SUBSCRIPTION SOFTWARE LICENSE AGREEMENT
Cevado Technologies, LLC, a Washington limited liability corporation (“Cevado”), and the licensed user, on behalf of their organization (individually and collectively, the “Customer”) hereby enter into, as of today’s date (the “Effective Date”), this Subscription Software License Agreement which includes all of the attachments listed below (the “Agreement”).
Attachments to Agreement:
Attachment A: Cevado Standard Terms and Conditions
Attachment B: System Requirements
Customer’s licensing of the Software is subject to the terms and conditions set forth in Attachment A. Any additional services and/or products which may be purchased by Customer hereafter shall be governed by the terms and conditions of this Agreement unless other terms are agreed to in writing by the parties.
ATTACHMENT A: CEVADO STANDARD TERMS AND CONDITIONS
1.1 Confidential Information shall refer to (a) the internal business, financial and marketing information of either party, (b) the Software code and its technical documentation (including, without limitation, the architecture, conceptual logic, know-how and other intellectual property embodied in the Software and/or documentation, and made accessible to Customer hereunder), (c) Software user and training documentation, (d) the contractual terms set forth in this Agreement, and (d) any other material or information received from the other party and which is designated as “Confidential” or “Proprietary”, or which are known, or under the circumstances surrounding disclosure reasonably should be known, as the confidential or proprietary material of the disclosing party.
1.2 New Release shall refer to any new release specific to a Software application where (a) the primary purpose of which is to correct or provide a workaround for a defect or problem with such Software or such Software Documentation, or (b) such release enhances or improves Software performance and/or functionality, or provides incremental functionality(ies) to an application, and which, in either event, is customarily provided at no additional cost to Cevado customers who have contracted for that Software. The term “New Release” does not include new modules added to a Software suite where such modules offer discrete new functionalities in addition to or together with the licensed applications.
1.3 Services shall refer to any professional services relating to the Software and provided by or on behalf of Cevado hereunder, including, without limitation, implementation services and user training.
1.4 Software shall refer to any Cevado software application or suite of applications licensed and delivered to Customer hereunder, including any New Release or custom development software, which may be delivered to Customer either with the initial delivery of the Software or at any time thereafter. The term “Software” shall include any third-party software which may be included in the Cevado software, but shall not include any third party product which is not licensed by Customer from Cevado. Where applicable from context, the term “Software” shall also refer to the Software Documentation.
1.5 Software Documentation shall refer to the reference materials and any associated technical documentation intended for administrative and end users of the Software, which may be made available in electronic version to Customer, and which may be amended from time.
II. FEES; PAYMENT TERMS. Fees for Customer’s initial purchase of Software and Services are as set forth in your corresponding quote which you accepted in InfusionSoft. The subscription Software fees and fees for all Services (if any) shall be invoiced as incurred on a monthly basis. Subscription software license fees may be increased during your subscription, but not in the first year, and not by more than 3% annually thereafter. Fees are exclusive of sales, use and other applicable taxes and duties, all of which shall be the responsibility of Customer and shall be payable immediately when due. Invoices shall be due and payable ten (10) days following the invoice date; past-due amounts shall accrue interest and administrative fees at 1.5% per month. Fees paid are non-refundable except as may be expressly provided for herein. Customer shall be responsible for all reasonable costs of collection, including attorneys’ fees, which Cevado may be required to incur with respect to unpaid amounts due and payable by Customer hereunder.
