ACTIVE8 TERMS AND CONDITIONS
Active8 Software LLC (Active8) has developed a software application, offered as a Service under these Terms and Conditions and any associated Contract, and as defined below and described in more detail in Exhibits A, B, and C.
Licensee agrees that use of any Active8 or third party features, services, or content as may be supplied by Active8, either in or accessible through the Service shall be subject to any applicable Active8 terms and conditions.
Licensee agrees to use the Service solely for the Purpose in accordance with the following terms and conditions:
1.1 Agreement means these terms and conditions and any additional terms set forth and signed between the parties, including those in an associated Contract.
1.2 Confidential Information means any information of a Party (including Licensee Content and Registration Data) that is designated as confidential or proprietary at the time of disclosure, or would be reasonably considered as confidential due to its nature or circumstance of disclosure.
1.3 Contract means a signed document between the parties that identifies the Term of the Agreement, as well as other specific terms and conditions, and incorporates the terms and conditions contained herein by reference.
1.3 Active8 Content means any messages or other communications or other information, data, text (including but not limited to names of files, databases, directories and groups/workgroups of the same), software, music, sound, photographs, graphics and video transmitted, entered, or stored by Active8, into and as part of the Service.
1.4 Licensee Content means all Licensee and User information or data that is input or uploaded by or on behalf of Licensee and/or Users into the Service, and shall include any messages or files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through the Service, including, without limitation, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips email or other messages, metatags, domain names, software and text or other communications or other information, data, text (including but not limited to names of files, databases, directories and groups/workgroups of the same), software, sound, photographs, graphics and video transmitted, entered, or stored by any User or any other Licensee employee, contractor, assigns or representative using the Service.
1.5 Registration Data means the information provided by an authorized Licensee representative on any associated online Service registration form(s).
1.6 Seat means the license for a User or license for a Location, based upon the specified fee structure, to have access to the Service on a monthly basis in accordance with the terms of the Agreement and subject to Licensee’s payment of the applicable Fees.
1.7 Service means the Active8 product or application, including any modifications or updates thereto if and as made generally available by Active8, and as described in more detail in Exhibit A.
1.8 “SLA” has the meaning set forth in Section 2.5 below.
1.9 “SLA Default” has the meaning set forth in the SLA.
1.10 “Technical Support” has the meaning set forth in Section 2.3.2 below.
1.11 User means those individual employees or contractors of Licensee, whom Licensee shall allow to use the Service in accordance with the Agreement.
2. License Grant; Active8 Obligations; Restrictions
2.1 License Grant by Active8.
(a) Subject to the terms of the Agreement and Licensee’s payment of the applicable Fees (including the required Fees Seat), Active8 grants Licensee a limited, non-exclusive, non-transferable, revocable license during the Term to access and use (and to permit its Users to access and use, subject to the number of Seats for which Licensee has paid the required Fees) the Service for Licensee’s own business purposes, but not otherwise, and solely for use within the United States, subject to the terms and conditions of the Agreement and in accordance with the pricing and payment terms set forth below. In addition, except as otherwise expressly agreed to in writing by Active8, the foregoing license is limited solely to use by the number of Seats for which Licensee has paid the applicable Fees stated below.
(b) Licensee hereby assumes full responsibility for all use by the Users and shall be solely responsible for ensuring that the Users comply with the terms of the Agreement, including but not limited to the confidentiality and scope of use obligations and the license grant restrictions set forth below.
(c) All rights not expressly granted to Licensee herein are reserved by Active8 and its licensors. Licensee agrees that the Services, including related materials or documentation, and any other information identified by Active8 as confidential or proprietary are "Active8 Confidential Information."
2.2 License Grant by Licensee. Licensee grants to Active8, and Active8 accepts from Licensee, a limited, non-transferable, non-exclusive, worldwide and royalty free license, for the term of the Agreement, to access, store, copy, display, use and transmit on and via the Internet and the Service the Licensee Content.
2.3 Active8 Obligations.
2.3.1 Hosted Service. Active8 will make available to Licensee, or shall engage a third party to make available to Licensee on Active8’s behalf, hosted access to the Service. The Service shall be installed and hosted at Active8’s data centers(s) and/or at such third party data center(s), as Active8 may elect from time to time, and the Service shall be made available through the Internet for use by Licensee in accordance with the terms of the Agreement. Active8 shall be responsible, at its expense, for procuring and maintaining such data center, or such third party hosting services during the Term.
2.3.2 Technical Support. During the Term, any reasonable technical support that may be provided by Active8 shall be as described in the SLA (“Technical Support”) and subject to Licensee’s payment of the applicable Fees.
2.3.3 Communications Choices. Active8 may be required by law to send Licensee communications about the Service or third party products. Licensee agrees that Active8 may send such communications to Licensee via email.
