License Agreement
This License Agreement (“Agreement”), is entered into on the date identified in the Order Summary (the “Effective Date”) between The AccountAbility Team, LLC, with a principal place of business at 515 Oliver Approach, Johnson City, Tennessee 37601 (“Licensor”), and the individual or entity with a principal place of business identified in the Order Summary (“Licensee”).
Definitions. As used in this Agreement, the following terms shall have the meaning set forth below:
(a) Licensed Product(s) shall mean one or more products, content, services, and/or access identified in the Order Summary which is sent to Licensee and made a part of this Agreement.
(b) Documentation shall mean current information that is printed or otherwise published by Licensor that describes the performance and functionality of a Licensed Product.
(c) Licensed User shall mean a natural person who is invited to and authorized by Licensee to Access a Licensed Product as permitted by the terms and conditions of this Agreement. A person who does not have an active user account with Licensee shall not be a Licensed User.
(d) Access shall mean to connect to a Licensed Product while hosted on a website controlled by Licensor or third party from a device controlled by a Licensed User.
(e) Use shall mean to interact with a Licensed Product while a Licensed User has Access solely for internal business purposes and/or for any other intended purpose that may be specified in the Order Summary.
License Grant, Limitations, and Ownership.
(a) License Grant. Licensor grants to Licensee a non-exclusive right during the Term to Access and Use a Licensed Product in accordance with the terms and conditions of this Agreement, including the Documentation. The rights granted herein may not be sub-licensed by Licensee except to a Licensed User.
(b) Limitations on Rights. Except as expressly provided in this Agreement, Licensee shall not: (i) license, grant, sell, resell, transfer, assign, copy, distribute, or otherwise commercially exploit or make available to any third-party, Access to, or Use of any Licensed Product or any content contained in a Licensed Product; (ii) attempt to reverse engineer, decompile, disassemble, Access, or Use a Licensed Product to build a competitive product or service, build a product using ideas, features, functions, or graphics that are similar to a Licensed Product, or copy any ideas, features, functions, or graphics of a Licensed Product; (iii) modify or make derivative works based upon a Licensed Product; (iv) use or permit Licensed Users to use a Licensed Product in any manner that interferes with, disrupts, or creates an undue burden or imposes an unreasonable load on a Licensed Product; or (v) disclose the results of any benchmark test of a Licensed Product or the results thereof without Licensor’s prior, written consent. Licensee shall take commercially reasonable steps and precautions to prevent and stop a Licensed User from taking actions in violation of any of the foregoing limitations.
(c) Ownership; No Other Rights. The rights granted under this Agreement cover only rights to Access and Use a Licensed Product. All rights, title, and interests in and to a Licensed Product and all parts thereof, including all copyrights, patents, trade secrets, and trademarks therein, derivative works, improvements, and modifications, in whatever media or form are and shall remain the exclusive property of Licensor and/or are hereby assigned to Licensor. Nothing contained in this Agreement shall be construed as conferring by implication, estoppel, or otherwise, any rights to any other product under any intellectual property, other than the rights expressly granted in this Agreement with respect to a Licensed Product.
(d) Third-Party Hosting. A Licensed Product may be hosted by a third-party. In such instances, Licensee shall be subject to the terms and conditions, representations and warranties, and any other contractual provisions provided by those third-parties.
Obligations of Licensor.
Support. Licensor shall use commercially reasonable efforts during the Term to maintain Access to a Licensed Product for Licensed Users and to provide the levels of service, support, and maintenance to Licensee which are in accordance with Licensor’s then-current Documentation for a Licensed Product. Licensor makes no representations or guarantees as to the continuous availability of a Licensed Product or as to the presence of any specific feature(s) of a Licensed Product. If desired by Licensee, Licensor shall provide additional support services to Licensee for a Licensed Product as may be specified in the Order Summary.
Deliverables. Licensor shall provide to Licensee the documents and other physical materials (“Deliverables”) that may be identified in the Order Summary.
Obligations of Licensee.