III. SOFTWARE LICENSE TERMS.
3.1 Licensed Use of Software. During the term of this Agreement, Customer is granted a worldwide, non-exclusive, non-transferable license to use the Software solely for its internal business purposes for the licensed organization, but not for the purposes of third parties or on any timesharing, rental, or service bureau basis. Notwithstanding the foregoing, it is understood and agreed that Customer is a real estate brokerage firm and may use the Software during the term of this Agreement for the indirect benefit of its end-clients with regard to their active listings. The term of the subscription license shall be indefinite and subject to the termination provisions set forth below. Customer acknowledges that the Software may include “copy lock” protection. Customer shall not alter or remove from any copies or partial copies of the Software or user documentation any copyright, trademark or other proprietary notice, or license terms where and as found in the original Software as delivered to Customer. Customer may not disassemble, reverse engineer, decrypt, decompile, create derivative works from, or translate the Software, or any portion thereof, or recreate or attempt to recreate the Software, in whole or in part by reference to the Software, or perform any process intended to determine the source code for the Software except to the extent that the foregoing restriction is prohibited by applicable law; nor shall Customer sublicense, distribute, deliver, disclose or otherwise provide to a third party any Software or portion thereof. Any unauthorized attempt to assign, sublicense or grant other rights to the Software shall be immediately and automatically void. Customer may not modify the Software except as contemplated by the Software Documentation or expressly authorized in writing by Cevado. Customer agrees that the Software Documentation shall only be used with the Software application with which it is associated. Customer acknowledges and agrees that third party suppliers of software to Cevado are third party beneficiaries of the terms governing Software under this Agreement.
Cevado hereby warrants and covenants to Customer that for a period of ninety (90) days commencing as of the date of the Software’s delivery (online access) to Customer (“the “Warranty Period”), the Software shall be free from any material defect and shall be free from viruses, worms, Trojan horses, or similar malicious code. Customer’s sole and exclusive remedy for a breach of the foregoing warranty shall be Cevado’s addressing and resolving such non-conformance, using commercially reasonable efforts commensurate with the severity of the identified non-conformance, either by repairing or replacing the non-conforming Software or delivering a commercially reasonable workaround for the non-conformance. Such remedy shall only be available if Cevado is notified in writing within the Warranty Period of the alleged non-conformance, is able to replicate the defect after reasonable effort, and is afforded reasonable time to cure the breach. The terms of this warranty shall not apply to, and Cevado shall have no liability for any nonconformance caused by, any Software that has been (1) modified by Customer or a third party without Cevado’s written authorization, (2) used in combination with equipment or software other than that which is consistent with its user documentation without Cevado’s written authorization, or (3) other events beyond Cevado’s reasonable control.
CEVADO does not warrant that the Software will perform error free or without interruptions, nor does CEVADO warrant that the Software will meet all Customer requirements OR THAT ALL ERRORS OR FAILURES WILL BE CORRECTED. Customer expressly acknowledges its responsibility to regularly back up data maintained on any computer system using the Software and to adequately test each new release of the software in an environment that reasonably simulates Customer’s production environment prior to implementing the same. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION, CEVADO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THE PRODUCTS AND USER DOCUMENTATION INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR THOSE ARISING FROM THE COURSE OF DEALING BETWEEN THE PARTIES OR USAGE OF TRADE. This Section 3.2 sets forth Customer’s exclusive remedy and Cevado’s sole responsibility in the event of a breach of any of the foregoing warranties. This warranty is made solely to Customer, and Customer acknowledges and agrees that Cevado extends no warranties of any sort or nature to or by any third party, including without limitation any client of Customer, or with respect to any third party product or service not licensed and provided by Cevado hereunder.
3.3 Use License and Restrictions. Customer acknowledges that the Software is licensed to Customer’s organization on a per user basis. Use is not further restricted or subject to additional fees based upon volume of data, however, please consult the Software Documentation for optimal performance. Without limiting the foregoing, use of the Software is restricted to one (1) Software user for each license fee paid. Customer and its organization shall maintain clear and complete records of its use of the Software and upon Cevado’s written request, shall provide to written confirmation of its compliance with the Software usage and license terms set forth herein. Cevado shall be entitled to audit Customer’s use of the Software to ensure compliance with the terms of this license.
3.4 System Requirements. Customer acknowledges that there are certain system requirements that are necessary in order to use the Software, and that except as expressly set forth in this Agreement, Customer is financially and technically responsible for ensuring that these requirements are met. These system requirements are set forth on Attachment B.