2.4 Restrictions. Licensee agrees (on behalf of itself and its Users) not to disclose to, sell to, make any copies of, resell, rent or sublicense (including offering the Service to third parties on an applications service provider or time-sharing basis), lease, loan, redistribute, or create a derivative work of any portion of the Service, use of the Service, or access to the Service, or allow any third party to access or use the Service in whole or in part, except as expressly allowed under the terms of the Agreement. The Agreement does not authorize Licensee to make any modifications to or adaptations of any part or whole of the Service and any such modification or adaptation is expressly prohibited. Licensee agrees not to decompile, disassemble, or otherwise reverse engineer the Service. Such restrictions do not apply to Licensee Content placed on the Service, if any. Licensee agrees not to access the Service by any means other than through the interface that is provided by Active8 for use in accessing the Service, and further agrees not to send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts agents, or programs, on the Service. Licensee may not access or use the Service for purposes of monitoring Service availability, Service performance or functionality, or for any benchmarking, or competitive purpose.
2.5 Service Level Agreement. All matters concerning availability of the Service, data backup, Technical Support and related concepts are addressed in the Service Level Agreement (“SLA”) set forth under Exhibit B. The SLA shall govern the Service. To the extent, if any, that Active8 commits a SLA Default (as defined in the SLA), then Licensee shall be entitled to exercise its termination right pursuant to Section 12.2.2(b) below.
3. Licensee Obligations.
3.1 Compliance with Law. Licensee is responsible for all activities conducted within User accounts in use of the Service. Licensee shall comply with all applicable local, state, federal and regional or other laws and regulations applicable in connection with use of the Service, including all those related to data privacy and the transmission of technical or personal data. Licensee shall ensure that all Licensee Content does not violate any laws or regulations or infringe any intellectual property, privacy, publicity or other proprietary right of any person.
3.2 Registration. Licensee agrees to (i) provide true, accurate, current and complete Registration Data, as applicable, and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If Licensee provides any information that is untrue, inaccurate, not current or incomplete, or Active8 has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Active8 may suspend or terminate Licensee’s account and refuse any and all current or future use of the Service (or any portion thereof).
3.3 Password(s). Licensee agrees it and its Users shall securely manage its password(s) for access to the Service. Licensee agrees it shall notify Active8 immediately in the event of any unauthorized access or use of the Service, or of any password or account, or any other known or suspected breach of security in connection with the Service.
3.4 Copies; Distribution. Licensee agrees it shall (i) notify Active8 immediately in the event of any known or suspected attempt to copy or distribute the Service, and (ii) use reasonable efforts to stop such attempted copying or distribution.
3.5 False Information. Licensee agrees (i) it shall not, and shall cause its employees and contractors to not, impersonate any other User of the Service or provide false identity information in order to gain access to or to use the Service; and (ii) in the event that Licensee becomes aware of or suspects such impersonation or use of false information to gain access to or use the Service, Licensee (a) shall immediately notify Active8 of such actions and (b) shall use reasonable efforts to stop such improper access to or use of the Service.
3.6 Updates. Active8 may update the Service periodically with tools, utilities, improvements, third party applications, or general updates to improve and enhance the features and performance of the Service. Licensee agrees to receive such updates automatically as part of the Service.
4.1 All Active8 Confidential Information, the Service, and any materials furnished to Licensee by Active8 and any information or materials which are designated in writing to be the property of Active8 shall remain the sole property of Active8. Any information related to Active8, or its business activities (including, but not limited to, all pricing, rates, fee schedules and Active8 Content, if any), that is made available to, received, observed or otherwise obtained by Licensee in connection with the Agreement shall be treated by Licensee as Active8 Confidential Information and shall not be used, disclosed or further disseminated by Licensee. Licensee agrees that any unauthorized disclosure of the Active8 Confidential Information would cause irreparable harm to Active8, and that in the event of any breach or threatened breach of the confidentiality obligations, Active8 shall be entitled to seek equitable relief in addition to any other remedy.
4.2 To the extent that Licensee provides any information to Active8, arising from Licensee’s use of the Service, Licensee warrants that (i) Licensee is providing only Licensee's own information or the information of others which Licensee is authorized to provide on their behalf to third parties; and (ii) the use of such information by Active8 will not infringe or misappropriate the intellectual property rights or otherwise violate the rights of any third parties.
4.3 Confidential Information shall not include, or shall cease to include, as applicable, information or materials that (i) were generally known to the public on the execution date of the Agreement; (ii) become generally known to the public after the execution date, other than as a result of the act or omission of the receiving party; (iii) were rightfully known to the receiving party prior to its receipt thereof from the disclosing party; (iv) the receiving party lawfully received from a third party without that third party’s breach of agreement or obligation of trust; or (v) are independently developed by the receiving party.
4.4 Either Party may disclose or report Confidential Information in limited circumstances where such Party believes, in good faith, that disclosure is required under the law. For example, Active8 may be required to disclose Confidential Information to cooperate with regulators or law enforcement authorities, to comply with a legal process such as a court order, subpoena, search warrant, or a law enforcement request.
