WHEREAS, Licensee wishes to license usage of a licensed program and software platform for the purpose of service, sales and marketing to its customers and prospective customers and SNAPCELL desires to license access to this this licensed program and software platform to the licensee. NOW THEREFORE, the parties hereto agree as follows:
1. GRANT OF LICENSE
Subject to the terms and conditions of the Agreement, SNAPCELL grants to Licensee a non-exclusive, non-transferable license (s) to access and use the software platform identified in Exhibit A (the “Licensed Program & Software Platform”) for the purpose of service, sales and marketing to its customers and prospective customers. Licensee may use the Licensed Program & Software Platform of SNAPCELL for its own use.
Licensee may not, however, transfer or sublicense access to the Licensed Program & Software Platform to any third party, in whole or in part, in any form, whether modified or unmodified without the express written consent of SNAPCELL.
2. CONSIDERATION TO SNAPCELL
- Licensee shall pay, upon the set-up and access to the Licensed Program & Software Platform, the license fees set forth in Exhibit A attached hereto.
- License fees do not include any shipping, duties, bank fees, sales, use, excise or similar taxes due. If Licensor is required to pay any such amounts, Licensee shall reimburse Licensor in full.
Licensee may NOT make copies of the Licensed Program & Software Platform and is only allowed to have one user per license. There shall be no permitted sharing of users under one license. Each user shall have their own individual license.
The original Licensed Program and Software Platform is the exclusive property of SNAPCELL.
5. PROPRIETARY RIGHTS
Licensee recognizes that SNAPCELL regards the Licensed Software Program & Platform as its proprietary information and as confidential trade secrets of great value. Licensee agrees not to provide or to otherwise make available in any form the Licensed Program & Software Platform, or any portion thereof, to any person other than employees of Licensee without the prior written consent of SNAPCELL.
Licensee further agrees to treat the Licensed Program and Software Platform with at least the same degree of care with which Licensee treats its own confidential information and in no event with less care than is reasonably required to protect the confidentiality of the Licensed Program and Software Platform.
The license granted hereunder shall continue unless and until terminated pursuant to Section 7 hereof and subject to Licensee’s proper performance of its obligations hereunder.
If the licensee has secured a personal license, the licensee shall provide at least (15) fifteen-days written notice to the Licensor via email to firstname.lastname@example.org. Failure to provide to Licensor with result in the automatic renewal of that license for an additional one month period.
If the Licensee has either a six month or one year contract, the licensee shall provide at least (30) thirty-days written notice to the Licensor via email to email@example.com . Failure to provide to Licensor with result in the automatic renewal of that license for the same contract term that has been originally contracted for by the Licensee.
SNAPCELL may terminate this Agreement if Licensee is in default of any of the terms and conditions of this Agreement and fails to correct such default within ten (10) days after written notice thereof from SNAPCELL.
8. MAINTENANCE SUPPORT
Licensor will provide to Licensee the following support with respect to the Software:
(i) If during the 1st year of this Agreement, Licensee notifies Licensor of a substantial program error respecting the Licensed Program and Software platform, or Licensor has reason to believe that error exists in the Licensed program and Software platform and so notifies Licensee, Licensor shall at its expense verify and attempt to correct such error within thirty (30) working days after the date of notification. If Licensee is not satisfied with the correction, then Licensee may terminate this Agreement, but without refund of any amount paid to Licensor or release of any amounts due Licensor at the time of termination.
(ii) In the case that Licensee has technical questions in the use of the Software during the 1st year of this Agreement, Licensee may submit those questions to Licensor.
(iii) If License desires to continue the Software support specified in this section, Licensee shall pay to Licensor the maintenance fee(s) set forth in Exhibit A.
9. ACCESS TO THE SNAPCELL PLATFORM
Licensor shall use its best efforts to set-up Licensee access to the Licensed software platform promptly after receipt of the purchase order.
