This Software License Agreement (“Agreement”) contains the terms for use of the Software and is between FEEDER 18, LLC.,a Florida Corporation having a place of business at 430 Ansin Blvd. Ste 430 J, Hallandale FL33009 (further identified in this agreement as F-18) and the party agreeing to the terms of this Agreement (“Licensee”). By clicking an “Accept” or similar button or completing a registration process or otherwise downloading or using the Software, Licensee agrees to be bound by the terms of this Agreement. Licensee may not use the Software without agreeing to this Agreement first.
In consideration of the mutual promises and upon the terms and conditions set forth below, the parties agree as follows:
- Definitions.Whenever used in this Agreement, the terms set forth shall have the meanings ascribed to them below.
“Confidential Information” means confidential or other proprietary information that is disclosed by either party to the other party under this Agreement, including without limitation any software designs, specifications and documentation, business and product plans and other confidential business information, whether in written, electronic or oral form. Any materials disclosed regarding the technical documentation related to the Software shall be deemed Confidential Information of F-18. Confidential Information shall not include information that: (i) is disclosed by the receiving party with the prior written approval of the disclosing party; (ii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; (iii) is rightfully received by the receiving party from a third party without a duty of confidentiality; (iv) is independently developed by a party without use of any use of the other party’s confidential information; or (v) is disclosed pursuant to any judicial or governmental order, provided that the receiving party gives the disclosing party sufficient prior written notice to contest such order.
“Intellectual Property Right” means any patent, copyright, trade name, trademark, trade secret, know-how, or any other intellectual property right or proprietary right whether registered or unregistered, and whether now known or hereafter recognized in any jurisdiction.
“Software” means the object code version of the computer programs specified by F-18. The identification of the Software is: Feeder 18, Pro Edition, Version NEC2014.1
“Support” is as set forth in Section 3.
- License Grant and Ownership.
2.1 License by F-18. Subject to the terms and conditions of this Agreement, F-18 grants Licensee a non-exclusive, non-transferable, license, without right of sublicense, to (a) evaluate and use the Software for its internal business purposes, and (b) make a copy of the Software for backup or archival purposes; provided that all titles, trademark symbols, copyright symbols and legends, and other proprietary markings are reproduced on such copies.
2.2 Restrictions. Licensee agrees that except as expressly permitted by this Agreement, it will not itself, or through any parent, subsidiary, affiliate, agent, or other third party: (a) sell, lease, license, sublicense, encumber, or otherwise transfer or disclose any portion of the Software or any documentation; (b) decompile, disassemble, or reverse engineer any portion of the Software; (c) write or develop any derivative software or any other software based on the Confidential Information provided by F-18; (d) use the Software to provide software build services to any parent, subsidiary, affiliate, agent or other third party; or (e) provide, disclose, divulge, or make available to, or permit use of the Software by persons other than Licensee’s authorized users.
2.3 Changes. F-18 may change or discontinue, any of the Software features (or Software as a whole) from time to time. F-18 will notify Licensee of any material change to or discontinuation of the Software.
2.4. Return Policy. Software is not refundable once purchased.
- Support.F-18 may, in its sole discretion, provide updates, modifications or bug fixes for the Software to Licensee. Any such updates, modifications, or bug fixes shall be deemed part of the Software and subject to the license and other terms and conditions hereunder.
- Ownership.Licensee acknowledges that the Software and documentation and any and all Intellectual Property Rights in the Software and documentation, and any derivative works of the foregoing, regardless of creator, are and shall remain the property of F-18 or its licensors. The Software and documentation are licensed, not sold, to Licensee. No license, right or interest in any F-18 trademark, copyright, trade name or service mark is granted hereunder. All rights not expressly granted under this Agreement are reserved. F-18 shall own any suggestions, enhancement requests, recommendations, or other feedback provided by Licensee or its users relating to the operation of the F18 Software.
- Payments and Taxes. Licensee is responsible for any and all taxes related to its use of the Software.
- Limited Warranty.
6.1 Limited Warranty. Each party represents and warrants that (i) it has the legal power to enter into and perform under this Agreement; and (ii) it shall comply with all other applicable laws in its performance hereunder.
6.2 Disclaimer of Warranty. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, F-8 HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THE SOFTWARE HEREUNDER, INCLUDING ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. F-18 AND THIS WEBSITE ARE PROVIDED ON A “AS IS” AS “AVAILABLE” BASIS. YOUR USE OF F-18 IS AT YOUR SOLE RISK.
