Privacy Policy

 

Application Service Provider Agreement
 
In consideration of the mutual promises contained herein, the parties hereby agree to the following:
 
1.                Background. Company has developed certain Software (defined below), which it provides as part of its ASP Services (defined below).  Subscriber wishes to utilize the ASP Services, and Company desires to make the ASP Services available to Subscriber, subject to the following terms and conditions.
2.                Definitions.  Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.
2.1             “Administrative User” means each employee or contractor of Subscriber that Subscriber identifies to Company by name as being authorized to use the Software through the administrative interface. 
2.2             “ASP Services” means the services set forth in Exhibit A provided directly by Company to Subscriber under this Agreement that are associated with the Software and Documentation. 
2.3             “Documentation” means the technical materials provided by Company to Subscriber in hard copy or electronic form describing the use and operation of the Software.
2.4             “End User” means each person who has expressed or implied authorization from Subscriber to access the Software.
2.5             “Error” means a reproducible failure of the Software to substantially conform to the Documentation.
2.6             “Error Corrections” means bug fixes or workarounds intended to correct Errors in the Software.
2.7             “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
2.8             “Subscriber Content” means any content developed by or on behalf of Subscriber and used with the Software.
2.9             “Software” means the software programs used to provide the ASP Services and any associated user interfaces and related technology that Company makes available pursuant to this Agreement. 
2.10          “Supported Environment” means the minimum hardware, software, and connectivity configuration specified from time to time by Company as required for use of the ASP Services.  The current requirements are described in Exhibit A.
2.11          “Users” means End Users and Administrative Users.
 
