________________________________
ACCELAS, INC., dba AGENCY FUSION
WEBSITE AND SOFTWARE LICENSE AGREEMENT
NOTICE TO USER:
THIS IS A CONTRACT. PLEASE READ IT CAREFULLY. BY INDICATING YOUR ACCEPTANCE BELOW, YOU ACCEPT AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, DECLINE WHERE INSTRUCTED, AND YOU WILL BE PROHIBITED FROM USING THE SYSTEM.
________________________________
This Website and Software License Agreement (the "Agreement") between Accelas, Inc., a Utah corporation dba Agency Fusion ("Company"), and you and the Person you represent in connection with this Agreement (hereinafter referred to collectively as "User") sets forth the terms and conditions under which User is licensed to use the System (as defined below). Company and User are sometimes referred to herein individually as the "Party," and collectively as the "Parties."
1. Definitions. The following terms shall have the meaning assigned to them throughout the entirety of this Agreement.
(a) Account. The term "Account" shall refer to User's contractual relationship with Company under this Agreement pursuant to which User shall access and use those portions of the System available to it under the Subscription Plan associated with User's Account with a unique username and password.
(b) Commencement Date. The term "Commencement Date" shall have the meaning assigned to it in Paragraph 8 below.
(c) Documentation. The term "Documentation" shall refer to any and all manuals, technical manuals and other similar documentation related to the System as prepared by the Company and available on the Tweak Website or otherwise.
(d) License. The term "License" shall refer to the license granted by Company to User pursuant to Paragraph 2 below and subject to the terms and conditions of this Agreement.
(e) License Fees. The term "License Fees" shall refer to the payment obligations of User, pursuant to Paragraph 6, in consideration of the License.
(f) Monthly Fee Amount. The term "Monthly Fee Amount" shall be that amount of money required to be paid monthly in consideration of the Subscription Plan associated with User's Account as delineated on the Service Matrix.
(g) Person. The term "Person" shall refer to any natural person, corporation, partnership, limited liability company, association, trust, trustee, governmental or quasi-governmental entity or any other person or entity.
(h) Service Matrix. The term "Service Matrix" shall refer to that certain table maintained by Company on the Tweak Website that sets forth each Subscription Plan and the services and Monthly Fee Amount associated therewith, as may be modified by Company from time to time without notice.
(i) Subscription Plan. The term "Subscription Plan" shall refer to a bundle of services made available on the System to System users who wish to subscribe to such services at the Monthly Fee Amount associated therewith as delineated on the Service Matrix.
(j) Support Services. The term "Support Services" shall refer to those obligations of the Company, if any, under the Subscription Plan associated with User's Account, to provide support to User regarding use of the System by User as delineated on the Service Matrix.
(k) System. The term "System" shall mean the Tweak Content Management System including without limitation all of the System Code, images, documents, video files, audio files, media, or other files that originate from the Tweak Website, and any Documentation related thereto.
(l) System Code. The term "System Code" shall refer to (i) all machine readable sequences of instructions executable by an electronic computer that originate from the Tweak Website and (ii) all source code and other written programs and instructions capable of being translated into machine readable sequences of instructions executable by an electronic computer associated with the System and the Tweak Website.
(m) Tweak Website. The term "Tweak Website" shall mean Company's website found at http://www.tweakcms.com, including without limitation all second-level domains or any subdomains thereof and any and all web pages assessable therefrom.
(n) User's Website. Shall refer to the website created by User by using the System pursuant to the License, including all code, pages, text, graphic, video, audio, and other files associated therewith.
2. License. During any Term of this Agreement, Company grants to User and User accepts a nonexclusive, revocable, nontransferable license (the "License"), subject to the terms and conditions herein, to access and use those components of the System included in the Subscription Plan associated with User's Account to create and maintain a single website.