4.5 Screening, Removal & Risk of Licensee Content.
4.5.1 Active8 does not pre-screen Licensee Content, but Active8 and its designees, contractors or subsidiaries shall have the right (but not the obligation) in their sole discretion to refuse or to remove any Licensee Content that is available via the Service. Without limiting the foregoing, and without notice, Active8 and its designees shall have the right to remove any Content that is deemed objectionable by Active8 in its sole discretion. Unless the Licensee Content is illegal material or represents, in Active8’s reasonable discretion, inappropriate or objectionable content, Active8 will make commercially reasonable efforts to notify Licensee prior to such removal. Any Licensee Content removed under this Section 4 will be stored by Active8 for a reasonable period of time and Active8 will provide Licensee with prompt notice of such removal and the reasons therefore.
4.5.2 Licensee shall evaluate and bear all risks associated with the use of any Licensee Content including any reliance on the accuracy, completeness, or usefulness of such Licensee Content.
5. Intellectual Property Ownership.
5.1 The Service. Active8 owns all right, title and interest, including all intellectual property rights, in and to the Service and its technology. Licensee acknowledges and agrees that Licensee may be providing and submitting feedback, suggestions and ideas ("Feedback") relating to the features and functionality of the Service to Active8 which Active8 may use in future modifications and/or subsequent versions of the Service, if any, multimedia works and/or advertising and promotional materials relating thereto. Licensee hereby assigns to Active8 a perpetual, worldwide, fully transferable, sub-licensable, non-revocable, fully paid-up, royalty free license to use, modify, create derivative works from, distribute, display and otherwise exploit any information it provides to Active8 in the Feedback. Notwithstanding the foregoing sentence, the parties agree that nothing in the Agreement is intended to assign or transfer to a party, nor will have the effect of assigning or transferring to a party, any Licensee Confidential Information, any right to any existing copyright, patent, trade secret, moral right, or any other existing intellectual property right of the other party.
5.2 Active8 Name and Logo. Active8’s name and logo and all Active8 product and services names, including the name of the Service and any product or service associated with it, are trademarks of Active8 or its licensors, and no right or license to use such materials is granted in the Agreement.
5.3 Active8 Content. Licensee acknowledges and agrees that any and all Active8 Content, including copyrights, trademarks, database rights and other intellectual property contained in such Active8 Content are owned by Active8. Any access to Active8 Content which Licensee may have is only incidental to Licensee’s access to the Service in a manner that is in accordance with the license set forth in Section 2 above, and is therefore subject to the terms of the Agreement. Licensee does not obtain any right, title or interest in any Active8 Content.
5.4 Limited Use of Licensee Marks. Licensee grants Active8 the right to use Licensee’s name and logo in connection with marketing collateral produced for publicity about the Service. Active8 agrees to provide to Licensee such marketing collateral for Licensee’s review and approval prior to release by Active8.
5.5 Reservation of Rights. Except for the license expressly granted in the Agreement, Active8 grants no other rights, licenses or privileges to Licensee. No implied licenses are granted by Active8 with respect to any intellectual property owned or controlled by Active8.
6. Fees and Payment.
6.1 Fees. Licensee shall pay all fees in accordance with the pricing and invoicing terms as set forth in the Agreement (collectively, the “Fees”), attached hereto and incorporated herein by reference. All payment obligations are non-cancelable and all Fees and other amounts paid are nonrefundable, in whole or in part, regardless of any SLA Default or whether the Service is suspended, cancelled, or transferred prior to the end of any current Term of the Agreement. Licensee is responsible for payment of all Fees regardless of whether its Users actually access or use the Service. The number of Seats may be increased or decreased following execution of the Agreement by the true-up mechanism described in Exhibit A and/or otherwise by written amendment and, in all cases, by payment of the applicable Fees. Payment for such additional Seats is required to be made in full and in advance before any such additional Users are permitted access to or use of the Service. After the Initial Term, Active8 reserves the right to modify its pricing and Fees annually, in its sole discretion upon notice to Licensee.
6.2 Expenses and Costs. In addition to any Fees owed pursuant to the Agreement, Licensee shall reimburse Active8 for pre-approved travel related expenses, if any. If Licensee has requested any development items and decides to terminate this agreement, Licensee will be responsible for the full cost of any work done on those development items.
6.3 Taxes. All fees and costs payable under the Agreement are net amounts and are payable in full, without deduction for taxes or duties of any kind. Sales taxes will be included on the invoice or in the credit card payment. Licensee will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and withholding taxes), if any, associated with the Agreement or Licensee’s receipt or use of the Service, except for taxes based on Active8’s net income. In the event that Active8 is required to collect or pay any tax for which Licensee is responsible, Licensee will pay such tax directly to Active8. If Licensee pays any withholding taxes that are required to be paid under applicable law, Licensee will furnish Active8 with written documentation of all such tax payments, including receipts.