3.                Provision of ASP Services
3.1             Access.  Subject to Subscriber’s payment of the fees set forth in Exhibit A and compliance with the Access Protocols, Company will provide the ASP Services as specified in Exhibit A.  On or as soon as reasonably practicable after the Effective Date, Company shall provide to Subscriber the necessary security protocols and policies and network links or connections (the “Access Protocols”) to allow Administrative Users to access the administrative features of the Software and End Users to access the end user features of the Software.   
3.2             Usernames and Passwords.  Each Administrative User shall have an unique username and password to enable such Administrative User to access the ASP Services, Software and Documentation pursuant to this Agreement. Each username and password may only be used to access the ASP Services, Software and Documentation during one (1) concurrent login session.  Subscriber (a) will provide to Company information and other assistance as necessary to enable Company to establish usernames for Administrative Users; (b) will verify all Administrative User requests for account passwords; (c) will ensure that each username and password issued to a Administrative User will be used only by that Administrative User; (d) is responsible for maintaining the confidentiality of all Administrative Users’ usernames and passwords; (e) is solely responsible for all activities that occur under these usernames; (f) agrees not to allow a third party to use its account, usernames or passwords at any time; and (g) agrees to notify Company promptly of any actual or suspected unauthorized use of its account, Administrative User or End User usernames or passwords, or any other breach or suspected breach of this Agreement.  Company reserves the right to terminate any username and password that Company reasonably determines may have been used by an unauthorized third party.  Subscriber acknowledges and agrees that only Administrative Users and the number of End Users authorized under this Agreement are entitled to access the ASP Services, Software and Documentation.  Subscriber acknowledges and agrees that, as between Subscriber and Company, Subscriber shall be responsible for all acts and omissions of Users, and any act or omission by such Users which, if undertaken by Subscriber, would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by Subscriber. 
4.                Intellectual Property
4.1             Limitations.  The ASP Services, Software, Documentation, and all other materials provided by Company hereunder, including but not limited to all manuals, reports, records, programs, data and other materials, and all Intellectual Property Rights in each of the foregoing, are the exclusive property of Company and its suppliers.    Subscriber agrees that it will not, and will not permit any User or other party to: (a) permit any party to access the Software or Documentation or use the ASP Services, other than the Users authorized under this Agreement; (b) modify, adapt, alter or translate the Software or Documentation, except as expressly allowed herein; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Software or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Software; (e) use or copy the Software or Documentation except as expressly allowed under this subsection; or (f) disclose or transmit any data contained in the Software to any individual other than a User, except as expressly allowed herein.  Notwithstanding the foregoing, decompiling the Software is permitted to the extent the laws of Subscriber’s jurisdiction require Company to give Subscriber the right to do so to obtain information necessary to render the Software interoperable with other software; provided, however, that Subscriber must first request such information from Company and Company may, in its discretion, either provide such information to Subscriber or impose reasonable conditions, including a reasonable fee, on such use of the source code for the Software to ensure that Company’s and its suppliers’ proprietary rights in the source code for the Software are protected.  Subscriber acknowledges and agrees that the ASP Services, Software, and Documentation will not be used, and are not licensed for use, in connection with any of Subscriber’s time-critical or mission-critical functions.  Except as expressly set forth herein, no express or implied license or right of any kind is granted to Subscriber regarding the ASP Services, Software, Documentation, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the Software.    Subscriber agrees that Subscriber will not use the ASP Services in any manner for spamming, sending chain letters, junk mail, or using a distribution list to communicate with a person who has not given Subscriber specific permission to contact them in such a manner.  Subscriber agrees not to use the ASP Services to display, transmit or otherwise provide access to any unlawful, infringing, libelous, obscene or harassing content of any kind.  Subscriber agrees to use the ASP Services only in a lawful manner.
4.2             Ownership.  The ASP Services, Software, Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Company and its suppliers.  All rights in and to the ASP Services, Software and Documentation not expressly granted to Subscriber in this Agreement are reserved by Company and its suppliers.  Except as expressly set forth herein, no express or implied license or right of any kind is granted to Subscriber regarding the Software, Documentation, and ASP Services or any part thereof, including any right to obtain possession of any source code, data or other technical material related to the Software.   
4.3             Open Source Software.  Certain items of software may be provided to Subscriber with the Software and are subject to “open source” or “free software” licenses (“Open Source Software”).  Some of the Open Source Software is owned by third parties.  The Open Source Software is not subject to the terms and conditions of the section titled Indemnification.  Each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software.  Nothing in this Agreement limits Subscriber’s rights under, or grants Subscriber rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Company makes such Open Source Software, and Company’s modifications to that Open Source Software, available by written request at the notice address specified below.
5.                Payment.  Subscriber will pay to Company the fees set forth in Exhibit B.  In the event that Subscriber wishes to increase the number of End Users beyond the maximum number of End Users, if any, set forth in Exhibit A for which fees have been paid, Subscriber shall be required to pay additional fees associated with the increased number of End Users, prorated for the remainder of the term.  Except as otherwise provided in Exhibit B, all fees and other charges are due and payable to Company within thirty (30) days after the date of Company’s invoice.  The fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Subscriber will be responsible for payment of all such taxes (other than taxes based on Company’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the delivery of the ASP Services, or the license of the Software to Subscriber.  Subscriber will make all payments of fees to Company free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to Company will be Subscriber’s sole responsibility, and Subscriber will provide Company with official receipts issued by the appropriate taxing authority, or such other evidence as the Company may reasonably request, to establish that such taxes have been paid.  