THIS LICENSE AGREEMENT IS A LEGAL AGREEMENT between you the end user and the company for whom you work (collectively, the “Licensee”), and NINE10 INCORPORATED, an Alberta corporation (the “Licensor”), having an office at Suite 305, 10014-99 Street, Grande Prairie, Alberta, T8V 3N4. As used in this Agreement, “Software” means, collectively, any and all applications and modules of Licensor, including without limitation WEBADMIN, FLAUNTOMATIC, SIMPLE WEBSITES, MLS ENGINE FOR FLAUNTOMATIC, MLS ENGINE FOR WORDPRESS, and systems, together with any and all enhancements, upgrades, and updates thereto that may be provided to Licensee in the future by Licensor. If Licensee has a separate license agreement for the use of the Software, if and to the extent of any conflict between that agreement and this Agreement, the terms of the separate written agreement shall prevail.
ENTERING INTO A PROJECT WITH LICENSOR OR USING ANY OF THE SOFTWARE PROVIDED BY LICENSOR INDICATES YOUR ACCEPTANCE OF AND AGREEMENT TO THESE TERMS, AND INDICATES ACCEPTANCE OF THIS AGREEMENT AND TERMS BY THE COMPANY FOR WHICH YOU WORK. IF YOU OR YOUR COMPANY DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU SHOULD IMMEDIATELY DISCONTINUE USING THE SOFTWARE. LICENSOR STRONGLY URGES YOU TO CONSULT YOUR ATTORNEY TO UNDERSTAND WHETHER ANOTHER AGREEMENT EXISTS AND TO UNDERSTAND YOUR RIGHTS AND RESPONSIBILITIES WITH RESPECT TO THIS AGREEMENT BEFORE USING THIS SOFTWARE. IF BUT ONLY TO THE EXTENT NO OTHER AGREEMENT IS APPLICABLE, LICENSOR IS MAKING USE OF THE SOFTWARE AVAILABLE IN STRICT RELIANCE ON YOUR AND YOUR COMPANY’S AGREEMENT TO BE BOUND BY THIS AGREEMENT.
In this Agreement, Licensor is licensing its web-based software application products on a non-exclusive basis for use only on a web server hosted and controlled by Licensor. Licensor is at all times the owner of the Software and, except as specifically licensed hereby and to third parties pursuant to non-exclusive license agreements, Licensor retains all rights to the Software. Rights not specifically granted in this Agreement, including without limitation Federal and International Copyrights, are expressly reserved by Licensor.
Licensee will never receive a copy of the Software. Because some of the Software is in a decompiled, human-perceivable form, Licensor will NEVER release the software code for any of the Software to Licensee. The license granted herein is entirely contingent upon Licensor hosting the Software and NEVER releasing any copies of the Software, which means that Licensee will never host the Software itself and may never install the Software on any if its computers. Licensee, however, owns and has exclusive rights to all data entered into the program’s database via the Software, and to all graphics and web page content given to Licensor to place into the Software, on behalf of Licensee. In no event does the License or this Agreement entitle Licensee to any rights of ownership in any of the work flow design, process flow design, or the code in the underlying page, program, database, software, or ANY other code used to draw or render the elements on the web page, all of which is owned by Licensor. It is the sole responsibility of Licensee to backup their data.
If Licensee decides NOT to renew this License after the term of this Agreement, or if this Agreement is terminated for any reason, Licensee will NOT receive a copy of the Software. In such circumstances, so long as Licensee is not in default of its obligations under this Agreement and/or any other agreement with Licensor, Licensee may receive a copy of all data owned by Licensee that has been entered into the respective product’s databases in a standard machine readable format. Licensor reserves the right to charge a service fee for extraction of data owned by Licensee.
Licensor grants to Licensee, and by your use of the Software Licensee accepts, pursuant and subject to the terms and conditions of this Agreement, a limited, nonexclusive, non-transferable, non-assignable, revocable right to use the Software (“License”), solely and strictly in accordance with the terms, conditions and restrictions applicable to the License, as described herein. Unless otherwise agreed by Licensor and Licensee in writing (including electronically), the term of the License shall be one month, subject to extension pursuant to mutual agreement of Licensor and Licensee.