6.4.1 Invoices. Active8 shall bill all Fees in advance, in accordance with Exhibit A. Licensee shall pay Active8 all expenses within thirty (30) days of the date of Active8’s invoice. If Licensee fails to timely pay any amount due under the Agreement, whether by acceleration or otherwise, Licensee, upon demand, shall pay, in addition, interest at the rate of two percent (2%) per month, but not to exceed the maximum allowed by law, on such delinquent amount from the due date thereof until the date of payment. All payments must be sent to: Active8 Software LLC, PO Box 560623, The Colony, TX 75056, or such other location designated by Active8. Without limiting the foregoing, if Licensee fails to pay any amount when due, Active8 reserves the right, with written notice of 15 days, to suspend all or part of Licensee’s (and its Users’) access to the Service and Licensee Content and any related technical support and training, terminate the Service and any related technical support and training, and/or terminate the Agreement.
6.4.2 Credit Cards. If Licensee chooses to pay monthly, a credit card must be provided that will be automatically billed for the services that will be provided during the month. If the credit card is declined for insufficient funds, a fee of two percent (2%) will be added to the invoice. Additionally, if Licensee fails to pay any amount due under the Agreement, whether by acceleration or otherwise, Licensee, upon demand, shall pay, in addition, interest at the rate of two percent (2%) per month, but not to exceed the maximum allowed by law, on such delinquent amount from the due date thereof until the date of payment.
7. Representations and Warranties; Warranty Disclaimer.
7.1 Each party to the Agreement represents and warrants that: (i) it has the legal authority to enter into and perform in connection with the Agreement; and (ii) it shall comply with all laws and regulations applicable to the performance of its obligations hereunder and shall obtain all applicable permits and licenses required of it in connection with its obligations hereunder.
7.2 Active8 represents and warrants that: it owns the Services or otherwise has the rights to grant the licenses granted to Licensee hereunder; and will exercise reasonable efforts to avoid the introduction of code that is known to disrupt, damage or interfere with any Licensee use or Licensee’s computer and communications facilities or equipment (“Harmful Code”). “Harmful Code” shall include, without limitation, any code containing viruses, Trojan horses, worms or like destructive code or code that self-replicates.
7.3 Licensee represents and warrants that: (i) it and its Users will not violate the license terms or restrictions for the Service, (ii) it will not resell use of or access to the Service, unless expressly permitted, (iii) it owns or controls the Licensee Content and has the right to exercise and grant any rights with respect thereto, (iv) all information provided in connection with Licensee’s registration is accurate and reliable, (v) it will be responsible for its own backup and storage of Licensee Content that is maintained outside of the Service, and (vi) it and its Users will not introduce any Licensee Content or other material that violates any law, right of any person or the terms of the Agreement.
7.4 LICENSEE’S ACCESS TO AND USE OF THE SERVICE IS AT LICENSEE’S AND ITS USERS’ SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. ACTIVE8 AND ITS SUPPLIERS MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET LICENSEE’S REQUIREMENTS OR RESULT IN REVENUES OR PROFITS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE TIMELY, ACCURATE OR RELIABLE, AND (iv) THE QUALITY OF ANY PRODUCTS, SERVICE, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY LICENSEE THROUGH THE SERVICE WILL MEET LICENSEE’S EXPECTATIONS. WHILE ACTIVE8 WILL USE COMMERCIALLY REASONABLE EFFORTS TO PREVENT UNAUTHORIZED ACCESS TO DATA ENTERED INTO "RESTRICTED FIELDS" (DEFINED FOR PURPOSES OF THE AGREEMENT AS FIELDS ACCESSIBLE ONLY VIA LICENSEE-ENABLED AND CONTROLLED PERMISSIONS) WITHIN THE SERVICE, ACTIVE8 AND ITS SUPPLIERS MAKE NO WARRANTY THAT SUCH RESTRICTED FIELDS WILL BE SECURE AGAINST SUCH UNAUTHORIZED ACCESS OR OTHER SECURITY BREACHES. ACTIVE8 AND ITS SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, UNLESS SUCH REPRESENTATIONS AND WARRANTIES ARE NOT LEGALLY EXCLUDABLE. ACTIVE8 EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT LICENSEE’S USE OF THE SERVICE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED OR OBTAINED AT LICENSEE’S OWN DISCRETION AND RISK AND LICENSEE WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO LICENSEE’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY LICENSEE FROM ACTIVE8 OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
THE SERVICE MAY BE SUBJECT TO DELAYS, FAILURES, LIMITATIONS, AND OTHER PROBLEMS CONNECTED WITH USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ACTIVE8 IS NOT RESPONSIBLE FOR, AND SHALL NOT BE LIABLE FOR, ANY SUCH DELAYS, FAILURES OR DAMAGE RESULTING THEREFROM.