User shall not use the System in any way or for any purpose other than that specifically outlined in the preceding paragraph ("Unauthorized Use"). Without limiting the forgoing, User shall specifically not:
(a) reverse engineer, decompile, disassemble or otherwise attempt to discover any of the System Code;
(b) lease, assign, rent, sublicense, sell, loan, or otherwise transfer any right under the License to another party without the express written consent of Company;
(c) modify, reproduce, prepare derivative works based upon, transmit or distribute the System, or any component thereof;
(d) upload or store any document or file or any type that is infected with or is a virus or other program that is harmful in any way to the System or any of the networks connected thereto;
(e) display any pornographic photographs, images, or text, or other obscene, indecent, libelous, or racially derogatory material or content, as determined by the Company in its sole discretion, on User's Website; or
(f) use the System or any component thereof to provide an online service relating to gambling or for any use which is illegal under the laws of the United States or any state or territory therein.
3. Title to the System and Confidentiality. Title and full ownership rights to the System and all components thereof licensed under this Agreement, including, without limitation, all intellectual property rights therein and thereto, remain with Company. It is agreed that the System Code and the Documentation, are the proprietary, confidential, trade secret properties or copyrighted works of the Company, whether or not any portions thereof are or may be copyrighted and User shall take all reasonable steps necessary to protect the confidential nature thereof. User further agrees that User shall not make any disclosure of any or all System Code (including methods or concepts utilized therein) to anyone. The obligations imposed by this section upon User, User's employees, agents, and contractors, shall survive and continue after any termination of rights under this Agreement. It shall not be a breach of this Agreement if User is required to disclose or make the System Code available to a third party or to a court if the System Code is subpoenaed or otherwise ordered by an administrative agency or court of competent jurisdiction to be produced or disclosed. This Agreement shall not be deemed, interpreted or construed to grant User any rights of ownership or title in the System or any of its components.
4. Security. User, including User's authorized officers, employees, or other agents, shall not reveal the username and password associated with User's Account to any person other than its officers, employees, and other agents. User specifically agrees that it shall be solely responsible for all damages caused or created by the use of the System under the username and password associated with User's Account. User shall immediately notify Company of any unauthorized use of User's Account or any other breach of security pertaining to User's Account known to User.
5. Support. Should the Subscription Plan associated with User's Account include any Support Services, Company shall be obligated to provide such Support Services only during the hours of 9:00 a.m. and 5:00 p.m., Mountain Daylight/Standard Time, excluding all legal holidays observed in the State of Utah.
6. Payment. During the Term of this Agreement, User shall pay the Monthly Fee Amount to Company each month, with the first payment due on the Commencement Date and each subsequent payment due on the monthly anniversary of the Commencement Date, or, in the event that there is no anniversary date in a given month, on the last day of such month. User may elect to prepay at a discounted rate, as delineated in the Service Matrix, which may be amended by Company from time to time without notice. User specifically acknowledges and agrees that the Monthly Fee Amount is subject to change by Company in Company's sole discretion.
7. Taxes. All prices, fees, or other payments under this Agreement are exclusive of all federal, state, municipal, or other government excise, duties, sales, use, occupational, or like taxes now or hereafter in force, and are therefore subject to increase in an amount equal to any tax Company may be required to collect or pay upon licensing or delivery of any items, other than federal, state and local taxes based on Company's income. User also agrees to pay any personal property taxes which accrue to User by reason of this Agreement.
8. Term. The "Term" of this Agreement shall commence upon User's creating an Account by agreeing to the terms and conditions of this Agreement (the "Commencement Date") and shall continue in full force and effect until terminated as provided hereunder. Company may terminate this Agreement at any time upon failure by User (i) to make any payment required under this Agreement within thirty (30) days of its due date, or (ii) to comply with any other term or condition of this Agreement, including without limitation those provisions dealing with Unauthorized Use in Paragraph 2 above. Additionally, either Party may terminate this agreement at any time by notifying the other Party in writing at least sixty (60) days prior to such termination.