Subscriber shall indemnify and defend Company in connection with any proceedings brought by any taxing authorities in connection with this Agreement. Subscriber shall reimburse Company for all costs, pre-approved by Subscriber, including Company’s reasonable out-of-pocket (including travel and living) expenses incurred in performing its obligations hereunder.  All costs and expenses incurred by Subscriber in connection herewith are the sole responsibility of Subscriber.  Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less.  Company shall be entitled to withhold performance and discontinue service until all amounts due are paid in full.  Subscriber will permit Company or its representatives to review Subscriber’s relevant records and inspect Subscriber’s facilities to ensure compliance with this Agreement.  Company will give Subscriber at least ten (10) days advance notice of any such inspection and will conduct the same during normal business hours in a manner that does not unreasonably interfere with Subscriber’s normal operations.  If any such audit should disclose any underpayment of fees, Subscriber shall promptly pay Company such underpaid amount, together with interest thereon at the rate specified in this section.  If the amount of such underpayment exceeds five percent (5%) of fees actually paid during the audited period, Subscriber shall also pay Company for Company’s expenses associated with such audit.
6.                Subscriber Content. 
6.1             License; Ownership.  Subscriber grants Company a non-exclusive, worldwide, royalty-free and fully paid license (a) to use the Subscriber Content as necessary for purposes of providing the ASP Services and (b) to use the Subscriber trademarks, service marks, and logos as required to provide the ASP Services.  The Subscriber Content hosted by Company as part of the ASP Services, and all worldwide Intellectual Property Rights in it, is the exclusive property of Subscriber.  All rights in and to the Subscriber Content not expressly granted to Company in this Agreement are reserved by Subscriber.
6.2             Subscriber Warranty.  Subscriber represents and warrants that any Subscriber Content hosted by Company as part of the ASP Services shall not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Company’s system or data; or (e) otherwise violate the rights of a third party.  Company is not obligated to back up any Subscriber Content; the Subscriber is solely responsible for creating backup copies of any Subscriber Content at Subscriber’s sole cost and expense.  Subscriber agrees that any use of the ASP Services contrary to or in violation of the representations and warranties of Subscriber in this section constitutes unauthorized and improper use of the ASP Services.
6.3             Copyright Policy.  Company reserves the right to terminate its agreement with any Subscriber who repeatedly infringes third party copyright rights upon prompt notification to Company by the copyright owner or the copyright owner’s legal agent.  Without limiting the foregoing, if Subscriber believes that a copyrighted work has been copied and posted via the ASP Services in a way that constitutes copyright infringement, Subscriber shall provide Company with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work; (b) an identification and location in connection with the ASP Services of the copyrighted work that Subscriber claims has been infringed; (c) a written statement by Subscriber that Subscriber has a good faith belief that the disputed use is not authorized by the owner, its agent, or the law; (d) the name and contact information, such as telephone number or e-mail address, of Subscriber; and (e) a statement by  Subscriber that the above information in Subscriber’s notice is accurate and, under penalty of perjury, that Subscriber is the copyright owner or authorized to act on the copyright owner’s behalf.  Contact information for Company’s Copyright Agent for notice of claims of copyright infringement is as follows:
                              Motionsoft, Inc.
                              Attn: Copyright Agent
                              Janice Bader
                              Symbus Law Group, LLC
                                             8701 Georgia Ave, Ste 200, Silver Spring, MD 20910
7.                Warranties and Disclaimers.
7.1             Limited Warranty.  Company warrants to Subscriber that the Software will operate free from Errors during the term of the Agreement.  Provided that Subscriber notifies Company in writing of any breach of the foregoing warranty during the term hereof, Company shall, as Subscriber’s sole and exclusive remedy, provide the support set forth in Exhibit A to this Agreement.  This warranty gives Subscriber specific legal rights, and Subscriber may also have other rights which vary from jurisdiction to jurisdiction.   
7.2             Disclaimer.  THE LIMITED WARRANTY SET FORTH IN THIS SECTION IS MADE FOR THE BENEFIT OF SUBSCRIBER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE Software, Documentation, AND ASP SERVICES ARE PROVIDED “AS IS,” AND COMPANY MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE Software, Documentation, OR ASP SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO SUBSCRIBER BY COMPANY.  COMPANY DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE software AND ASP SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE.  SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO SUBSCRIBER.
8.                Limitation of Liability. 
8.1             Types of Damages.  TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, COMPANY OR ITS SUPPLIERS SHALL NOT BE LIABLE TO SUBSCRIBER FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH COMPANY’S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE THE Software, Documentation, ASP SERVICES OR OTHER PRODUCTS OR SERVICES HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF COMPANY HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. 
8.2             Amount of Damages.  THE MAXIMUM LIABILITY OF COMPANY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY SUBSCRIBER TO COMPANY DURING THE SIX (6) MONTHS PRECEDING THE CLAIM.  The existence of one or more claims under this agreement will not increase Company’s liability.  IN NO EVENT SHALL COMPANY’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.  NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE COMPANY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF COMPANY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.  SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO SUBSCRIBER.
8.3             Basis of the Bargain.  The parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy.  The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties. 
9.                Confidentiality
9.1             Confidential Information.  During the term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or services or other confidential or proprietary information (collectively, “Confidential Information”).  The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information within thirty (30) days after such oral disclosure.  Regardless of whether so marked or identified, the Software, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Company.
9.2             Protection of Confidential Information.  The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement.  The Receiving Party will limit access to the Confidential Information to Users (with respect to Subscriber) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Company).  In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care.  At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence. 
