engines like Yahoo!, or MSN; affiliate
networks such as Commission Junction, Linkshare, or Google Affiliate Network/ Performics.
If Customer reaches or exceeds the included Google AdWords API calls, Move Software
or System will require Customer to purchase additional API credits at a the cost
charged by Google to Move Software of $0.25 per 1000 calls. Any amount of included
Google AdWords API calls not used during the 30 day license period expire at the
end of that period and are forfeited.
8.1. For Pro(fessional), includes
up to 20,000 Google AdWords API calls per period.
8.2. For Premier, includes
up to 50,000 Google AdWords API calls per period.
8.1. For Performer, includes
up to 1000,000 Google AdWords API calls per period.
8.1. For Enterprise, includes
a minimum of 1000,000 Google AdWords API calls per period, with additional API calls
defined in an Enterprise Fee and Term Schedule to be added to this Agreement.
9.
Access to Client Data. Customer grants Move Software permission
to utilize an automated software program to retrieve and analyze websites associated
with the Services for ad quality and serving purposes, unless Customer specifically
opts out of the evaluation in a manner specified by Move Software.
10.
Cancellation. Customer may cancel online through Customer's account if online
cancellation functionality is available, or, if not available, with prior written
notice to Move Software, including without limitation electronic mail. AffiliateReporting.com
online access cancelled online will cease on the effective date of the cancellation.
In any event, cancellation shall be effective no later than 30 days from the effective
date of Licensee’s cancellation notice. Either party may cancel the account,
effective at the end of any month of this licensing period, but such cancellation
must be made at least seven (7) days prior to the inception of the next month of
the agreement; otherwise, cancellation is effective at the end of the following
month.
11.
Disclaimer and Limitation of Liability. Except as may be expressly provided by Licensor,
MOVE SOFTWARE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION
FOR NONINFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE.
To the fullest extent permitted by law, Move Software disclaims all guarantees regarding
‘data quality’ and ‘data accuracy’ related to retrieving advertising expense data
and commission revenue data from third parties and correlating related information.
Errors or inaccuracies in data delivered by third parties may be reflected in the
data assembled by the AffiliatedReporting.com software. Customer understands that
third parties may generate impressions or clicks on Customer's ads for prohibited
or improper purposes, and Customer accepts the risk of any such impressions and
clicks. Similarly, customer’s actions or inactions in third party systems or move
software systems can skew data. Any refunds are within Move Software's sole
discretion.
12.
Agency. Customer represents and warrants that (a) it is authorized to act on behalf
of and has bound to this Agreement any third party for which Customer advertises
(a "Principal"), (b) as between Principal and Customer, the Principal owns any rights
to Program information in connection with those ads, and (c) Customer shall not
disclose Principal's Program information to any other party without Principal's
consent.
13.
Payment. Customer shall be responsible for all charges incurred on third party partner
sites including Search Engines, Affiliate Networks, or others, and shall pay all
charges in U.S. Dollars or in such other currency as agreed to in writing by the
parties. Unless agreed to by the parties in writing, Customer shall pay all
charges in accordance with the payment terms in the applicable Program FAQ.
Late payments bear interest at the rate of 1.5% per month (or the highest rate permitted
by law, if less). Charges are exclusive of taxes. Customer is responsible for paying
(y) all taxes, government charges, and (z) reasonable expenses and attorneys fees
Move Software incurs collecting late amounts. To the fullest extent permitted by
law, Customer waives all claims relating to charges (including without limitation
any claims for charges based on suspected invalid clicks) unless claimed within
60 days after the charge (this does not affect Customer's credit card issuer rights).
Charges are solely based on Move Software's measurements for the applicable Program,
unless otherwise agreed to in writing. To the fullest extent permitted by law, refunds
(if any) are at the discretion of Move Software and only in the form of advertising
credit for only Move Software Properties.
14.
