SOFTWARE LICENSE AGREEMENT
This SOFTWARE LICENSE AGREEMENT (the “Agreement”) shall set forth the terms and conditions pursuant to which Negotiation Warrior Institute, LLC (“Licensor”) shall make available to each Licensor customer (the “Licensee”) the Front Office 360 Software as more fully described on the Term Sheet between Licensor and Licensee.
LICENSEE AGREES TO, AND IS BOUND TO ALL TERMS OF THIS AGREEMENT UPON (i) AFFIRMATIVELY ASSENTING IN WRITING OR BY CLICKING TO AGREE, (ii) BY ANY USE OR ACCESS TO THE SOFTWARE, (iii) BY AGREEING TO A TERM SHEET WITH LICENSOR, OR (iv) BY CREATION OF A WEB BASED ACCOUNT FOR USE OF THE SOFTWARE.IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT PURCHASE, DOWNLOAD, OR USE THE SOFTWARE.
LICENSOR MAY MODIFY THE TERMS OF THIS AGREEMENT AT ANY TIME. IN THE EVENT OF AMATERIAL CHANGE TO THIS AGREEMENT, WE SHALL PROVIDE YOU NOTICE BY EMAIL OR WHEN YOU USE THESOFTWARE, AND YOU WILL BE DEEMED TO HAVE AGREED TO AND ACCEPTED SUCH UPDATED TERMS BY CONTINUING TO USE THE SOFTWARE. IN SUCH EVENT THE VERSION DATE ABOVE SHALL BE UPDATED. UNLESS SOMODIFIED BY LICENSOR, THE CURRENT VERSION OF THESE TERMS SHALL APPLY TO ALL TERM SHEETSOR STATEMENTS OF WORK EXECUTED BY LICENSEE ON OR AFTER THE ABOVE VERSION DATE. TO THEEXTENT THE SOFTWARE LICENSE “TERM” DESCRIBED BELOW IN SECTION 2 IS EXTENDED BYLICENSEE, LICENSEE AGREES THAT THE TERMS OF THE THEN CURRENT VERSION OFTHIS AGREEMENT SHALL APPLY TO THE NEW SOFTWARE LICENSE TERM.
TO THE EXTENT THAT LICENSEE HAS LICENSED THE FRONT OFFICE 360 SOFTWARE SUBJECT TO LICENSORTERMS OTHER THAN THOSE SET FORTH IN THIS AGREEMENT, LICENSEE AGREESTHAT THE TERMS OF THIS AGREEMENT SHALL APPLY TO SUCH LICENSEE’S USE OF THEFRONT OFFICE 360 SOFTWARE IN THE EVENT THAT LICENSEE AGREES TO EXTEND THE THEN CURRENTLICENSE TERM FOR SUCH SOFTWARE.
1. SOFTWARE
The Front Office 360 software to be provided by Licensor and RockDaisy, LLC (“Developer”) to the Licensee shall be described in the Term Sheet (the “Software”). The Term Sheet shall describe the Software to be licensed by the Licensee, the terms pursuant to which the Software shall be provided, the cost, charge or fee for such Software and all other relevant terms and conditions. To activate use of the Software the Licensee must execute the Term Sheet and pay the fee associated with the Software.
2. TERM; TERMINATION; SURVIVAL OF PROVISIONS
2.1 The Software shall be provided by Licensor to Licensee during the term set forth in the Term Sheet. The Software license term, including any renewal of the term, shall be referred to as the “Term”, After the initial Term set forth in the applicable Term Sheet, or any renewal thereof, the Agreement shall renew for successive one (1) year terms, or as otherwise set forth in the Term Sheet, unless either party provides notice of termination to the other party at least sixty (60) days prior to the end of any initial or subsequent renewal Term.
2.2 This Agreement may be terminated for cause by either party immediately and without further notice if the other party defaults in the performance of any of its material obligations under this Agreement and, if such default is of a nature that is curable, does not cure the default within thirty (30) days after receipt of notice in writing from the non-defaulting party. Upon termination for cause by Licensee, Licensor shall promptly refund the pre-paid Software Fee (as defined below) to Licensee on a pro-rata basis. The following sections of this Agreement shall continue in full force and effect upon termination of this Agreement or expiration of the Term: 5, 6, 7.4, 8 and 9.
3. LICENSES
3.1 Subject to the provisions of this Agreement and of the Term Sheet, Licensor grants to the Licensee a non-exclusive, non-transferable, revocable, limited license to access and use the Software during the Term. Any such access or use of the Software shall be solely in a manner consistent with the terms of this Agreement. Except for the license granted in this Section 3.1, the Licensee acknowledges that it acquires no other rights to the Software and that ail right, title and interest in and to the Software shall remain with Licensor and the Developer. The Licensee shall not decompile copy, disassemble, modify, decrypt, translate, extract or otherwise reverse engineer the Software. The license described hereby shall only be granted if Licensee has entered into a Term Sheet and paid the required Software Fees.