3.5 Export Control. Customer shall not import or export the Software, directly or indirectly, to any country in violation of the laws and regulations of any applicable jurisdiction. This restriction expressly includes, but is not limited to, the export regulations of the United States of America (the “United States”). Specifically, you shall not download or otherwise export or re-export the Software into or to (i) a national or resident of Cuba, Iran, Iraq, Libya, Sudan, North Korea, or Syria or any other country where such use is prohibited under United States export regulations, or (ii) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the United States Commerce Department’s Table of Denial Orders. You agree to the foregoing and represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
IV. CONFIDENTIAL INFORMATION. Each party acknowledges and accepts the responsibility to maintain all Confidential Information of the other party in confidence and to prevent its unauthorized use or disclosure, using measures the receiving party uses to protect its own similar confidential information, but in any event, no less than a reasonable degree of care. Without limiting the foregoing, each party agrees that it shall not publish, disclose or otherwise provide to any person (except employees or contractors with a legitimate need to know and who have entered into a written agreement with the receiving party containing confidentiality provisions as restrictive as those set forth in this Section IV), or use for any purpose other than those purposes contemplated by this Agreement, any Confidential Information it receives hereunder; provided, however that neither party shall have an obligation to protect Confidential Information received from the other when such information: (1) was in the receiving party’s possession at the time it was received from the disclosing party; (2) is or becomes a matter of public knowledge through no wrongdoing of the receiving party; (3) is rightfully provided to the receiving party by a third party without restrictions of confidentiality; (4) is independently developed by the receiving party without breach of this Agreement; or (5) is required to be disclosed by the first party by operation of law, in which event the receiving party shall provide the disclosing party with prompt written notice of such requirement and shall cooperate with the disclosing party in taking such steps as may be reasonably indicated to maintain the confidentiality of the information subject to disclosure. Each party acknowledges that violations of the terms hereof may cause the other immediate and irreparable damage for which monetary damages may be inadequate for which the other party is entitled to seek injunctive relief.
V. INDEMNIFICATION. In the event of a breach of Customer’s obligations herein (including but not limited to a breach of the license terms in Section 3.1, provided that such breach remains uncured for thirty (30) days following written notice of the same), Customer shall defend or settle, and hold Cevado harmless from and against, any Claim and expenses incurred as a result of such breach.
VI. LIMITATION ON DAMAGES. IN NO EVENT SHALL CEVADO BE LIABLE TO CUSTOMER OR CUSTOMER’S ORGANIZATION FOR (1) INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, OR (2) ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA, REVENUES, BUSINESS OR PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR THE PERFORMANCE OR NON-PERFORMANCE OF EITHER PARTY HEREUNDER, OR THE PRODUCTS OR SERVICES PROVIDED BY OR THROUGH CEVADO HEREUNDER, EVEN IF THE WARRANTY REMEDY FAILS IN ITS ESSENTIAL PURPOSE AND EVEN IF SUCH PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER AGREES THAT CEVADO’S LIABILITY IN CONNECTION WITH THIS AGREEMENT OR RELATING TO ANY SERVICE OR PRODUCT PROVIDED HEREUNDER SHALL BE LIMITED SOLELY TO DIRECT DAMAGES AND IN NO EVENT SHALL EXCEED THE TOTAL AMOUNT IN FEES PAID BY CUSTOMER TO CEVADO ASSOCIATED WITH THE PRODUCT AND/OR SERVICE GIVING RISE TO THE CLAIM AND PAID BY CUSTOMER DURING THE YEAR PRECEDING THE EVENT OR ACTION GIVING RISE TO THE CLAIM. CEVADO EXPRESSLY DISCLAIMS, AND CUSTOMER AGREES, THAT CEVADO SHALL HAVE NO LIABILITY OF ANY KIND FOR ANY THIRD PARTY PRODUCT OR SERVICE WHICH IS NOT CONTAINED IN THE SOFTWARE AS PROVIDED BY CEVADO HEREUNDER. Any claim made under or in connection with this Agreement and the Services and/or Software provided hereunder shall be made within one (1) year from the date on which the claiming party first had notice of the facts giving rise to the claim.
VII. TERM; TERMINATION. This Agreement shall commence on the Effective Date and shall continue until such time as Customer provides Cevado with sixty (60) days advance written notice of its intention to terminate.
7.1 Termination Events.
7.1.1 Customer may provide termination notice for any reason or no reason at all. Customer’s obligation to paying all applicable fees is deemed to be a material term of this Agreement.