Credit Issues. Nothing in these Terms may obligate Move Software to extend
credit to any party. Customer acknowledges and agrees that any credit card
and related billing and payment information that Customer provides to Move Software
may be shared by Move Software with companies who work on Move Software's behalf,
such as payment processors and/or credit agencies, solely for the purposes of checking
credit, effecting payment to Move Software and servicing Customer's account. Move
Software may also provide information in response to valid legal process, such as
subpoenas, search warrants and court orders, or to establish or exercise its legal
rights or defend against legal claims. Move Software shall not be liable for any
use or disclosure of such information by such third parties.
15.
Beta Software. Some Program features are identified as "Beta," "Ad Experiment,"
or otherwise unsupported ("Beta Features"). To the fullest extent permitted by law,
Beta Features are provided "as is" and at Customer's option and risk. Customer shall
not disclose to any third party any information from Beta Features, existence of
non-public Beta Features or access to Beta Features.
16.
User Limit. A limited number
of licensed users are allowed with each service level, as defined in 16.1, 16.2,
16.3, and 16.4 below. User licenses may not be sold, leased, or licensed by Licensee.
16.1 For Pro(fessional), includes
1 user license.
16.2. Or, for Premier, includes
up to 2 user licenses.
16.3. Or, for Performer, includes
up to 3 user licenses.
16.4. Or, for Enterprise,
includes a minimum of 3 user licenses, with additional user licenses defined in
an Enterprise Fee and Term Schedule to be added to this Agreement.
17.
Trial Period. Notwithstanding the foregoing, if licensee is a new customer
of licensor, a trial period of fourteen (14) days shall be applicable. While
credit card or other payment information will be required before trial use of the
software is authorized, no licensing charges will apply during such trial period.
API Charges from third parties will still apply and will be billed directly to Licensee.
If billed to Licensor, Licensor may re-bill to Licensee at cost with an administrative
fee. In its sole discretion, Move Software may include a limited amount of API queries
to third parties at no cost to licensee during the trial period, without waiving
any of its rights to reimbursement for other charges. Absent timely cancellation,
the licensing period and all ordinary charges under these Program Terms shall be
effective for each month following the trial period.
18.
If the Agreement is an electronic contract, then this Section applies in order to
set out the legally binding terms of your use of our Programs. LICENSEE accepts
the Agreement and the terms, conditions, and notices contained or referenced herein
by clicking on the “I Accept” button in connection with your enrollment. This action
creates an electronic signature that has the same legal force and effect as a handwritten
signature. When you click on the “I Accept” button during enrollment, you also consent
to having the Agreement provided to you in electronic form.
19.
____________________________________
20.
MASTER SOFTWARE
LICENSE AGREEMENT
Use of the AffiliateReporting.com software constitutes acceptance of
the terms of this Master Software License Agreement ("Agreement") by the User/Licensee,
in consideration of the covenants, representations, and warranties set forth herein
and other good and valuable consideration, made between Move Software, LLC., 4430
North 22nd Street - Suite 8, Phoenix, AZ 85016, and said Licensee.
ARTICLE 1.
CREATION OF LICENSE RELATIONSHIP
101. BACKGROUND
LICENSOR owns the collection of computer programs known as AffiliateReporting.com
("Licensed Programs") and the User Documentation for the Licensed Programs.
LICENSEE desires to acquire a license to use certain as set forth below.
102. LICENSE GRANT
102.1 "Licensed
Programs," as used in this Agreement, means the collection of computer programs
known as AffiliateReporting.com.
102.2 License
Rights Granted. Subject to the terms and conditions of this Agreement, LICENSOR
hereby grants to LICENSEE and LICENSEE hereby accepts a license under any and all
Intellectual Property Rights owned or otherwise assertable by LICENSOR to engage
in the following Licensable Activities (the "License"): access via secured user
login for use of the Executable Code and Licensed Documentation contained on AffiliateReporting.com.
102.3 Scope
of License Grant. The License is nonexclusive and extends to the United States
and its territories only.
102.4 No
Other Rights Granted. Apart from the License Rights enumerated in this Agreement,
the License does not include a grant to LICENSEE of any right to engage in any Licensable
Activity, nor any ownership right, title, or interest, nor any security interest
or other interest, in any Intellectual Property Rights relating to the Licensed
Software nor in any Copy of any part of the Licensed Software.