3.2 Licensee shall not (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Software; (b) modify or make derivative works based upon the Software; (c} create Internet “links” to the Software or “frame” or “mirror” the Software on any other server or wireless or Internet-based device; (d) interfere with or disrupt the integrity or performance of the Software or the data contained therein; (e) attempt to gain unauthorized access to the Software or its related systems or networks, (f) use the Software in any manner that infringes upon the intellectual property of a third party, (g) use the Software in any manner that is unlawful pursuant to any law applicable to Licensee, or (g) use, copy, or misappropriate any intellectual property of Licensor or Developer other than as specifically authorized by the license.
3.3 Except for those licenses granted in Sections 3.1, Licensee agrees it shall be a material breach of this Agreement if its users of the Software share or provide access to or use of the Software to anyone else. Not with standing the termination provisions of section 2.2 above, Licensor may terminate this Agreement, without notice and without having to refund any portion of the Software Fee if Licensee’s users of the Software share or provide access to or use of the Software to anyone else. You agree to immediately notify Licensor if you know or suspect that the Software is being used or accessed without authorization or in contravention to the terms of this Agreement.
4. USE OF SOFTWARE AND SUPPORT
4.1 Licensor and/or Developer shall provide Licensee with a User ID and password for each user identified in Section 3.1 that will permit Licensee to access and use the Software. Licensee is solely responsible for the security and use of each user’s ID and password. Licensee agrees that each user identified in Section 3.1 who obtains a User ID and password to use the Software pursuant to this Agreement shall: (a) choose a strong and secure password; (b) keep their password secure and confidential; and (c) not share or transfer User ID and password with any other person or entity. If the security of the user ID and/or password is compromised, Licensee shall promptly contact Licensor at info@frontoffice360.com or at (847) 910-7389. Other than due to the sole negligence of Licensor or Developer, Licensee assumes all liability in the event that its login credentials are obtained or used without authorization.
4.2 Licensor shall provide email-based support concerning use of the Software Monday through Friday (excluding Federal holidays) from 9:00 AM to 5:00 PM (Central Standard Time). All inquiries concerning support and use of the Software shall be sent to info@frontoffice360.com by one named representative selected by Licensee.
4.3 Licensor may occasionally suspend access to, or function of, the Software for maintenance and update purposes. Licensor agrees that, to the extent foreseeable and reasonably feasible, Licensor shall notify Licensee of any planned maintenance periods, and shall conduct such maintenance during periods of time that the Software is less frequently used. Licensor reserves the right to suspend access to, or function of, the Software immediately and without notice in the event it is reasonably necessary to prevent or halt a data breach, intellectual property infringement, or harm to Developer, Licensor, or any licensee or third party.
5. PAYMENT AND BILLING
5.1 The Software shall be provided at the fee set forth in the Term Sheet Form (the “Software Fee”), Licensor shall invoice Licensee for the Software Fee on the date that Licensee executed a Term Sheet with Licensor. The Software Fee shall be paid by Licensee to Licensor by check, or through Licensee authorized ACH. Licensee hereby authorizes Licensor to use Licensee’s ACH authorization, as provided on the Term Sheet, Invoice or otherwise, to accept payment for the Software Fees. Licensee shall pay the Software Fee in accordance with the terms of the Term Sheet and Invoice. Licensor will not be responsible for any costs associated with Licensee paying the Software Fee. In addition to any other rights granted to Licensor herein, Licensor reserves the right to suspend or terminate this Agreement and the Licensee access to the Software if the Licensee fails to pay any amount due on the payment due date or if Licensor is unable to use ACH authorization to accept payment of the Software Fee.
6. LIMITATION OF LIABILITY
EXCEPT FOR BREACH OF THOSE RESTRICTIONS SET FORTH IN SECTION 3 ABOVE (LICENSE) , INNOEVENT SHALL (A) EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT,INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGESRELATING TO THE LOSS OF PROFITS, INCOME, GOODWILL OR DATA, OR THE INABILITY TO UTILIZE
THE SOFTWARE; OR (B) LICENSOR’S AGGREGATE LIABILITY TO LICENSEE EXCEED THESOFTWARE FEES ACTUALLY PAID BY LICENSEE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELYPRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
7. REPRESENTATIONS AND WARRANTIES
7.1 Licensor represents and warrants that: (a) it has the power and authority to enter into this Agreement and to perform all of its obligations; (b) the performance of such obligations will not conflict with or result in a breach of any agreement to which Licensor is a party or is otherwise bound; (c) its performance under this Agreement shall comply with all applicable laws, rules and regulations; (d) it is the owner or authorized licensee of the Software; (e) has undertaken commercially reasonable efforts and steps to verify the accuracy of the data contained within the
Software, including keeping such data current; and (f) regarding Licensee’s access to the Software during the Term, Licensor shall use commercially reasonable efforts to make the Software available 24 hours a day, 7 days a week except for: (i) planned downtime (of which Licensor shall give notice to the Licensee name representative), (ii) any unavailability caused by circumstances beyond Licensor’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or Internet service provider failures or delays, or unpredicted functionality glitches, or (iii) downtime or suspensions of service specifically authorized by this Agreement.