7.1.2 Either party may also terminate this Agreement, which shall have the effect of terminating the Software license granted hereunder, in the event of the other party’s breach of a material term in the Agreement (including nonpayment of amounts owed pursuant to the terms set forth herein), where such breach continues for a period of thirty (30) days following written notice thereof by the non-breaching party; provided, however, that in the event of Customer’s material breach of either Section IV (Confidential Information) or Section III (Software License Terms) is not of a nature as to be remediable, or is reasonably believed by Cevado to be the result of willful, reckless or grossly negligent acts, then Customer’s license to use the Software shall immediately terminate.
7.1.3 Either party may terminate this Agreement immediately if a party ceases conducting business in the ordinary course, becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, or avails itself of or becomes subject to any proceeding relating to insolvency, bankruptcy or the protection of rights of creditors.
7.2 Effect of Termination. In the event of any termination, Customer shall immediately cease use of the Software and Monthly license fees will be owed through the end of the then-current month (will not be prorated). Terms and conditions in this Agreement, which by their nature and context, are intended to survive any termination, shall so survive such termination.
8.1 Entire Agreement; Assignment; Construction; Performance. This Agreement, together with the accepted fee quote in InfusionsSoft, constitutes the entire agreement between the parties with respect to the Software provided by Cevado and supersedes any prior or contemporaneous agreements, promises or understandings, whether written or oral, relating to the matters covered hereunder. Customer may not assign this Agreement or any of the rights or obligations hereunder without the prior written consent of Cevado. Failure of Cevado to insist in any instance upon strict performance by the other party of any term or condition of this Agreement shall not be construed to be a permanent waiver of such or any other term or condition of this Agreement. Headings used in the Agreement are for reference purposes only and shall not be deemed a part of the Agreement. If any provision of this Agreement is declared invalid by any authorized tribunal, then such provision (or part thereof) shall be stricken and the remaining provisions shall remain in full force and effect. Excluding payment obligations, neither party shall be liable to the other for any delay in the performance of its obligations hereunder which is unavoidable with reasonable diligence, which occurs without its fault or negligence, and which is caused by an event or third party not within its reasonable control; provided, however, that the party so delayed in performance shall promptly notify the other party of the delay and its expected duration.
8.2 Ownership. Customer acknowledges that the Software (including all methods, concepts or techniques utilized therein) and
Software Documentation are commercially valuable to Cevado, and are treated as confidential, proprietary and containing of trade secrets. Except for the rights expressly granted to Customer hereunder, no right in or title to the Software, or any intellectual property rights therein or associated therewith, shall be deemed to have been vested in or transferred to Customer under the terms of the Agreement. All title to and ownership of the Software, and the intellectual property rights therein or associated therewith, remain with Cevado. Subject to the terms protecting Confidential Information, Customer acknowledges that Cevado may use any ideas, concepts, modifications and information arising out of or relating to the Software in the development and distribution of new products, enhancements or applications.
9.3 Governing Law; Venue. This Agreement shall have the effect of a sealed instrument and shall be governed by and construed in accordance with the laws of the State of Washington, excluding its conflict of law rules. The parties agree that Chelan County, Washington shall be the exclusive venue for claims arising out of or in connection with this Agreement. The parties further agree that all disputes, claims or controversies arising out of or relating to this Agreement, whether based on facts occurring before, during or after the term of this Agreement, that are not resolved by the parties’ good faith attempt to negotiate a resolution shall be submitted to final and binding arbitration before the American Arbitration Association (“AAA”) (or another entity agreed upon by the parties), pursuant to the United States Arbitration Act, 9 U.S.C. §1, et. seq.; provided, however, that nothing herein shall prevent either party from seeking injunctive relief in a court of law as set forth herein. The arbitration will be conducted in accordance with the provisions of AAA’s (or other agreed upon entity’s) rules and procedures in effect at the time of the filing of the demand for arbitration. The parties will cooperate with AAA (or other agreed upon entity) and each other in selecting a single arbitrator who shall be a former judge or justice with substantial experience in resolving business disputes with particular experience in resolving disputes involving computer software. The arbitrator shall have the power to award costs and attorneys’ fees to the prevailing party. In the absence of such an award, the cost of arbitration will be shared equally by the parties and each party shall bear its own expenses. The provisions of this section may be enforced by any court of competent jurisdiction. The arbitrator shall not be empowered to award damages in excess of, or inconsistent with, the liability limitations contained in this Agreement.
EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.