102.5 Prohibited
Practices. Customer shall not, and shall not authorize any party to: (a) generate
automated, fraudulent or otherwise invalid impressions, inquiries, conversions,
clicks or other actions; (b) use any automated means or form of scraping or data
extraction to access, query or otherwise collect Move Software related information
from any Program website or property except as expressly permitted by Move Software;
or (c) advertise anything illegal or engage in any illegal or fraudulent business
practice. Customer represents and warrants that it holds and hereby grants
Move Software and Partners all rights (including without limitation any copyright,
trademark, patent, publicity or other rights) in Creative, Services and Targets
needed for Move Software and Partner to operate Programs (including without
limitation any rights needed to host, cache, route, transmit, store, copy, modify,
distribute, perform, display, reformat, excerpt, analyze, and create algorithms
from and derivative works of Creative or Targets) in connection with this Agreement
("Use"). Customer represents and warrants that (y) all Customer information
is complete, correct and current; and (z) any Use hereunder and Customer's Creative,
Targets, and Customer's Services will not violate or encourage violation of any
applicable laws, regulations, code of conduct, or third party rights (including
without limitation intellectual property rights). Violation of the foregoing
may result in immediate termination of this Agreement or customer's account without
in addition to all other remedies available to Licensor.
103. TERM OF LICENSE
Unless sooner
terminated in accordance with Section 902, the License will be in effect for a "License
Term" period from the Effective Date (also the "License Commencement Date") and
continuing on a month-to-month basis. The Effective Date shall be the earlier
of (a) the first date on which the Licensee uses the Licensed Programs, (b) the
date upon which Licensee indicates approval of the Agreement terms by electronic
assent, or (c) the date upon which Licensee indicates approval of Licensor's Program
Terms.
104. EXTENSIONS OF LICENSE TERM
104.1 The
License Term will be automatically extended (absent notice of non-extension as provided
below) for unlimited one-month intervals, each interval sometimes referred to herein
as a "License Term Extension."
104.2 Either
Party may decline to extend the License Term for any reason or no reason by providing
the other Party with no less than seven (7) days prior written notice of non-extension.
105. LICENSE FEE
105.1 LICENSEE
will pay LICENSOR all "License Fees" required under the AffiliateReporting.com Program
Terms then in effect. LICENSOR reserves the right to change all such Program
Terms without prior notice, which may take effect immediately and may be posted
in AffiliateReporting.com interface. LICENSEE will also reimburse LICENSOR
for all API charges billed to LICENSOR which arise from or are in any way incidental
to LICENSEE'S use of the Licensed Software and LICENSOR'S provision of software
or services to LICENSEE. For example, LICENSOR has no obligation to incur
or pay API charges from third parties such as search engines (google, yahoo, or
MSN); affiliate networks (such as Commission Junction, Linkshare, or Google Affiliate
Network/ Performics); or tools (such as WordTracker). Should LICENSOR voluntarily
request billing of such charges on behalf of LICENSEE, LICENSOR may charge a collection
fee for obtaining payment from LICENSEE to offset the administrative costs of facilitating
such payments.
ARTICLE 2.
NATURE OF LICENSE
Licensor does not
provide or install software or hardware on licensee equipment. Executable
code is retained on move software servers: copying of such code is strictly prohibited.
ARTICLE 3.
OPERATING PROVISIONS FOR LICENSED ACTIVITIES
301. INTERNAL USE
301.1 Use
by Authorized Users Only. All Use of any Licensed Program will be solely by
LICENSEE Personnel (sometimes referred to as "Authorized Users").
301.2 Simultaneous
User Limit. No more than ten (10) Authorized Users may use any Licensed Copy
at any given time.
301.3 Cessation
of Use Upon Termination or Expiration. Upon termination or expiration for
any reason of any Use Right, all such Use by LICENSEE shall cease immediately upon
the effective date of such termination or expiration.
ARTICLE 4.
ADDITIONAL LICENSOR SUPPORT
Licensor offers
premium support services according to rates published in its program terms.
No support is provided beyond that explicitly required under the terms of this Agreement.
ARTICLE 5.
