SOFTWARE LICENSE AGREEMENT
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (“LICENSE”) CAREFULLY BEFORE USING THE SOFTWARE. BY USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE THE SOFTWARE.
WHEREAS, Graphly develops, maintains and licenses access to a Web-based sales and marketing automation software solution for businesses, marketers and entrepreneurs; and
WHEREAS, customer wishes to use the Graphly application and obtain such related services, and Graphly desires to provide such services to customer; and
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.1 Definitions. For purposes of this Agreement, the definitions set forth below shall be applicable:
All Graphly affiliate information, including address, phone number, e-mail address, and Social Security or Tax ID Number is confidential. This information is collected for the purposes of:
“Authorized User” means an individual who is an employee or contractor of customer who is acting within the scope of a formal employment or agency relationship and who agrees to be bound by the terms of this Agreement.
“Front End Code” means the user interface display and usability platform. This includes, but is not limited to, the layout, color scheme, HTML pages and source code, etc.
“Back End Code” means the Graphly application-specific source code. This includes, but is not limited to, the database schema, field definitions, table relationships, marketing automation, workflow management, application methodology and interface coding, etc.
2.1 GRANT OF LICENSE. SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, Graphly HEREBY GRANTS TO CUSTOMER AND CUSTOMER HEREBY ACCEPTS A NONEXCLUSIVE, NONTRANSFERABLE LICENSE TO ESTABLISH ONLINE ACCESS TO THE Graphly APPLICATION SOFTWARE TO PERFORM CONTACT MANAGEMENT, AUTOMATED MARKETING, LEAD TRACKING AND OTHER RELATED BUSINESS FUNCTIONS THAT THE SOFTWARE IS DESIGNED TO PERFORM.
2.2 Title. Graphly shall retain all right, title and interest (including all copyrights, patents, service marks, trademarks and other intellectual property rights) in and to the Graphly application, including any and all updates, enhancements, customizations, revisions, modifications, future releases and any other changes thereto, and all related information, material and documentation, etc. Except for the license granted pursuant to this Agreement, customer shall not acquire any interest in the Graphly application software or any other services or materials, or any copies or portions thereof, provided by Graphly pursuant to this Agreement.
2.3 Customer Ownership of prospect, customer and employee data. Any company-specific data provided to Graphly hereunder, either in hard copy or electronic format, is and shall remain the customer’s property.
2.4 Graphly intellectual property ownership and restrictions to product use. Graphly shall retain all rights to proprietary application development, business and technical methodologies, implementation, business processes and all other aspects of Graphly business, application(s) and services. Under no circumstances will the customer be permitted to use any Front End Code to their advantage (or) the advantage of their partner companies (or) potential partner companies outside of the intended design and implementation for which the original service subscription agreement was executed. The technology and business methodologies are proprietary and the sole property of Graphly. Any technology or business replication of any aspect of the application or services provided used for the gain of the customer or above-mentioned business partners or for the use of any level of a competitive nature regarding these proprietary elements is strictly prohibited.
2.5 Usage Thresholds. Customer agrees to the following thresholds, see pricing
3.1 Fees. In consideration of the license granted pursuant to Section 2.1, and for the services, customer shall pay Graphly the fees as specified on the customer’s original Subscription Agreement (the “Fees”). Graphly shall invoice customer on a prepaid monthly basis for monthly membership charges. All charges for Fees shall be due and payable to Graphly within ten days (10) of the date of each invoice (credit card charges will be in the name of “Graphly” or “Marketing Mavens”). Any charges not paid when due are subject to interest at a rate equal to the lesser of: (i) one and one-half percent (1.5%) per month; or (ii) the maximum interest rate allowed by applicable law.
4.1 Confidentiality. Each party agrees that the company-associated data (referred to herein as the “Customer Confidential Information”) and any and all materials, documentation and information pertaining to the Graphly application software and the services (referred to herein collectively as the “Graphly Confidential Information”) is the confidential property of customer and Graphly, respectively (Customer Confidential Information and Graphly Confidential Information referred to hereinafter collectively as the “Confidential Information”). The party receiving the Confidential Information, including such party’s employees, officers, directors and agents (collectively, the “Receiving Party”), shall hold in confidence all Confidential Information and shall not disclose or distribute Confidential Information, or any portion thereof, in any form or format to any person except on a strict “need to know” basis for the purpose of performance of this Agreement, or as required by valid legal process. Customer agrees it shall not copy, alter, decompile, disassemble, reverse engineer or otherwise modify (except with Graphly’s prior written consent) or directly or indirectly disclose any Graphly Confidential Information. Confidential Information under this Section 4 shall not include information that: (i) is or has become publicly available without restriction through no fault of the receiving party; or (ii) has been received without restriction from a third party lawfully in possession of such information.
4.2 Cardholder Data Retention Policy. Customer agrees that all credit card information will be stored the minimum amount of time according to that which is required for business, legal and/or regulatory purposes.