9.3             Exceptions.  The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information.  In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
10.             Indemnification 
10.1          By Company.  Company will defend at its expense any suit brought against Subscriber, and will pay any settlement Company makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Software or the ASP Services misappropriates any trade secret recognized under the Uniform Trade Secrets Act or infringes any copyright or United States patent issued as of the Effective Date.  If any portion of the Software or the ASP Services becomes, or in Company’s opinion is likely to become, the subject of a claim of infringement, Company may, at Company’s option: (a) procure for Subscriber the right to continue using the Software or the ASP Services; (b) replace the Software or the ASP Services with non-infringing software or services which do not materially impair the functionality of the Software or the ASP Services; (c) modify the Software or the ASP Services so that it becomes non-infringing; or (d) terminate this Agreement and refund any fees actually paid by Subscriber to Company for the remainder of the term then in effect, and upon such termination, Subscriber will immediately cease all use of the Software, Documentation, and ASP Services.  Notwithstanding the foregoing, Company shall have no obligation under this section or otherwise with respect to any infringement claim based upon (w) any use of the Software or the ASP Services not in accordance with this Agreement or as specified in the Documentation; (x) any use of the Software or the ASP Services in combination with other products, equipment, software or data not supplied by Company; or (y) any modification of the Software or the ASP Services by any person other than Company or its authorized agents.  This subsection states the sole and exclusive remedy of Subscriber and the entire liability of Company, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
10.2          By Subscriber.  Subscriber will defend at its expense any suit brought against Company, and will pay any settlement Subscriber makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to Subscriber’s breach or alleged breach of the subsections titled Subscriber Warranty and Copyright Policy.  This subsection states the sole and exclusive remedy of Company and the entire liability of Subscriber, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.
10.3          Procedure.  The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit. 
11.             Term And Termination.
11.1          Term.  This Agreement commences on the Effective Date and remains in effect for a period of 90 Days.  This Agreement shall be automatically renewed for consecutive one (1) year terms unless either party provides written notice to the other of its intention not to renew at least thirty (30) days prior to the expiration of the then-current term.   
11.2          Termination.  Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.  Subscriber may terminate this Agreement for convenience, effective thirty (30) days from written notice of termination to Company, by paying to Company, as liquidated" damages and not as a penalty, an amount equal to the greater of: (a) $1,200, or (b) the amount equal to the fees payable by Subscriber to Company hereunder during the three (3) months preceding such notice of termination.
11.3          Effect of Termination.  Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both parties, including all licenses granted hereunder, shall immediately terminate; (b) within ten (10) days after the effective date of termination, each party shall comply with the obligations to return all Confidential Information of the other party, as set forth in the section titled Confidentiality; and (c) within ten (10) days after the effective date of termination, Company shall discontinue all use of Subscriber Content and destroy all copies of Subscriber Content in its possession.  The sections and subsections titled Definitions, Limitations, Warranties and Disclaimers, Limitation of Liability, Confidentiality, Indemnification, Effect of Termination, and Miscellaneous will survive expiration or termination of this Agreement for any reason.
12.             Miscellaneous.
12.1          Governing Law and Venue.  This Agreement and any action related thereto will be governed and interpreted by and under the laws of the Commonwealth of Virginia, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction.  Subscriber hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for the county in which Company’s principal place of business is located for any lawsuit filed there against Subscriber by Company arising from or related to this Agreement.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The laws of the jurisdiction where Subscriber is located may be different from California law.  Subscriber shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Software, Documentation, or ASP Services hereunder.
12.2          Export.  Subscriber agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.
12.3          Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.  Without limiting the generality of the foregoing, Subscriber agrees that the section titled Limitation of Liability will remain in effect notwithstanding the unenforceability of any provision in the subsection titled Limited Warranty
12.4          Waiver.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.5          Remedies.  Except as provided in the sections titled Limited Warranty and Indemnification, the parties’ rights and remedies under this Agreement are cumulative.  Subscriber acknowledges that the ASP Services, Software, and Documentation contain valuable trade secrets and proprietary information of Company, that any actual or threatened breach of the sections titled Intellectual Property or Confidentiality or any other breach by Subscriber of its obligations with respect to Intellectual Property Rights of Company will constitute immediate, irreparable harm to Company for which monetary damages would be an inadequate remedy.  In such case, Company will be entitled to immediate injunctive relief without the requirement of posting bond, including an order that any Software, Documentation, or any portions thereof, that Subscriber attempts to import into any country or territory be seized, impounded and destroyed by customs officials.  If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
12.6          No Assignment.  Neither party shall assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party.  The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns.
12.7          Force Majeure.  Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
12.8          Independent Contractors. Subscriber’s relationship to Company is that of an independent contractor, and neither party is an agent or partner of the other.  Subscriber will not have, and will not represent to any third party that it has, any authority to act on behalf of Company.
12.9          Notices. Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party at the address listed on the signature page by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service.  Notice will be effective upon receipt or refusal of delivery.  If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark.  If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party.
12.10       Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.
12.11       Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Subscriber and the CEO of Company.
 