ERROR CORRECTION PROCEDURES
At any time during
the License Period, LICENSEE may provide LICENSOR with a report ("Bug Report") of
any actual or potential defect ("Bug") in the Licensed Software, by notice or by
other reasonable means. Each Bug Report will include and LICENSEE will continue
to provide all information reasonably requested by LICENSOR from time to time to
assist LICENSOR in identifying and correcting the Bug.
ARTICLE 6.
PERFORMANCE WARRANTIES AND REMEDIES
601. WARRANTY PERIOD. The "Warranty Period" is co-extensive with
the term of this License Agreement.
602. AS-DOCUMENTED WARRANTY
602.1 Definition
of As-Documented Warranty. LICENSOR warrants to LICENSEE, SUBJECT TO THE REMEDY
LIMITATIONS SET FORTH BELOW IN THIS SECTION 602 AND THE WARRANTY EXCLUSIONS SET
FORTH IN SECTION 605, that during the Warranty Period the Licensed Program(s) will
operate in all Material respects in accordance with the Licensed. Such warranty
is referred to herein as the "As-Documented Warranty."
602.2 Deadline
for Reports of Breaches of As-Documented Warranty. No instance of noncompliance
with the performance standards referred to in the definition of the As-Documented
Warranty, whether or not regarded as Material by LICENSEE, will be deemed to be
a Breach of that warranty unless reported to LICENSOR by LICENSEE in accordance
with Article 5, relating to Bug Reports, prior to the expiration of the Warranty
Period.
602.3 Attempts
to Correct Alleged Breach. Upon receipt of notice of such alleged Breach of
the As-Documented Warranty, LICENSOR will attempt to correct the Breach, and LICENSEE
may attempt to correct the Breach itself.
602.4 Exclusive
Remedies for Breach of As-Documented Warranty. LICENSEE'S SOLE REMEDIES for
any Breach of the As-Documented Warranty, TO THE EXCLUSION OF ALL OTHER REMEDIES
THEREFOR, IN CONTRACT, TORT, OR OTHERWISE, will be the procedures set out in this
Section 602.
603. WARRANTY LIMITATIONS-LICENSOR's WARRANTIES ARE LIMITED,
AND APPLY ONLY, AS FOLLOWS:
603.1 LICENSOR's warranties do not extend to operation of the
Licensed Program(s) on any hardware configuration, nor in any operating environment
(e.g., operating system), other than as defined by the As-Documented Warranty.
603.2 LICENSOR's warranties do not extend to operation of the
Licensed Software in conjunction with any computer program other than as defined
by the As-Documented Warranty.
603.3 Except as may be expressly agreed in writing by LICENSOR,
LICENSOR's warranties do not apply to:
(a) any copy of the Licensed Software that is modified by any
Person other than
LICENSOR; nor
(b) Use of the Licensed Software other than in accordance with
the most current operating instructions Provided by LICENSOR; nor
(c) Bugs caused by defects, problems, or failures of hardware
or software not Provided by LICENSOR; nor
(d) Bugs caused by negligence of LICENSEE or any other Person
except LICENSOR.
603.4 Without limiting the generality of the exclusions set forth
in this Section 603, LICENSOR's Warranties do not include any warranty:
(a) that the functions performed by the Licensed Program(s) will
meet LICENSEE's requirements or will operate in the combinations that may be selected
for use by LICENSEE, nor
(b) that the operation of the Licensed Program(s) will be error
free in all circumstances, nor
(c) that all defects in the Licensed Program(s) that are not
Material with respect to the functionality thereof as set forth in the Licensed
Documentation will be corrected, nor
(d) that the operation of the Licensed Program(s) will not be
interrupted for short periods of time by reason of defect therein or by reason of
fault on the part of LICENSOR.
603.5 Without limiting the generality of the exclusions set forth
in this Section 603, and except as otherwise provided in this Agreement, LICENSEE
will be exclusively responsible as between the Parties for, AND LICENSOR MAKES NO
WARRANTY OR REPRESENTATION WITH RESPECT TO:
(a) determining whether the Licensed Software will achieve the
results desired by LICENSEE;
(b) selecting, procuring, installing, operating, and maintaining
computer hardware to run the Licensed Software;
(c) training LICENSEE's Personnel in computer operations, other
than such LICENSOR provided training as is expressly set forth in this Agreement;
(d) ensuring the accuracy of any input data used with the Licensed
Software;
(e) establishing adequate data backup provisions for backing
up LICENSEE's data; and
(f) establishing adequate operational backup provisions (e.g.,
alternate manual operation plans) in the event of a defect or malfunction that impedes
the anticipated operation of the Licensed Software.