(a) Controlling Licensed Users. Licensee shall be solely responsible for credentialing Licensed Users, and as applicable, for assigning administrator roles and authority levels with respect to Access to a Licensed Product. Licensee shall take commercially reasonable steps and precautions to prevent and stop anyone who is not a Licensed User from accessing or using a Licensed Product, including insuring that only Licensed users are provided with credentials and other information to Access a Licensed Product. Licensee shall notify Licensor immediately if the security or integrity of potential Access to a Licensed Product has been compromised by contacting Licensor at shana.cooper@theaccountabilityteam.com. Licensee shall notify Licensor immediately of any known or suspected unauthorized use of any login ID, password, account, or any other known or suspected breach of security.
(b) Compliance with Other Obligations. Licensee acknowledges and agrees that Access and Use of a Licensed Product shall be expressly conditioned on a Licensed User’s compliance with Licensor’s standard website Terms of Use and Privacy Policy that are published by Licensor when Accessing a Licensed Product. Licensee and all Licensed Users shall comply with all applicable laws, statutes, rules, and regulations, including, without limitation, those related to data privacy, internet access by minors, international communications, the Family Educational Rights and Privacy Act, and the transmission of technical or personal data (collectively, the "Restrictions"). Licensee shall take commercially reasonable steps and precautions to prevent and stop a Licensed User from taking actions in violation of any of the foregoing Restrictions. Licensee shall promptly notify Licensor of any violation of any Restrictions which would apply to Access or Use of a Licensed Product or to potential use of data entered by Licensee. Licensor may modify or suspend Access of Licensee or any Licensed User as necessary to comply with the Restrictions. This remedy shall be in addition to, and shall not limit, Licensor’s ability to terminate this Agreement based on material breach or to pursue damages or other remedies available under law and equity.
Fees and Payments.
(a) Fees. Licensee shall pay Licensor the fees set forth in the Order Summary (“Fees”) in accordance with this Section 5.
(b) Taxes. All Fees and other amounts payable by Licensee under this Agreement are exclusive of taxes and similar assessments. Licensee is responsible for all sales, use, and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Licensee hereunder, other than any taxes imposed on Licensor’s income.
(c) Payment. Licensee shall pay all Fees on or prior to the due date set forth in the Order Summary. Licensee shall make payments to the address or account specified in the Order Summary or such other address or account as Licensor may specify in writing from time to time.
Term and Termination.
(a) Initial Term. Unless otherwise specified in the Order Summary, the initial term of this Agreement commences as of the Effective Date set forth above and, unless earlier terminated as provided herein, shall continue in effect for one (1) year or until the time/event otherwise specified in the Order Summary (“Initial Term”).
(b) Product Testing Period. During a period of thirty (30) days following the date of first Access by a Licensed User of a Licensed Product (“Product Testing Period”), Licensee shall notify Licensor of any issue wherein a Licensed Product does not provide the functionality and performance characteristics described in the Documentation. Licensor shall have thirty (30) days from receipt of such notification to correct the issues identified by the Licensee. If the issues are not corrected to achieve the functionality and performance as described in the Documentation, this Agreement shall terminate, and Licensor shall provide a full refund of the License and Implementation fees paid by Licensee.
(c) Renewal Term. Should a Renewal Term apply to a Licensed Product(s), the details of that Renewal Term will be provided in the Order Summary.
(d) Termination. In addition to any other remedies it may have, either party may terminate this Agreement upon thirty (30) days written notice (or without notice in the case of non-payment), if the other party materially breaches any of the terms or conditions of this Agreement.
(f) Effect of Termination. Immediately upon termination, Licensor shall have the right to terminate all Access and Use of a Licensed Product by Licensee and Licensed Users. Licensee shall pay in full for all rights and services provided up to and including the last day on which such rights and services are provided prior to termination. All terms and conditions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
Intellectual Property and Other Rights
(a) Licensee Trademark Rights. Licensee grants to Licensor a non-exclusive, non-transferable right and license to use Licensee’s trademarks and logos (the “Licensee Marks”) in connection with Licensor’s provision of a Licensed Products to Licensee, and for the purpose of identifying Licensee as a Licensee under this Agreement.