TERM & TERMINATION
6.1 DISCLAIMER OF WARRANTIES. THIS AGREEMENT IS AN AGREEMENT FOR SERVICES. NOTWITHSTANDING THE FOREGOING, Graphly SPECIFICALLY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE Graphly APPLICATION SOFTWARE AND SERVICES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, NO INFRINGEMENT, UNINTERRUPTED SERVICE OR FITNESS FOR A PARTICULAR PURPOSE.
6.2 LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF BUSINESS OR OTHER LOSS ARISING OUT OF OR RESULTING FROM THIS AGREEMENT EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY REGARDLESS OF THE NEGLIGENCE OR OTHER FAULT OF THE PARTY AND REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LEGAL LIABILITY. Notwithstanding the foregoing, in no event shall Graphly’s cumulative liability under this Agreement exceed the amount actually paid by customer to Graphly in the immediately preceding six- (6-) month period.
6.3 Customer Warranty. Customer represents and warrants that it shall, at all times, comply with, and shall remain solely responsible for compliance with, all applicable federal, state and local laws and regulations. Customer shall indemnify and hold Graphly harmless from and against any and all damages, costs, losses, claims, causes of action and lawsuits and expenses, including reasonable attorneys’ fees, relating to breach of the aforementioned representation and warranty. Customer represents and warrants that it shall fully comply with the Graphly Acceptable Use Policy, which is incorporated herein by reference.
7.1 ASSIGNMENT OF AGREEMENT. CUSTOMER SHALL NOT ASSIGN ITS RIGHTS OR DUTIES UNDER THIS AGREEMENT WITHOUT THE PRIOR WRITTEN CONSENT OF Graphly. THIS AGREEMENT SHALL INURE TO THE BENEFIT OF THE AUTHORIZED SUCCESSORS AND ASSIGNS OF THE PARTIES.
7.2 Independent Contractor. Graphly is an independent contractor, and this Agreement does not in any way create the relationship of principal and agent, franchisee, joint venture or partnership between the parties. Neither party shall be liable for any debts or obligations of the other.
7.3 Entire Agreement; Precedence. This Agreement and Exhibit(s) (which may be attached hereto and incorporated herein by reference) contain the entire understanding between the parties and supersede any prior verbal or written agreement between the parties with respect to the subject matter hereof. No amendment or modification of the Agreement shall be valid, unless made in writing and signed by both parties hereto. In the event of any inconsistency or conflict between the terms and conditions of this Agreement and any term or condition of any Exhibit hereto, the terms and conditions of this Agreement shall, in all instances, govern and control.
7.4 Governing Law. This Agreement shall be governed by the laws of the State of Arizona without giving effect to conflict of laws principles.
7.5 Arbitration. Any and all disputes, controversies and claims arising out of or relating to this Agreement or concerning the respective rights or obligations of the parties hereto shall be settled and determined by arbitration before a panel of one (1) arbitrator pursuant to the Commercial Rules of the American Arbitration Association then in effect. The foregoing notwithstanding, each party shall have no more than three (3) days to present its case to the arbitrator. Judgment upon the award rendered may be entered in any court having jurisdiction or application may be made to such court for a judicial acceptance of the award and an order of enforcement. The parties agree that the arbitrators shall have the power to award damages, injunctive relief and reasonable attorneys’ fees and expenses to any prevailing party in such arbitration.
7.6 Force Majeure. Neither party hereto shall be in default hereunder by reason of its delay or failure to perform any of its obligations hereunder for any event, circumstance or cause beyond its control such as, but not limited to, acts of God, strikes, lockouts, general governmental orders or restrictions, war, threat of war, hostilities, revolution, acts of terrorism, riots, epidemics, fire, earthquake or flood. The performance of this Agreement shall then be suspended for as long as any such event shall prevent the affected party from performing its obligations under this Agreement.
7.7 Invalidity; Waivers. If any provision or portion of this Agreement is held invalid, illegal, void or unenforceable as it appears in this Agreement by reason of any rule of law, administrative or judicial provision or public policy, then such provision shall be construed as being enforceable to the extent such rule of law, administrative or judicial provision or public policy allows. All other provisions of this Agreement shall nevertheless remain in full force and effect. Neither of the parties shall be deemed to have waived any of its rights, powers or remedies hereunder unless the waiving party expresses such a waiver in writing.
7.8 Survival of Terms. Notwithstanding the expiration or earlier termination of this Agreement for any reason, the provisions of Articles 4, 6, 7 and Sections 2.2 and 2.3 of this Agreement shall remain in full force and effect.
7.9 HEADINGS; COUNTERPARTS. PARAGRAPH HEADINGS USED HEREIN ARE FOR CONVENIENCE PURPOSES ONLY AND ARE NOT INTENDED TO BE, NOR SHALL THEY BE, USED AS AN AID IN INTERPRETATION. THIS AGREEMENT MAY BE SIGNED IN COUNTERPARTS.