604. DISCLAIMER OF ALL OTHER WARRANTIES AND REPRESENTATIONS
The express warranties and express representations set forth in this
Agreement are in lieu of, and LICENSOR DISCLAIMS, ANY AND ALL OTHER WARRANTIES,
CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT
TO THE LICENSED SOFTWARE OR ANY PART THEREOF, INCLUDING ANY AND ALL IMPLIED WARRANTIES
OR CONDITIONS OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS OR SUITABILITY
FOR ANY PURPOSE (WHETHER OR NOT LICENSOR KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED,
OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY
LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF DEALING. IN
ADDITION, LICENSOR EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY PERSON
OTHER THAN LICENSEE WITH RESPECT TO THE LICENSED SOFTWARE OF ANY PART THEREOF. To
the fullest extent permitted by law, Move Software disclaims all guarantees regarding
positioning, levels, quality, or timing of: (i) costs per click; (ii) click through
rates; (iii) availability and delivery of any impressions, Creative, or Targets
on any Partner Property; (iv) clicks; (v) conversions or other results for any ads
or Targets; (vi) the accuracy of Partner data (e.g. costs data or commission revenue
data); and (vii) the adjacency or placement of ads within a Program. Customer understands
that third parties may generate impressions or clicks on Customer's ads for prohibited
or improper purposes, and Customer accepts the risk of any such impressions and
clicks.
ARTICLE 7.
INTELLECTUAL PROPERTY MATTERS
701. NONINFRINGEMENT KNOWLEDGE REPRESENTATION
701.1 Knowledge Representation re Non-infringement. LICENSOR
makes a Knowledge Representation to LICENSEE, BUT DOES NOT WARRANT, that the Exercise
of License Rights pursuant to this Agreement will not infringe any valid and subsisting
Intellectual Property Right owned by Persons other than the LICENSEE or an Affiliate
of LICENSEE.
701.2 No Representation re Combination Use. LICENSOR makes
no representation concerning any knowledge or lack thereof which it has or may have
with respect to the possibility of such infringement by Combination Use of the Licensed
Software. The Parties agree that LICENSOR has no duty to investigate nor to warn
LICENSEE of any such possibility of infringement by Combination Use. As used in
this Agreement, "Combination Use" of software means Use of the software in combination
or conjunction with any of the following, unless such Use is shown to be infringing
when not in combination or conjunction with any of the following, or unless such
use is expressly described in the user documentation or expressly identified as
non-infringing in this Agreement:
(a) any software other than the software in question; any apparatus;
and/or
(b) any non-Use activities by any Person.
701.3 Exclusive Remedy re Infringement. LICENSEE's SOLE
REMEDY with respect to allegations or proof of infringement of third-party Intellectual
Property Rights by the Licensed Software and/or its use by LICENSEE, regardless
of any alleged negligent misrepresentation by LICENSOR in making the Noninfringement
Knowledge Representation, TO THE EXCLUSION OF ALL OTHER REMEDIES THEREFOR, will
be for LICENSEE to invoke the infringement defense provisions of Section 702.
702. CONFIDENTIAL/PROPRIETARY INFORMATION
This Section sets out procedures by which information regarded as proprietary
by a Party (referred to in this Section as "Proprietor") may be disclosed to another
Party (referred to in this Section as "Receiving Party").
702.1 Licensed
Software as Confidential/Proprietary Information. The Parties acknowledge
that the Licensed Program(s) and Licensed Documentation will be deemed Confidential/Proprietary
Information (as defined below) whose use and disclosure is restricted by this Section
703. As used herein, the term "Confidential/Proprietary Information" means information
that:
(a) is disclosed in writing or other tangible form to the Receiving
Party by the Proprietor or a Person having an obligation of confidence to the Proprietor
(or, if disclosure is made orally, is reduced to or summarized in such a writing
or other tangible form within thirty days after such oral disclosure) and is designated
in such writing or tangible form as proprietary in a writing by or on behalf a Proprietor,
(b) is not generally known in the relevant industry or industry
segment, and
(c) affords possessors of the information a commercial or business
advantage over others who do not have the information.