(b) Licensor Trademark Rights. Subject to all the terms and conditions of this Agreement and any reasonable trademark usage guidelines of Licensor, Licensor grants Licensee a non-exclusive, worldwide, royalty-free license during the Term to use Licensor’s trademarks, service marks, and logos (the “Licensor Marks”) solely to promote the use of a Licensed Product.
(c) Licensed Product. All right, title, and interest in and to a Licensed Product are and will remain with Licensor. Licensee has no right, license, or authorization with respect to a Licensed Product except as expressly set forth in Section 2. All other rights in and to a Licensed Product are expressly reserved by Licensor.
Confidentiality.
(a) Confidential Information. Any non-public data, information, and other materials of a party (and/or, if either party is bound to protect the confidentiality of any third-party’s information, of a third-party) which is either marked “confidential” or which should reasonably be understood by the party to be confidential which is disclosed by either party (“Disclosing Party”) to the other party (“Receiving Party”) constitutes the confidential and information (“Confidential Information”) of the Disclosing Party.
(b) Treatment of Confidential Information. The Receiving Party agrees to treat all Confidential Information of the Disclosing Party in the same manner as it treats its own similar Confidential Information, but in no case with less than reasonable care. Without limiting the foregoing, (i) a Licensed Product and all software, source code, source documentation, inventions, know-how, and ideas, updates, and any documentation and information relating thereto shall be the Confidential Information of the Licensor, and (ii) all information regarding Licensee’s network, Licensed Users, business plans, and other information disclosed by Licensee and identified as confidential to Licensor shall be the Confidential information of Licensee. The Receiving Party shall retain the Confidential Information in trust and confidence and not use the Confidential Information for any purpose other than performing its obligations or exercising its rights under this Agreement or disclose the Confidential Information to any third-party without the Disclosing Party’s express written consent.
(c) Exceptions. The restrictions on disclosure and use of Confidential Information as provided in this Section 8 shall not apply to information which the Receiving Party can establish: (i) is already known to the Receiving Party prior to disclosure by the Disclosing Party as evidenced by written records, (ii) becomes publicly available without fault of the Receiving Party, (iii) is rightfully obtained by the Receiving Party from a third-party without restriction as to disclosure, or is approved for release by written authorization of the Disclosing Party, or (iv) is developed independently by the Receiving Party without use of or access to the Disclosing Party’s Confidential Information as evidenced by written records. The Receiving Party may disclose Confidential Information to the extent it is required to be disclosed by law or governmental regulation, provided that the Receiving Party provides reasonable notice to the Disclosing Party of such required disclosure and reasonably cooperates with the Disclosing Party in limiting such disclosure.
Representations, Warranties, Limitation of Liability, and Indemnification.
(a) Representations by Licensor. Licensor represents and warrants that (i) Licensor has the right, power, and authority to enter into this Agreement and to fully perform its obligations under this Agreement, (ii) the entering into and performance of this Agreement by Licensor does not violate, conflict with, or result in a material default under any other Contract or agreement to which Licensor is a party, or by which it is bound, and (iii) a Licensed Product will function materially in accordance with the Documentation, as may be updated by Licensor from time to time.
(b) Representations by Licensee. Licensee represents and warrants that (i) it has the right, power, and authority to enter into this Agreement and to fully perform its obligation under this Agreement, (ii) the entering into and performance of this Agreement by Licensee does not violate, conflict with, or result in a material default under any other contract or agreement to which Licensee is a party, or by which it is bound, and (iii) Licensor’s access to and use of Licensee-entered data will not violate or conflict with any Restrictions or any agreements that Licensee has with any Licensed User or any other party.