7.2 Licensor warrants to the Licensee that the Software shall be performed in substantial accordance with the functional descriptions of the Software set forth on the Term Sheet. If the Software fails to so conform to that description of the Software, then Licensor shall, as the Licensee’s sole remedy, make a commercially reasonable effort to correct the Software; provided however Licensee shall be entitled to the refund set forth in Section 2.2 upon termination for Cause by Licensee if Licensor is unable to cure such failure. All warranty claims related to the Software must be made within the then current Term for such Software.
7.3 The Licensee represents and warrants that: (a) it has the power and authority to enter into this Agreement and to perform all of its obligations; (b) the performance of such obligations will not conflict with or result in a breach of any agreement to which the Licensee is a party or is otherwise bound; and (c) its performance under this Agreement, and its use of the Software, shall comply with all applicable laws, rules, regulations and policies, including, but not limited to, those established by the university or college which Licensee is associated, the
athletic conference which the Licensee is a participant or member and the National Collegiate Athletic Association.
7.4 OTHER THAN AS SET FORTH IN THIS SECTION 7, LICENSOR SPECIFICALLY DISCLAIMS ALL OTHERWARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OFMERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, LICENSOR DOES NOT REPRESENT OR, WARRANT THAT (A) THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE; (B) THESOFTWARE WILL MEET ALL OF THE LICENSEE’S REQUIREMENTS; OR (C) ALL ERRORS OR DEFECTSWILL BE CORRECTED. OTHER THAN AS EXPLICITLY PROVIDED, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED ON AN “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE” BASIS.
8. INDEMNIFICATION
To the extent enforceable by applicable law, Licensee agrees to indemnify, defend, and hold harmless Licensor, Developer, and their respective parents, affiliates, and subsidiary companies, officers, directors, employees, consultants, and agents from and against any and all claims, liabilities, damages, expenses, and/or costs (including, but not limited to reasonable attorney’s fees) arising from or related to Licensee’s breach of this Agreement, and any use or misuse of the Software by Licensee or any person so authorized by Licensee.
9. OTHER PROVISIONS
9.1 In the event that Licensor is unable to provide the Software because of any cause reasonably beyond its control, including, without limitation, acts of God (each a “Force Majeure event”), Licensor shall promptly give notice to the Licensee and shall take all measures to resume performance. If the period of non- performance exceeds thirty (30)days from the receipt of notice, the Licensee may give written notice to Licensor terminating this Agreement effective upon receipt.
9.2 Licensee may not assign this Agreement to any person or entity without the prior written permission of Licensor, which shall not be unreasonably withheld. Licensor and Developer may assign this Agreement and/or their rights therein to a third party after reasonable notice to Licensee.
9.3 In addition to the terms and conditions herein, the Privacy Policy, available at https://www.rockdaisy.com/Content/policies/Privacy-Policy, is incorporated by reference hereto, and is hereby binding in all respects on Licensee. In the event of any conflict between this Agreement and the Privacy Policy, the conflicting terms of this Agreement shall prevail, unless applicable law requires otherwise. The terms of the Privacy Policy may be updated from time to time by Licensor or Developer, and Licensee’s continued use of the Software shall be deemed acceptance of all updated terms.
9.4 This Agreement, the Privacy Policy, Term Sheet, and the Software description found on the Term Sheet all of which are here by incorporated by reference, constitutes the entire understanding of the parties and supersedes all prior discussions and agreements with respect to its subject matter. This Agreement may not be amended by Licensee without the prior written consent of Licensor.
9.5 If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The failure of Licensor to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Licensor in writing.
9.6 Either party may give notice by personal service, by nationally recognized overnight courier service (e.g. FedEx or DHL) or by written communication sent by certified mail, return receipt requested, to the address noted on the Term Sheet. Such notice shall be deemed to have been given upon delivery in the case of personal service or overnight courier and the expiration of forty-eight (48) hours after the above mailing or posting.
9.7 The laws of New York, without regard to conflict of laws principles, shall govern all matters relating to or arising from this Agreement, and the use (or inability to use) of the Software, provided, however, that any matters or disputes arising from this Agreement to which Developer is not a party shall be governed by the laws of Illinois. The parties agree that all claims brought under this Agreement may be brought solely before a court of competent jurisdiction in Cook County, Illinois, or if Developer is a party to such action then in New York County in New York State. The parties waive all claims or defenses of personal jurisdiction with respect to any other court or location.
9.8 Licensee agrees that Developer is an intended third party beneficiary to this Agreement, that any representations, warranties, and obligations made to Licensor are made in duplicate to Developer, that Developer may enforce against Licensee any breach hereof by Licensee, and that any limitations of liability and disclaimers applicable to or for the benefit of Licensor shall apply simultaneously to Developer.