ARTICLE 8.
RISK ALLOCATION - EXCLUSION OF INCIDENTAL AND CONSEQUENTIAL DAMAGES
Independent of, severable from, and to be enforced independently of
any other enforceable or unenforceable provision of this Agreement, OTHER THAN FOR
INFRINGEMENT OF ONE PARTY'S INTELLECTUAL PROPERTY RIGHTS BY ANOTHER PARTY (INCLUDING
ANY ENGAGEMENT IN LICENSABLE ACTIVITIES BY LICENSEE BEYOND THE SCOPE OF THE LICENSE
RIGHTS) OR FOR BREACH OF A NONCOMPETITION COVENANT, NEITHER PARTY WILL BE LIABLE
TO THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM THE OTHER PARTY'S
RIGHTS) FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF
ANY KIND including lost profits, loss of business, or other economic damage,
and further including injury to property. AS A RESULT OF BREACH OF ANY WARRANTY
OR OTHER TERM OF THIS AGREEMENT, REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY
LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY
THEREOF.
ARTICLE 9.
BREACH; TERMINATION
901. NOTICE OF BREACH; CURE PERIOD
In the event of a Breach of any warranty, covenant, or other provision
of this Agreement, the Party not in breach ("Nonbreaching Party") shall give the
Party in breach (the "Breaching Party") notice describing the Breach and stating
the time, as provided below, within which the Breach must be cured, but only if
any cure period is desired. However, no cure period is required unless otherwise
provided in this Agreement.
902. TERMINATION OF LICENSE RIGHTS
902.1 Termination
by Mutual Consent. The Parties may terminate the License or any License Right
by mutual consent upon such terms as they may agree in writing.
902.2 Unilateral
Termination. Either party may unilaterally terminate the License at any time,
but only by providing written notice of such termination at least one calendar month
prior to termination.
903. POST-TERMINATION PROCEDURES
Upon termination or expiration for any reason of the License or of
a License Right:
903.1 The Parties shall comply with their respective post-termination
obligations, if any, as set forth herein.
903.2 Except as may be expressly provided otherwise herein, within
ten business days after the effective date of termination or expiration of the License,
each Party shall pay the other Party any amounts that as of that effective date
were due and owed thereto pursuant to this Agreement.
ARTICLE 10.
GENERAL ADMINISTRATIVE PROVISIONS
1001. ASSIGNMENT
1001.1
Licensee shall not assign any right under this Agreement, and any purported assignment
will be null and void and a breach of this Agreement. However, Licensor may
assign the Licensed Programs and its benefits under this Agreement.
1002. ENTIRE AGREEMENT
1002.1
Except as may be expressly provided otherwise herein, this Agreement constitutes
the entire agreement between the Parties concerning the subject matter thereof.
No prior or contemporaneous representations, inducements, promises, or agreements,
oral or otherwise, between the Parties with reference thereto will be of any force
or effect. Notwithstanding the foregoing, LICENSOR'S Program Terms, as they may
be changed from time to time by LICENSOR, are incorporated herein.
1002.2
Each Party represents and warrants that, in entering into and performing its obligations
under this Agreement, it does not and will not rely on any promise, inducement,
or representation allegedly made by or on behalf of the other Party with respect
to the subject matter hereof, nor on any course of dealings or custom and usage
in the trade, except as such promise, inducement, or representation may be expressly
set forth herein.
1002.3
No modification or amendment to this Agreement will be valid or binding unless reduced
to writing and duly executed by the Party or Parties to be bound thereby.
1003. OTHER GENERAL PROVISIONS
1003.1
No Unauthorized Use of Trademarks. In order to preserve the value of each
Party's name and/or any trademarks, service marks, trade names, or trade dress adopted
and/or used by that Party from time to time, the other Party shall not make any
use of any of the same for any reason (e.g., in advertising, press releases, or
other publicity) except solely as may be expressly authorized by this Agreement
or otherwise authorized in writing by that Party.