8.1 Active8 Indemnity. Active8 will defend and indemnify Licensee against any action brought against Licensee by a third party to the extent that it is based upon a claim that the Service (excluding the Licensee Content), as made available by Active8 to Licensee under the Agreement and used within the scope of the Agreement, infringes any U.S. copyright, trademark or trade secret, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded either by final judgment or settlement against Licensee, provided that Licensee: (i) promptly notifies Active8 in writing of the claim; (ii) tenders to Active8 (in writing) the sole control of the defense and settlement of the claim; and (iii) provides Active8, at Active8’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. Notwithstanding the foregoing, Active8 will have no liability for any infringement or misappropriation claim of any kind to the extent that it results from: (a) modifications to the Service made by a party other than Active8 or its agents, if a claim would not have occurred but for such modifications; (b) the combination, operation or use of the Service with systems, equipment, devices, software or data not supplied by Active8 or specified in the Documentation, if a claim would not have occurred but for such combination, operation or use; (c) failure to use an updated or modified version of the Service if provided by Active8 to avoid a claim; (d) use of the Service in a manner that violates applicable law or for a purpose that violates applicable law, (e) the Licensee Content, and/or (f) use of or access to the Service by any of Licensee’s Users (regardless of whether such Users are authorized or unauthorized by Licensee). The provisions of this Section 8.1 set forth Active8’s sole and exclusive obligations, and Client’s sole and exclusive remedies, with respect to infringement or misappropriation of intellectual property rights of any kind in connection with the Service.
8.2 Licensee Indemnity. Licensee agrees to indemnify, defend and hold harmless Active8, its subsidiaries and Affiliates, and its and their directors, officers, agents, assigns and employees ("Indemnitees"), from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of or related to any Licensee Content; Licensee’s use (and its Users’ use), misuse of or access to the Services; Licensee’s connection to the Service; Licensee’s and/or its Users’ violation of the Agreement or the applicable Terms of Service; or Licensee’s violation of any proprietary or other rights of a third party or any User; or Licensee’s or Users’ violation of applicable law. Indemnitees are not liable or responsible in any way for any errors, omissions or any other actions arising out of or related to Licensee’s and/or User’ use of or access to the Services or the Licensee Content. If Licensee is a registered entity and permits Licensee’s Affiliates, subsidiaries, employees, and/or any third party to access and/or use the Service and/or Licensee Content, Licensee shall be solely responsible for (i) their acts and/or omissions in connection with their access and/or use of the Service and (ii) ensuring that their access and/or use of the Service is in compliance with the Agreement, and any and all applicable local laws, rules and regulations. Licensee agrees to fully indemnify Active8 and its affiliates, subsidiaries, licensors, and online service providers (collectively, "Representatives") for any liability, fines, penalties, costs, claims and/or damages incurred by Active8 and/or the Representatives in connection with any claim related to the access and/or use of the Service and/or Licensee’s Content by Licensee, Licensee’s Affiliates, subsidiaries, employees or any third-party authorized by Licensee.
9. Limitation of Liability. ACTIVE8 AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF ACTIVE8 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICE RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF LICENSEE TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.
ACTIVE8 WILL NOT BE LIABLE FOR ANY (a) INTERRUPTION OF BUSINESS, (b) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THIS SITE OR THE WEB SITE(S) LICENSEE ACCESSES THROUGH THIS SERVICE; (c) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; (d) UNAUTHORIZED ACCESS TO DATA ENTERED IN, OR BREACH OF ANY SECURITY MECHANISMS UTILIZED IN THE SERVICE OR IN ANY RESTRICTED FIELD THEREIN; OR (e) EVENTS BEYOND ACTIVE8’S REASONABLE CONTROL.
IN NO EVENT SHALL ACTIVE8’S MAXIMUM AGGREGATE LIABILITY EXCEED THE AMOUNT PAID BY LICENSEE TO ACTIVE8 FOR THE SERVICE, TO A MAXIMUM AMOUNT EQUAL TO THE FEES PAID TO ACTIVE8 BY LICENSEE DURING THE SIX (6) MONTHS PRECEEDING THE OCCURRENCE RESULTING IN SUCH LIABILITY.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO LICENSEE.
THE PARTIES AGREE THAT THE FOREGOING PROVISIONS REPRESENT A FAIR AND EQUITABLE ALLOCATION OF RISK WITHOUT WHICH THEY WOULD NOT HAVE ENTERED INTO THE AGREEMENT.