During the term of the License, Licensor shall host the servers needed for Licensee’s use of the Software. This Agreement includes all future bug fixes, error corrections, new releases, updates and program improvements to the Software during the term of the License. Any other services to be provided by Licensor, such as customizations or program modifications and additions, shall be pursuant to separate written agreement of the parties, but otherwise on the terms of this Agreement.
Licensor shall not disclose any Confidential Information (defined below) of Licensee that Licensor has been or hereafter becomes privy to by hosting data that is the property of the Licensee. Licensee shall take all reasonable steps to protect the Software and related documentation from unauthorized copying or use. The Software source code represents and embodies the trade secrets of Licensor and/or its licensors. The Software source code, pricing, interfaces, data mappings, and embodied trade secrets are NOT licensed to Licensee, and Licensee shall take all reasonable measures to avoid any unauthorized disclosure of the same.
Licensee and Licensor each agrees (a) that it will not disclose to any third party or use any Confidential Information disclosed to it by the other except as necessary to perform its obligations under written agreement with the disclosing party or otherwise as expressly permitted in this Agreement or other written agreement between Licensor and Licensee, and (b) that it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than highest degree of care it uses to maintain the confidentiality of its own information of similar importance. For the purposes of this Agreement, “Confidential Information” means information about the disclosing party’s business or activities that is proprietary and confidential, which shall include all business, financial, technical and other information of a party (I) disclosed in writing and either (a) is marked or designated by such party as “confidential” or “proprietary” or (b) by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as confidential, or (II) which is disclosed orally and either (a) is identified as confidential at the time of disclosure or (b) within 5 days of such disclosure, is summarized in a written memorandum identifying the disclosure as confidential. In any event, all data supplied by Licensee to Licensor for import into the Software shall be Confidential Information. Confidential Information will not include information that (a) is in or enters the public domain without breach of this Agreement, (b) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation, (c) the receiving party knew prior to receiving such information from the disclosing party, or (d) the receiving party develops independently of any information originating from the disclosing party. Upon expiration or termination of this Agreement, each party will: (a) immediately cease all use of the other party’s Confidential Information; and (b) within ten calendar days after such expiration or termination, certify in writing to the other party that it has permanently erased from computer memory, destroyed or returned to the other party the other party’s Confidential Information, as well as any copies thereof on any media or in any form.
Licensor warrants that it owns or has obtained all proprietary and intellectual property rights necessary to grant the License herein and shall indemnify and hold harmless Licensee from any and all claims, demands, and causes of action asserted by third parties alleging that Licensee’s use of the Software as contemplated herein violates such third party’s proprietary or intellectual property rights.
Licensee shall comply with all applicable laws, rules and regulations in its use of the Software (and any other software or hardware of Licensor). Licensee agrees to indemnify Licensor and its owners, officers, employees, representatives, agents, licensors, successors and assigns (collectively, the “Licensor Parties”), and hold Licensor each of the other Licensor Parties harmless, from and against any and all claims, damages, charges, costs, expenses, causes of action, liabilities and other obligations resulting from Licensee’s failure to so comply.
Licensee shall send emails on an “Opt-In” basis only; no email sends shall be made unless they are “Opt-In” and are in compliance with all applicable laws. Licensor strongly urges Licensee to send to double Opt-In lists only. In no event shall any Software be used to send SPAM. As used herein, “Spam” shall mean (a) unsolicited commercial email sent to a recipient who has not provided his/her/its email address directly to the sender or sent to a recipient who would not have a reasonable expectation of receiving email from the sender, or (b) any email advertising illicit or illegal activities, or (c) any electronic message sent to email addresses provided by a third party. Licensee agrees that its data and lists loaded into the Software will not be used to send Spam, or otherwise constitute Spam, and that all emails sent by or on behalf of Licensee will comply with all applicable laws, and the Acceptable Use Policies of Licensor’s hosting and bandwidth providers. Licensee accepts any and all liability for, and agrees to indemnify and hold harmless Licensor and the other Licensor Parties from and against, any and all costs, expenses, liabilities, damages and other obligations in connection with any and all complaints, fines, cleaning of IP addresses and/or other services required as a result of supplying Licensor with addresses and/or sending electronic mail that do not comply with the foregoing.