1003.2
Authority and Other General Warranties. Each Party warrants to the other that,
except as may be expressly stated otherwise in Schedule 1005.2 hereto:
(a) the Warranting Party, if a corporation, partnership, limited
partnership, or other nonnatural Person, is duly organized and subsisting under
the laws of the jurisdiction of its incorporation or existence;
(b) the Warranting Party has full power and authority to enter
into this Agreement;
(c) the execution and/or performance of this Agreement does not
and will not violate or interfere with any other agreement of the Warranting Party,
which violation or interference would have a Material adverse effect on the Warranting
Party;
(d) the Warranting Party will not enter into any agreement the
execution and/or performance of which would violate or interfere with this Agreement
and have a Material adverse effect on the other Party;
(e) the Warranting Party is not a party to any agreement calling
for the payment to, or receipt from, any third party by the Warranting Party of
any commission, gratuity, "kickback," or other similar thing or amount in consideration
of the other Party's entry into this Agreement;
(f) the Warranting Party is not presently the subject of a voluntary
or involuntary petition in bankruptcy, does not presently contemplate filing any
such voluntary petition, and is not aware of any intention on the part of any other
Person to file such an involuntary petition against it;
(g) the Warranting Party is not presently the subject of, nor
the proponent of, any Claim that would have a Material adverse effect on the other
Party; and
(h) the Person(s) executing this Agreement on behalf of the Warranting
Party has actual authority to bind the Warranting Party to this Agreement.
1003.3
Survival of Representations and Warranties. The representations and warranties
made herein shall survive the execution of this Agreement and the termination of
the License (or any License Right to the extent that this Agreement expressly provides
for severable termination of License Rights) except as may be expressly indicated
otherwise.
1003.4
Independent Parties. The Parties are independent contractors. Except as may
be expressly and unambiguously provided in this Agreement, no partnership or joint
venture is intended to be created by this Agreement, nor any principal-agent or
employer-employee relationship.
(a) Except to the extent expressly provided in this Agreement,
neither Party has, and neither Party shall attempt to assert, the authority to make
commitments for or to bind the other Party to any obligation.
(b) Although this Agreement contains covenants with respect to
Confidential/Proprietary Information, the Parties disclaim any other intent to create
a confidential or fiduciary relationship between them.
1005.5
Injunctive Relief. Each Party acknowledges that any violation by that Party
of its covenants in this Agreement (if any) relating to Intellectual Property Rights
or noncompetition would result in damage to the other Party that is largely intangible
but nonetheless real, and that is incapable of complete remedy by an award of damages.
Accordingly, any such violation shall give the other Party the right to a court-ordered
injunction or other appropriate order to specifically enforce those covenants. The
Party against whom any such injunction is entered agrees to pay to the other Party
any reasonable expenses, including but not limited to attorney fees, incurred in
obtaining such specific enforcement (in addition to any other relief to which the
other Party may be entitled).
1005.6
Survival of Restrictive Covenants. The covenants herein concerning Intellectual
Property Rights (and noncompetition covenants if any) will be construed as independent
of any other provision hereof. The existence of any claim or cause of action
by a Party against the other Party, whether predicated on this Agreement or otherwise,
shall not constitute a defense to enforcement by the other Party of such covenants.
1005.7
Effect of Partial Invalidity. If any one or more of the provisions of this
Agreement should be ruled wholly or partly invalid or unenforceable by a court or
other government body of competent jurisdiction, then:
(a) the validity and enforceability of all provisions of this
Agreement not ruled to be invalid or unenforceable will be unaffected;
(b) the effect of the ruling will be limited to the jurisdiction
of the court or other government body making the ruling;
(c) the provision(s) held wholly or partly invalid or unenforceable
will be deemed amended, and the court or other government body is authorized to
reform the provision(s), to the minimum extent necessary to render them valid and
enforceable in conformity with the Parties' intent as manifested herein; and
(d) if the ruling, and/or the controlling principle of law or
equity leading to the ruling, is subsequently overruled, modified, or amended by
legislative, judicial, or administrative action, then the provision(s) in question
as originally set forth in this Agreement will be deemed valid and enforceable to
the maximum extent permitted by the new controlling principle of law or equity.