10. Service Modifications. Active8 reserves the right at any time and from time to time to modify the Service (or any part thereof) with or without notice and without altering the material functionality of the Service. Such modifications would be made to correct errors, improve performance, etc. In the event Active8 reasonably believes that any such modification could adversely affect all then-current licensees of the Service then Active8 will inform Licensee of such planned modification in advance and make such modification in a manner to minimize any such adverse effect. Should Active8 choose to permanently discontinue the Service, Active8 (i) will exercise its right to terminate the Agreement for convenience pursuant to Section 12.2.3 below, and (ii) will post notification of such decision on the Service web site thirty (30) days prior to such discontinuance. Active8 will not be liable to Licensee or to any User or third party for any modification, suspension or discontinuance of the Service, or for any resulting loss or destruction of any Licensee Content that Licensee placed on the Service after the date of such notice. Active8 may specify in writing from time to time the version(s) of related products required in order to use the Service (e.g., supported browser versions etc.).
11. Intentionally Left Blank
12. Term, Termination & Post Termination.
12.1 Term. The “Initial Term” of the Agreement is will be set forth in an associated Contract, unless earlier terminated by either party pursuant to this Section 12, or as otherwise set forth in any Exhibit or Schedule under the Agreement.
12.2 Termination by Either Party.
12.2.1 Termination for Cause. (a) Either party may terminate the Agreement upon thirty (30) days’ written notice if the other party breaches the Agreement and fails to cure such breach within thirty (30) days after receiving written notice thereof from the non-breaching party. (b) In addition, Licensee may terminate the Agreement for cause upon thirty (30) days’ written notice to Active8 in the event of failure to cure an SLA Default (as defined in the SLA, Exhibit B) within ten (10) business days.
12.2.3 Termination for Convenience. Either party may terminate the Agreement for any or no reason, prior to the end of any term, by sending written notice ninety (90) days, prior to the end of the then-current term, to the other party subject to Section 12.5 and Licensee’s fulfillment of its payment obligations through the end of the then-current Term.
12.3 Suspension. Active8 may, in its sole discretion, suspend or terminate Licensee’s account and/or deny access to, use of, or submission of Licensee Content for, all or part of the Service, without liability, obligation, notice or otherwise, if Licensee engages in any conduct that Active8 reasonably believes: (i) violates any provision of the Agreement or any law, (ii) violates the rights of Active8 or third parties, or (iii) is otherwise inappropriate for continued access and use of the Service. In addition, Active8 reserves the right to terminate any account if that account has been inactive for greater than three hundred and sixty-five (365) days. Lastly, Active8 reserves the right to suspend or terminate Licensee’s account and/or deny access to, use of, or submission of Licensee Content for, all or part of the Service, without liability, obligation, notice or otherwise, pursuant to Section 6.4 above.
12.4 Responsibilities Upon Termination. Upon any termination of the Agreement, and without limiting any other provision hereof: (i) all of Active8’s obligations to host and otherwise provide access to the Licensed Software and the Service shall fully and finally cease and Active8 shall have no further obligations in that respect after the 30-day transition period that begins on the day notice is given, (ii) each party shall destroy the other party’s Confidential Information, or return it at the other party’s request and expense; (iii) Licensee shall pay to Active8 all unpaid Fees and expenses due Active8; (iv) any and all licenses granted under the Agreement shall immediately and automatically terminate; (v) Licensee shall (and shall require its Users to) cease use of and access to the Service after the 30-day transition period; (vi) except in the event of insolvency of Licensee, Licensee shall, at Active8’s election, either promptly return to Active8 or destroy all Confidential Information, copies of any software, or third party software, if any, and all other materials, whether tangible or intangible, furnished by Active8 pursuant to the Agreement, (viii) Licensee will pay all such amounts due Active8 in full, (ix) during the 30-day transition period Active8 will furnish Licensee with a Microsoft Excel spreadsheet (or other applicable Microsoft Office product) containing that portion of Licensee Content that existed in the Service at the time notice was given, and (x) subject to item (ix) above Active8 shall not be liable to Licensee, its Users or any third party for any suspension or termination of access to the Service. Notwithstanding the foregoing, if Active8 terminates the Agreement for convenience pursuant to Section 12.2.3, Licensee shall only be responsible for the payment of any and all Fees and expenses due through the effective date of such termination.
12.5 Survival. The provisions of Sections 1 (“Definitions”), 2.4 (“Restrictions”), 4 (“Confidentiality; Licensee Content; Disposition of Licensee Content upon Termination”), 5 (“Intellectual Property Ownership”), 6 (“Fees, Invoicing and Payment”), 7 (“Representations and Warranties; Warranty Disclaimer”), 8 (“Indemnification”), 9 (“Limitation of Liability”), 10 (“Service Modifications”), 12.4 (“Responsibilities Upon Termination”), this Section 12.5 (“Survival”), 14 (“General Provisions”), and any exhibit, addenda or attachment that, by its nature, survives termination, shall survive any termination or expiration of the Agreement.
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14. General Provisions.
14.1 Choice of Law. The Agreement shall be governed in all respects by the internal laws of the State of Ohio excluding its conflicts or choice of law provisions and Licensee agrees to submit to personal jurisdiction in the State of Ohio, County of Medina.