(c) Disclaimer of Warranties. EXCEPT AS OTHERWISE PROVIDED ABOVE, A LICENSED PRODUCT, DOCUMENTATION, AND SERVICES ARE PROVIDED BY LICENSOR “AS IS.” LICENSOR EXPRESSLY DISCLAIMS ALL PROMISES, REPRESENTATIONS, AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE. LICENSOR MAKES NO REPRESENTATION OR WARRANTY THAT USE OF A LICENSED PRODUCT WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; OR A LICENSED PRODUCT WILL MEET LICENSEE’S REQUIREMENTS OR EXPECTATIONS.
(d) Limitation of Liability. Under no circumstances shall Licensor be liable to Licensee for indirect, incidental, punitive, consequential, special, exemplary, or other damages of any type or kind (even if such damages are foreseeable or that Licensor has been advised or has constructive knowledge of the possibility of such damages), arising from Licensor’s performance or non-performance pursuant to any provision of this Agreement or arising out of, or in any way connected with, Access or Use of a Licensed Product including, without limitation, inability to Access a Licensed Product, loss of revenue or anticipated profits, loss of business, loss of use, loss of data or any content, interruption of business or cost of procurement of substitute goods and Licensed Product or any inaccuracy, error or omission, regardless of cause. In no event shall Licensor’s liability to Licensee for any cause of action or claim, whether in contract or in tort (including negligence), exceed the total amount of fees paid or payable by Licensee to Licensor under this Agreement during the twelve month period immediately preceding the date on which such cause of action arises.
Communications. By entering into this Agreement, Licensee hereby consents to receive communications from Licensor related to, without limitation, general support, alerts, and marketing.
Force Majeure.
(a) No Breach or Default. In no event will Licensor be liable or responsible to Licensee, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond Licensor’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the Effective Date, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more.
(b) Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, Licensor shall give prompt written notice to Customer stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
General Provisions.
(a) Entire Agreement; Amendments; Counterparts. This Agreement, including the Order Summary provided to the Licensee hereto, and the Documentation, constitutes the entire agreement between the parties with respect to the license that is the subject of this Agreement and all prior and contemporaneous communications and proposals, whether electronic, oral, or written, between the parties with respect to such subject matter are superseded by this Agreement. This Agreement (excluding the Documentation) may not be modified except by a written agreement dated subsequent to the date of this Agreement and signed on behalf of Licensee and Licensor by their respective duly authorized officers. This Agreement can be signed in counterparts. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.
(b) Governing Law and Disputes (Venue and Jurisdiction). The validity, performance, construction, and interpretation of this Agreement shall be governed by the laws of the State of Tennessee, without regard to its conflict of law provisions. Any dispute arising under, in connection with, or incident to this Agreement or concerning its interpretation will be resolved exclusively in the court of the State of Tennessee that has appropriate subject matter jurisdiction. Each party hereto waives any objection as to said venue and submits to the personal jurisdiction of said court but only for purposes of resolving any dispute under this Agreement.
(c) Severability. If a court of competent jurisdiction holds any term, covenant, or restriction of this Agreement to be illegal, invalid, or unenforceable, in whole or in part, the remaining terms, covenants, and provisions will remain in full force and effect and will in no way be affected, impaired, or invalidated. If any provision of this Agreement is determined to be unenforceable in equity because of its scope, duration, geographical area or other factor, then the court making that determination will have the power to reduce or limit such scope, duration, area, or other factor, and such provision will be then enforceable in equity in its reduced or limited form.
(d) Construction and Headings. The section headings used in this Agreement are for convenience only, and the parties do not intend that they be used in interpreting this Agreement.
(e) Limited Assignment. The obligations of Licensee in this Agreement shall run in favor of any such successor and of any assignee of Licensor’s benefits under this Agreement. Licensee may not transfer or assign any of its rights under this Agreement except to a third-party that acquires substantially all of Licensee’s business as part of a sale, merger, assignment, or any other transfer of all or a substantial portion of the assets of such business.
In Witness Whereof, the parties have caused this Agreement to be made and executed by duly authorized officers as of the date and year first indicated above.
The AccountAbility Team, LLC