 
Exhibit A
ASP Services

A.1   SOFTWARE AND ASP SERVICES
 
Subject to the terms and conditions of the Agreement, Company will provide to Subscriber the following ASP Services:
 
1.            The “ASP Service” means the services and content made accessible by Company to Subscriber and its Users by means of access to certain content and use of the features and functionality of the Software.  The “Software” means Company’s myClub software, which adds functionality to Subscriber’s website to let prospects sign-up for a free trial or membership, and give members complete access to their accounts to make payments, renew memberships, and update info online or via mobile devices.
 
2.            Access:
a.                At Subscriber’s request and at no charge to Subscriber, Company will provide an initial 4-hour training session to instruct Administrative Users regarding the basic access and use of the Software.
b.                The Users are the only individuals within Subscriber licensed to use ASP Services.  The maximum number of End Users is unlimited, for which Subscriber has paid the required Fees set forth in Exhibit C.  Subscriber is responsible for monitoring and maintaining its use within the foregoing parameters.  Company and/or its suppliers may audit applicable records in order to verify Subscriber’s compliance with the End User parameters.
c.                Subscriber must maintain the following Supported Environment to use the ASP Services.
 
3.            Support:
During the Term, support provided to Subscriber shall comprise the following:
a.                Support Terms.  Company shall provide a telephone number for use by Administrative Users, Monday through Friday, 8:00 am to 8:00 pm EST, US holidays excluded, for problem resolution assistance.  This hot line is only available to Administrative Users.  Subscriber will be solely responsible for the support of all End Users accessing the ASP Services.
b.                Error Corrections.  Company will use commercially reasonable efforts to correct all Errors in the Software reported by Subscriber in writing to Company.  Company will utilize remote diagnostic procedures whenever possible for Error diagnosis and Error Correction. Company may not issue Error Corrections for all Errors.
c.                Improvements.  During the Term, Company may, in its sole discretion, provide Subscriber with updates, upgrades, enhancements, and any other improvements that Company then generally offers to other subscribers to the ASP Service.
 
4.            Exclusions.  Company shall have no responsibility or liability of any kind, whether for breach of warranty or otherwise, arising or resulting from: (a) Subscriber’s or Users’ use of any version of the Software or the ASP Services other than the then-current unmodified version provided to Subscriber; (b) any problems which are not Errors; (c) problems caused by failed Internet connections or other hardware, software or equipment which is not owned, controlled or operated by Company; (d) nonconformities resulting from misuse, abuse, negligence, or improper or unauthorized use of all or any part of the ASP Services, Software, or Documentation; (e) problems or Errors caused by Subscriber’s, Users’, or other third party’s products, services or equipment; or (f) modification, amendment, revision, or change to the Software or the ASP Services by any party other than Company or Company-authorized representatives.  Any use of or reliance on data or data output contained in the Software or the ASP Services is Subscriber’s or User’s sole responsibility.
 
5.            Subscriber Responsibilities.  It shall be Subscriber’s sole responsibility to perform those specific services that are necessary to establish Subscriber’s or Users’ use of the Software, Documentation, and ASP Services.  This includes, but is not limited to:  (a) providing employee lists to Company to setup Administrative User accounts, (b) setting up End User accounts in accordance with the Agreement, and (c) designating Users to participate in training.