14.2 Notices. Notices between the parties shall be by personal delivery, overnight delivery, or certified or registered mail, return receipt requested, and shall be deemed given upon receipt at the address of the recipient party. Addresses used shall be the ones set forth herein or such other address as a party hereto shall notify the other in writing. If the notice is to Active8, it shall be sent to the attention of the Active8 Legal Department, Attention General Counsel.
14.3 Severability. In the event of any invalidity of any provision of the Agreement, the parties agree that such invalidity shall not affect the validity of the remaining portions of the Agreement, and further agree to substitute for the invalid provision a mutually-agreeable valid provision which most closely approximates the intent of the invalid provision.
14.4 Headings. The headings in the Agreement are for the convenience of reference only and have no legal effect.
14.5 No Third Party Beneficiaries. The Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party (including Users). Only the parties to the Agreement may enforce it.
14.6 Assignment. Licensee may assign, sublicense, delegate or transfer all of its rights and responsibilities under the Agreement by operation of law or otherwise to any subsidiaries or affiliates thereof with advance written approval from Active8, or to any other party in connection with a sale of this business. Any assignment of the Agreement by Licensee in connection with a sale of its business shall relieve Licensee from any further liability hereunder. Active8 may assign, sublicense, delegate or transfer all or any portion of its rights or responsibilities under the Agreement by operation of law or otherwise to any subsidiaries or affiliates thereof, or to any other party in connection with a sale of this business. Any assignment of the Agreement by Active8 in connection with a sale of this business shall relieve Active8 from any further liability hereunder. All the terms and provisions of the Agreement shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns.
14.7 Relationship. Each party hereto is an independent contractor, and neither party is, nor will claim to be, a legal representative, partner, franchisee, agent or employee of the other. The Agreement sets forth Active8’s entire liability and Licensee’s exclusive remedies relating to the Agreement and the Service provided to Licensee under the Agreement. Licensee’s use of any third party’s services or content accessed through the Service shall be governed by any agreement entered into between Licensee and such third party, and Active8 shall have no liability relating thereto.
14.8 Force Majeure. Neither party shall be liable to the other for a failure or delay in its performance of any of its obligations under the Agreement (except for the payment of amounts due hereunder) to the extent that such failure or delay is caused by circumstances beyond its reasonable control or by events such as fire, riot, flood, labor disputes, natural disaster, regulatory action, internet or telecommunications failures, terrorist acts, or other causes beyond such party's reasonable control, provided that the non-performing party gives notice of such condition and continues or resumes its performance of such affected obligation to the maximum extentand as soon as reasonably possible, and provided further, that either party may terminate the Agreement upon delivery of written notice to the other party if such condition continues for a period in excess of sixty (60) days.
14.9 Export Restrictions. Licensee acknowledges and agrees that the Services are based on licensed software that is subject to restrictions and controls imposed by the Export Administration Act of 1979, as amended, and the Export Administration Regulations there under ("the Acts"). Licensee agrees and certifies that neither the licensed software nor any direct product thereof, including the Services, is being or will be used for any purpose prohibited by the Acts. Licensee further agrees and certifies that neither the licensed software nor any direct product thereof, including the Services, will be exported to (i) the following countries which are currently subject to U.S. trade embargoes: Cuba, Iran, Libya, North Korea, Sudan and Syria or (ii) persons or entities on the U.S. "Denied Persons List", "Specially Designated Nationals List" and "Entities List". In addition, Licensee certifies that Licensee is not a citizen or permanent resident of any of the above listed countries and that Licensee is not on the U.S., "Denied Persons List", "Specially Designated Nationals List" or the "Entities List".
14.10 Counterparts and Fax Signatures. This Contract associated with the Agreement may be executed in counterparts, each of which shall constitute an original, and all of which shall constitute one agreement. A signature transmitted via facsimile or scanned original shall be deemed an enforceable signature for the purpose of demonstrating the signing party’s assent to the Agreement. Each party represents that the person signing the Contract on its behalf has the requisite legal authority to bind the party on whose behalf he/she is signing.
14.11 Intentionally Left Blank.
14.12 Authority. The individual executing the Contract on behalf of each Party represents and warrants that s/he is authorized to execute the Contract on behalf of such respective Party and bind the party on whose behalf s/he is signing.
14.13 Waiver. A waiver of any breach or default under the Agreement shall not constitute a waiver of any other right for subsequent breach or default.
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Service Level Agreement (SLA)
This Exhibit is incorporated into and made a part of the Agreement to which it is attached. Capitalized terms used and not defined herein shall have the meanings given such terms in the Agreement.
The following definitions apply to this SLA:
1.1 Emergency Maintenance means maintenance required as a result of conditions beyond Active8’s reasonable control. Emergency maintenance may occur at any time, as Active8 deems necessary.
1.2 Outage means the period (measured in minutes) during which Availability is lower than the applicable service level as defined in Section 2 below, (excluding any Permitted Outage as defined herein). In the event of an Outage, the Active8 Customer Service team shall provide notice to Licensee in a timely manner and shall use commercially reasonable efforts to remedy such Outage.