10. LICENSEE LIABILITY AND INDEMNITY
Licensee shall be directly responsible to Licensor to review any video footage that is uploaded onto the video platform of SNAPCELL to ensure that the video does not exhibit any material that may be obscene, objectionable, pornographic, or violates any United States patent, copyright or other proprietary right of a third party. Licensee will pay any costs, damages or attorney fees finally awarded against Licensor in such action which are attributable to such claim, provided Licensee is promptly notified in writing of such claim, and may control the defense and/or settlement of such claim, and is provided with all requested assistance, information and authority.
11. WARRANTY DISCLAIMER
SNAPCELL licenses, and Licensee accepts, the licensed programs “AS IS.” SNAPCELL PROVIDES NO WARRANTIES AS TO THE FUNCTION OR USE OF THE LICENSED PROGRAM, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE LICENSED PROGRAM IS WITH LICENSEE. LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE LICENSED PROGRAMS WILL MEET LICENSEE’S REQUIREMENTS OR THAT THE OPERATION OF THE LICENSED PROGRAMS WILL BE UNINTERRUPTED OR ERROR FREE.
12. PATENT AND COPYRIGHT INDEMNITY
SNAPCELL will defend at its own expense any action brought against Licensee to the extent it is based on a claim that the Licensed Program used within the scope of the license granted hereunder infringes a United States patent, copyright or other proprietary right of a third party. SNAPCELL will pay any costs, damages or attorney fees finally awarded against Licensee in such action which are attributable to such claim, provided SNAPCELL is promptly notified in writing of such claim, may control the defense and/or settlement of such claim, and is provided with all requested assistance, information and authority. In the event that a Licensed Program becomes, or in SNAPCELL’s opinion is likely to become, the subject of a claim of infringement of a United States patent, copyright or trade secret, SNAPCELL may at its option either secure Licensee’s right to continue using the Licensed Program, replace or modify the Licensed Program to make them not infringing, or provide Licensee with a refund of the license fee .
SNAPCELL shall have no liability for any claim of patent, copyright or trade secret infringement based on the use of their Licensed software platform in any form other than the original, unmodified form provided to Licensee with hardware, software or data not supplied by SNAPCELL in their original, unmodified form would not constitute an infringement. The foregoing states Licensee’s entire liability for infringement or claims of infringement of patents, copyrights or other intellectual property right.
13. LIMITATION OF LIABILITY
SNAPCELL LIABILITY TO LICENSEE UNDER ANY PROVISIONS OF THIS AGREEMENT FOR DAMAGES FINALLY AWARDED SHALL BE LIMITED TO THE AMOUNTS ACTUALLY PAID HEREUNDER BY LICENSEE TO SNAPCELL. IN NO EVENT SHALL SNAPCELL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF USE, LOSS OF PROFITS OR INTERRUPTION OF BUSINESS, HOWEVER CAUSED OR ON ANY THEORY OF LIABILITY.
All notices in connection with this Agreement shall be in writing and may be given by certified, registered, or first class mail or personally delivered at the address set forth on the front page. For purposes of this Agreement, a notice shall be deemed effective upon personal delivery to the party or if by mail five days after proper deposit in a mail box.
This Agreement will be binding upon and will inure to the benefit of the parties hereto and their respective representatives, successors and assigns except as otherwise provided herein.
In the event any provision of this Agreement is determined to be invalid or unenforceable, the remainder of this Agreement shall remain in force as if such provision were not a part.
17. GOVERNING LAW/FORUM
This Agreement shall be exclusively governed and interpreted by the laws of the State of Florida. Broward County, Florida shall be the appropriate venue and jurisdiction for the resolution of any disputes hereunder. Both parties hereby consent to such personal and exclusive jurisdiction. The prevailing party to any lawsuit under this agreement shall be entitled to the reimbursement of attorney’s fees and costs.
This Agreement and the licenses granted by it may not be assigned, sublicensed, or otherwise transferred by Licensee without the prior written consent of SNAPCELL.
19. ENTIRE AGREEMENT
This Agreement sets forth the entire understanding between the parties with respect to the subject matter hereof, and merges and supersedes all prior agreements, discussions and understandings, express or implied, concerning such matters. This Agreement shall take precedence over any additional or conflicting terms which may be contained in Licensee’s purchase order or SNAPCELL’s order acknowledgment forms.