1005.8
Business Judgment. In any circumstance where this Agreement provides for either
Party to make a determination in its judgment, that judgment will be conclusive
and binding, regardless of any allegation of malice or bad faith on the part of
that Party, unless it be shown by clear and convincing evidence that a prudent person
in the management of his or her own affairs could not have made the judgment in
question in the same circumstances.
1005.9
Notices. Notices hereunder will be delivered and effective as follows:
(a) Every notice required or contemplated by this Agreement to
be given by either Party may be delivered in person or may be sent by courier, telecopy,
express mail, telex, telegraph, or postage prepaid certified or registered air mail
(or its equivalent under the laws of the country where mailed), addressed to the
Party for whom it is intended, at the address specified in this Agreement. Either
Party may change its address for notice by giving notice to the other Party of the
change.
(b) Any written notice will be effective no later than the date
actually received.
(c) Unless otherwise provided in this Agreement, notice by courier,
express mail, certified mail, or registered mail will be effective on the date it
is officially recorded as delivered by return receipt or equivalent and in the absence
of such record of delivery it will be rebuttably presumed to have been delivered
on the fifth business day after it was deposited, first-class postage prepaid, in
the mails.
(d) Notice by telex or telegraph will be deemed given at the
time it is recorded by the carrier in the ordinary course of business as having
been delivered, but in any event no later than one business day after dispatch.
(e) Notice not given in writing will be effective only if acknowledged
in writing by a duly authorized officer of the Party to whom it was given.
(f) As used in this Section 1005.9, a reference to a particular
date means the date itself, if a business day, otherwise the first business day
after the date.
1005.10
Remedies. Except as otherwise provided herein or in this Agreement, the remedies
set forth herein or in this Agreement are not exclusive, and either Party will be
entitled alternatively or cumulatively to damages for breach of this Agreement or
to any other remedy available under applicable law.
1005.11
Choice of Law. This Agreement will be interpreted and enforced in accordance
with the law of the State of Arizona applicable to agreements made and performed
entirely in that state by Persons domiciled therein.
1005.12
Jurisdiction and Venue. Suit to enforce this Agreement or any provision thereof
will be brought exclusively in the state or federal courts located in Maricopa County,
Arizona.
1005.13
Attorney's Fees. If litigation or other action is commenced between the Parties
concerning any dispute arising out of or relating to this Agreement, the prevailing
Party in any contested ancillary proceeding relating to the action (e.g., motions
to transfer, to compel discovery, etc.) and the prevailing Party in the action itself
will be entitled, in addition to any other award that may be made, to recover all
court costs or other official costs and all reasonable expenses associated with
the ancillary proceeding or action, including without limitation reasonable attorney's
fees and expenses.
1005.14
No Waiver. The failure of either Party at any time to require performance
by the other Party of any provision of this Agreement shall in no way affect the
right of such Party to require performance of that provision. Any waiver by either
Party of any breach of any provision of this Agreement shall not be construed as
a waiver of any continuing or succeeding breach of such provision, a waiver of the
provision itself or a waiver of any right under this Agreement.
1005.15
Binding on Successors. This Agreement will be binding upon and inure to the
benefit of the Parties and their successors and assigns permitted by this Agreement.
1005.16
Section Headings. The article headings contained in this Agreement are for
reference purposes only and shall not in any way control the meaning or interpretation
of this Agreement.
1006 ELECTRONIC
SIGNATURES EFFECTIVE.
1006.1
If the Agreement is an electronic contract, then this Section applies in order to
set out the legally binding terms of your use of our Programs. LICENSEE accepts
the Agreement and the terms, conditions, and notices contained or referenced herein
by clicking on the "I Accept" button in connection with your enrollment. This action
creates an electronic signature that has the same legal force and effect as a handwritten
signature. When you click on the "I Accept" button during enrollment, you also consent
to having the Agreement provided to you in electronic form.