1.3 Permitted Outage means any Outage which is caused by one or more of the following:
(a) Activities which Licensee directs, denial of service attacks, natural disasters, changes resulting from government, political, or other regulatory actions or court orders, strikes or labor disputes, acts of civil disobedience, acts of war, acts against parties (including third party carriers or other vendors), or a force majeure event, as described in the Agreement;
(b) Periods of Scheduled Maintenance or Emergency Maintenance activities which result in an Outage;
(c) Licensee-provided content or programming errors including, but not limited to, content installation and integration;
(d) System administration, commands, file transfers performed by Licensee’s representatives;
(e) Work performed at Licensee’s request (for example, additional technical assistance);
(f) Lack of availability or untimely response time from Licensee to respond to incidents that require its participation for source identification and/or resolution, including meeting “Company name” responsibilities for any prerequisite services;
(g) Licensee’s breach of its material obligations under the Agreement;
(h) Licensee’s performance of any, technical security integrity review, penetration test, or vulnerability scan;
(i) An event to which Active8 reasonably believes to the best of its knowledge and experience that there is no alternative but to cause an Outage in order to resolve an issue, if time is of the essence and the appropriate Licensee individuals at are not contactable, Active8 may cause the Outage. Any such Outage shall be for as short a time as possible and shall be kept as localized as possible. Active8 shall inform Licensee as soon as is reasonably practicable of such Outage; and/or
(j) a force majeure event.
1.4 “Scheduled Maintenance” means the period of time during which Active8 performs scheduled maintenance, making reasonably commercial efforts to schedule related outages for essential maintenance and updating which will occur on weekends and/or off-hours and shall not be planned to occur more than twelve (12) times during a calendar year. Active8 will make reasonable efforts to provide at least one (1) day’s advance notice for standard maintenance, and thirty (30) minutes advance notice for Emergency Maintenance. Active8 reserves the right to extend or change the time periods of the Scheduled Maintenance.
2. SERVICE LEVEL Availability
Active8 will use reasonable commercial efforts to ensure that the Service will meet or exceed the “Availability”, defined as meaning that the network will be available ninety-nine percent (99.0%) percent of the time, seven (7) days a week, twenty-four (24) hours per day, as calculated at the end of a rolling three (3)-month period. Availability shall exclude, and Active8 shall not be responsible for, any Outage which occurs as a result of a Permitted Outage. Failure to meet SLA’s will result in a 15% discount on the next quarter’s bill.
3. Data Backup
Active8 will use reasonable commercial efforts to ensure that the Service will back up database information to an offsite location every twenty-four (24) hours. Data will be stored on back-up servers for a maximum of thirty (30) days.
If, at the end of each calendar quarter, the average Availability percentage for that preceding quarter is less than 99.0%, Active8 shall measure and report its performance of up-time, with and without Scheduled Maintenance, for such calendar quarter.
Notifications required of Active8 hereunder will be made available to Licensee via a website designated and provided by Licensee.
6. SLA Default
A “SLA Default” means three (3) Outages (excluding Permitted Outages) caused by separate, unrelated events during a consecutive two (2) month periods, or failure to meet the quarterly up-time requirements.
7. Technical support
Send technical support requests to email@example.com or call (469) 654-4357
Standard Support Hours:
Monday through Sunday: 8:00 AM - 5:00 PM EST (Excluding U.S. Federal Holidays)
Emergency Support Hours (must call)
Monday through Sunday: 5:00 PM - 10:00 PM EST
U.S. Federal Holidays: 8:00 AM - 10:00 PM EST
Requests will be responded to by the end of the next business day for all non-emergency support needs.
This Exhibit is incorporated into and made a part of the Agreement to which it is attached. Capitalized terms used and not defined herein shall have the meanings given such terms in the Agreement.
The description of software functionality is as follows:
1. Active8 Point of Sale Functionality
a. A web-based application designed to provide the following functionality: Point of Sale, Birthday Party Booking, Birthday Party Management, Online Ticket Purchase, Electronic Waivers, Customer Account Management, Employee Scheduling, and Employee Time Clock.
2. Custom Services
a. Active8 will add custom requirements/capabilities to any of the modules for Licensee for the Custom Work Fee, described in Exhibit A
b. These customizations will be scoped on an individual basis and done as a separate Scope of Work
i. Active8 retains right and title to any modifications or improvements made to the system. These modifications may be made available to other customers, as per Section 5 of the Agreement.
c. If multiple clients have similar requests for changes or improvements to any module, Active8, in its sole discretion, may decide to develop these and release the functionality as part of its ongoing development work associated with the modules listed above
d. Active8 may release other modules not listed herein, containing functionality not described above. These modules may be made available for purchase, at a price decided upon by Active8, in its sole discretion.