9. Rights and Duties Upon Termination. In the event of termination of this Agreement, User shall have no right whatsoever in the System or in any of its components. User shall retain full rights, title, and ownership of User's Website. However, Company shall have no obligation to store, make available, or return to User any file or data associated with User's Website. All fees and charges payable by User to Company under this Agreement, including without limitation any unpaid License Fees, shall become due and payable immediately upon Termination and without notice or demand by Company. All obligations of Company under this Agreement shall end immediately upon termination.
10. Disclaimer of Warranties.
(a) THE SYSTEM AND ALL OF ITS COMPONENTS, INCLUDING WITHOUT LIMITATION ANY SUPPORT SERVICES, ARE PROVIDED ON AN "AS IS" BASIS. COMPANY makes no warrantIES, either express or implied, as to any matter whatsoever, including, without limitation, NON-INFRINGEMENT OF THE RIGHTS OF THIRD PARTIES, AND THE MERCHANTABILITY OR fitness for a particular purpose OF THE SYSTEM OR ANY OF ITS COMPONENTS OR ANY SUPPORT SERVICES PROVIDED HEREUNDER. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY, ITS AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SYSTEM AND ANY SUPPORT SERVICE IS BORNE BY USER.
(b) Company shall not be liable to User with respect to the combination or use of the System with any other software, program or product not furnished by Company, or a modification of the System by anyone other than Company, even if Company consented to the same.
(c) COMPANY SHALL not BE responsible for any liability, claim, loss, damage or expense of any kind (including strict liability in tort) caused by THE USE, POSSESSION OR OPERATION OF the system OR THE DOWNLOAD OF ANY DATA OR FILE THEREFROM.
(d) COMPANY SHALL NOT BE RESPONSIBLE FOR ANY DAMAGE TO OR LOSS OF ANY DATA OR FILES ASSOCIATED WITH USER'S WEBSITE OR USER'S ACCOUNT REGARDLESS OF THE CAUSE OF SUCH DAMAGE OR LOSS, EVEN WHERE SUCH DATA IS OR WAS STORED ON THE SYSTEM.
(e) IN NO EVENT SHALL COMPANY BE LIABLE TO user OR ANY THIRD PARTY FOR SPECIAL, EXEMPLARY, PUNITIVE, consequential, INCIDENTAL OR INDIRECT damages SUCH AS, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS OR REVENUE, ECONOMIC LOSS, LOSS OF DATA, LOSS OR INTERRUPTION OF USE OF THE user's website (WHETHER TEMPORARY OR PERMANENT), COST OF CAPITAL, COST OF SUBSTITUTE OR REPLACEMENT of user's website, DOWN TIME, THE CLAIMS OF THIRD PARTIES AND INJURY TO PROPERTY, REGARDLESS OF THE NATURE OF THE CLAIM OR WHETHER ASSERTED UNDER THEORY OF BREACH OF WARRANTY, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
(f) ANY LIABILITY OF COMPANY OR ITS AFFILIATES OR SUPPLIERS FOR SERVICES PROVIDED UNDER THIS AGREEMENT IS EXPRESSLY LIMITED TO THE FEES PAID BY USER FOR THE USE OF THE SYSTEM. USER'S SOLE REMEDY IN ANY DISPUTE REGARDING THE SYSTEM UNDER THIS AGREEMENT SHALL BE TO SEEK RECOVERY OF THE AMOUNTS PAID HEREUNDER, UPON THE PAYMENT OF WHICH COMPANY AND ITS AFFILIATES OR SUPPLIERS SHALL BE RELEASED FROM AND DISCHARGED OF ALL FURTHER OBLIGATIONS AND LIABILITY TO LICENSEE.
11. Indemnification. User shall indemnify, defend, and hold Company and its officers, directors, agents and employees harmless from and against any and all claims, causes of action, damages, liabilities, costs and expenses including, without limitation, reasonable attorneys' fees, arising out of or related to User's possession, operation, control or use of the System or any component thereof.
12. Representations and Warranties. User represents and warrants that all of the information provided by User to Company in association with this Agreement and the creation of User's Account is accurate and complete and that User has all necessary authority and power to enter into this Agreement and to perform its obligations hereunder. If User is entering into this Agreement on behalf of another Person, User further represents and warrants that User has all requisite power and authority to enter into this Agreement on behalf of such Person.