All emails built and/or sent by or on behalf of Licensee using the Software must use a built-in unsubscribe link. Clicking unsubscribe links in the Software will flag an email address of a contact in Licensee’s database as an “Opt-Out” and prevent sending of email to that contact email address in the future. Licensee shall remove all contacts that have elected to unsubscribe within 48 hours of receipt of the written request.
In the event Licensee fails to make any payment when due hereunder, Licensor shall give Licensee notice of such failure. If such payment is not received by Licensor within five (5) days after such notice is provided by Licensor, Licensor may immediately either (a) terminate the License and this Agreement without further notice, or (b) suspend the License and performance of services under this Agreement. In the event of a suspension, the License and this Agreement and any agreed upon services will be restored upon Licensor’s receipt of payment in full hereunder plus a late fee of ten percent (10%) of the amount of the late payment.
Other than Licensee’s payment default, in the event that either party believes the other has failed to substantially perform in accordance with the terms of the Agreement, the non-defaulting party shall submit written notice via certified mail to the defaulting party describing in detail the alleged deficiencies by the defaulting party. The defaulting party shall have 15 days from the date notice was received to cure such deficiencies. If the deficiencies remain uncured after such 15 day period, the non-defaulting party may terminate this Agreement.
In the event of any suspension or termination, Licensor shall have no liability whatsoever to the Licensee for delay or damage caused the Licensee due to such suspension or termination. Any notices to be delivered to Licensor hereunder shall be sent to the address of Licensor set forth above. Any notices to be delivered to Licensee hereunder shall be sent to the address last known by Licensor for Licensee. Upon termination of the License and/or this Agreement, the terms, rights and obligations under this Agreement which by their nature should survive termination shall survive (such as, without limitation, Sections 1, 3 through 5, 9 through 11 and 13).
This Agreement shall be governed by the laws of the Province of Alberta.
Licensee shall have no right whatsoever to transfer or assign this Agreement or the License. Licensor shall not assign this Agreement without the written consent of Licensee. Subject to the foregoing, this Agreement shall be binding on the heirs, executors, administrators successors and assigns of the respective parties.
Licensee acknowledges and agrees that Licensor has invested substantial time, money and other resources in building its professional staff. This staff constitutes a substantial company resource and valuable asset of Licensor. In recognition of this fact, in the event Licensee hires an employee of Licensor during the term of this Agreement or within one year after termination of this Agreement, Licensee agrees to and shall pay to Licensor a fee in an amount equal to 30% of such new hire’s first year salary, plus anticipated commissions and bonuses for the first year. This fee shall be payable immediately upon hire of the individual.
This Agreement represents the entire and integrated agreement between Licensee and Licensor, and supersedes all prior negotiations and/or representations; provided, however, that in the event Licensor and Licensee have entered into a separate written agreement which specifically provides that it supersedes this Agreement, such other agreement shall prevail if and to the extent of any inconsistencies between the two agreements. Further, in the event that the effective dates of any other applicable agreement have lapsed without extension, renewal or replacement, this Agreement becomes the definitive agreement for Licensee’s use of the Software. This Agreement may be amended or superseded only by written instrument signed by both the Licensee and the Licensor.
In no event will Licensor or any of the other Licensor Parties be liable to Licensee for any consequential, indirect, special, incidental or consequential damages (including damages for loss of business profits, business interruption, loss of business information, and the like) arising out of the use or inability to use the Software, or based on breach of contract, tort (including negligence), product liability or otherwise, even if Licensor or any of the other Licensor Parties have been advised of the possibility of such damages and even if a remedy set forth herein is found to have failed of its essential purpose.
Except with respect to its obligations pursuant to Section 4 above, the liability of Licensor or any other Licensor Party to Licensee for actual damages from any cause whatsoever, and regardless of the form of the action (whether in contract, tort including negligence, product liability or otherwise), shall in no event exceed $100.
Licensor makes no representations or warranties, express or implied, including without limitation the fitness for a particular purpose, regarding the Software or any services provided by Licensor. Licensor does not warrant, guarantee or make any representations regarding the use or the results of the use of the Software in terms of its correctness, accuracy, reliability, currentness or otherwise. The entire risk as to the results and performance of the Software is assumed by Licensee.
Nothing contained in this Agreement shall create a contractual relationship with, or a cause of action in favor of, a third party against either the Licensee or Licensor.