13. Miscellaneous.
(a) The failure of either Party to take any action under this Agreement, or the waiver of a breach of this Agreement, shall not affect that Party's rights to require performance hereunder or constitute a waiver of any subsequent breach. A waiver to be valid shall be in writing, but need not be supported by consideration.
(b) All notices under this Agreement shall be in writing and shall be deemed given on the earlier of the following: (i) on the date delivered in person; (ii) on the postmark date if sent by first-class mail; or (iii) three (3) business days after delivery to a recognized international express air courier, expenses prepaid. All notices, other than delivery in person, shall be addressed to the last known business addresses of the recipient Party.
(c) Should either Party incur attorneys' fees or costs in order to enforce the terms and conditions of this Agreement, whether or not a legal action is instituted, the Party not in default shall be entitled to recover of such attorneys' fees and costs, in addition to all other rights and remedies either Party may have at law or in equity.
(d) The remedies herein provided shall be deemed the sole and exclusive available remedy(ies) and the parties stipulate and agree that the exclusive remedy(ies) herein provided fully satisfy their essential and intended purposes (more particularly, each Party stipulates and agrees that the exclusive remedy(ies) provided herein will, despite the difficulty inherent in determining actual damages which might be incurred or suffered by a Party, provide legally adequate monetary and other compensation to the non-breaching Party). The specification of remedies herein is intended to exclude any other rights or remedies at law or in equity which may be available.
(e) Company shall not be liable for any delay in performance directly or indirectly resulting from acts of User, its agents, employees, or subcontractors or causes beyond the control of Company. "Causes beyond the control of Company" include, but are not limited to: acts of God; acts of a public enemy; acts of the United States or the District of Columbia, any State or Territory of the United States, or any of their political subdivisions; fire; flood; epidemics; quarantine restrictions; strikes or other labor disputes; civil commotions, or revolutions; freight embargoes; unusually severe weather conditions; or default of Company's subcontractors or suppliers.
(f) The relationship of the Parties shall be solely that of independent contractors. No partnership, joint venture, employment, agency or other relationship is formed, intended or to be inferred under this Software License Agreement. Neither Party to this Agreement shall attempt to bind the other, incur liabilities on behalf of the other, act as agent of the other, or authorize any representation contrary to the foregoing.
(g) This Agreement may not be altered, modified, amended or changed, in whole or in part, except by a writing executed by the parties.
(h) This Agreement shall be governed by the laws of the State of Utah without regard to the choice of law or conflicts of law provisions thereof and User hereby consents to the jurisdiction of the State and Federal courts located in the State of Utah.
(i) This Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either Party, and ambiguities shall not be interpreted against the drafting Party. The headings herein are for reference only and shall not define or limit the provisions hereof.
(j) Company and User acknowledge and agree that this Agreement constitutes the entire agreement between them with respect to the System, and all prior or contemporaneous agreements, whether written or oral, as may relate to the System, are hereby superseded by this Agreement.
(k) If any provision of this Agreement is found to be invalid or unenforceable by a court or tribunal, whether due to particular time limits, unreasonableness or otherwise, it is agreed that the provision in question shall be reduced or otherwise modified by such court or tribunal, but only to the extent necessary to permit its enforcement and only in such court's jurisdiction. If the particular provision cannot be reduced or modified to make it enforceable, that provision shall then be severed from this Agreement and the remaining provisions of this Agreement shall remain in full force and effect giving maximum validity and enforceability to this Agreement.
(l) This Agreement shall be binding upon the parties and their successors, assigns, transferees, grantees, executors and administrators. Without the prior written consent of Company, User may not assign any of its rights under this Agreement or delegate any of its duties.
(m) User acknowledges that before signing or accepting this Agreement, User has carefully read the entire Agreement, User was given an opportunity to discuss it with their legal advisors and with representatives of Company, and User understands the meaning and effect of each and every provision in this Agreement.