- Limitation of Liability.In no event will F-18 be liable TO licensee for any loss of profits, loss of use, business interruption, loss of data, cost of cover, or FOR ANY indirect, special, incidental, or consequential damages of any kind in connection with or arising out of the furnishing, performance, or use of the Software or SUPPORT OFFERED hereunder. F-18. Maximum aggregate liability for damages or loss, howsoever arising or caused, shall in no event be EXCEED FIVE HUNDRED DOLLARS ($500).
8.1 Confidential Information. Each party acknowledges that the Confidential Information constitutes valuable trade secrets and each party agrees that it shall use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and will not disclose, or permit to be disclosed, the same, directly or indirectly, to any third party without the other party’s prior written consent. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure.
- Term and Termination.
9.1 Term. This Agreement commences on the date it is executed or Licensee’s first use of the Software, whichever is sooner, and will continue unless earlier terminated pursuant to this Section 9. Either party may terminate this Agreement for convenience upon notice to the other party under Section 10.4.
9.2 Effect of Termination. Upon the effective date of termination of this Agreement, Licensee’s license to use the Software will cease and Licensee will delete and either destroy or return to F-18 copies of the Software and any documentation and any F-18 Confidential Information. The parties’ rights and obligations under Sections 4, 6.2, 8, 9.2, and 10 shall survive termination of this Agreement.
10.1 Force Majeure. Neither party shall be liable to the other in any way whatsoever for any failure or delay in performance of any of the obligations under this Agreement (other than obligations to make payment), arising out of any event or circumstance beyond the reasonable control of such party (including war, terrorist act, rebellion, civil commotion, strikes, lock-outs or industrial disputes, fire, explosion, earthquake, flood, drought or bad weather; the unavailability of deliveries, supplies, software, disks or other media, Internet failures, or the requisitioning or other act or order by any government department, council, or other constituted body).
10.2 Assignment. This Agreement may not be assigned by Licensee, whether voluntarily or involuntarily, in whole or in part, or by operation of law, including by way of change of control, sale of assets, merger or consolidation, to any party without the prior written consent of F-18. Any assignment in violation of this Section 10.2 shall be null and void from the beginning and shall be deemed a material breach of this Agreement. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
10.3 Waiver. Failure or neglect by either party to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of such party’s rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice such party’s rights to take subsequent action.
10.4 Notices. All notices shall be given in writing, and shall be deemed to have been duly given when 1) delivered by hand, posted by registered first class mail (airmail if international), or sent via recognized overnight couriers (e.g., Federal Express) or 2) via e-mail to the party to which such notice is required to be given at the address stated in this Agreement or any address on file with F-18. Notices delivered by hand shall be deemed received the first business day following such delivery or sending, notices posted or sent via overnight courier shall be deemed received on the second business day following posting (or third if international), and notices delivered by e-mail shall be deemed delivered upon the date which they were sent.
10.5 Publicity. Each party may include the other’s name and logo in its customer or vendor lists, subject to any guidelines provided by the other party. Licensee will reasonably cooperate with F18 in a press release or other F-18 marketing material.
10.6 Severability. If any clause, sub-clause or other provision contained in this Agreement shall be determined by any competent authority to be invalid, unlawful, or unenforceable to any extent, such clause, sub-clause, or other provision shall to that extent be severed from the remaining clauses and provisions, or the remaining part of the clause in question, which shall continue to be valid and enforceable to the fullest extent permitted by law.
10.7 Headings; Construction. The headings to the clauses, sub-clauses, and parts of this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. Any ambiguity in this Agreement shall be interpreted equitably without regard to which party drafted the Agreement or any provision thereof. The terms “this Agreement,” “hereof,” “hereunder,” and any similar expressions refer to this Agreement and not to any particular Section or other portion hereof. The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of this Agreement. As used in this Agreement, the words “include” and “including,” and variations thereof, will be deemed to be followed by the words “without limitation,” and “discretion” means sole discretion.
10.8 No Standard Terms of Licensee. No terms, provisions, or conditions of any purchase order, acknowledgement, or other business form that Licensee may use in connection with the acquisition or licensing of the Software will have any effect on the rights, duties, or obligations of the parties under, or otherwise modify, this Agreement regardless of any failure of F-18 to object to such terms, provisions, or conditions. This Agreement contemplates the contemporaneous and future execution by the parties of one or more ordering documents which shall be incorporated herein by this reference and subject to the terms of this Agreement.
10.9 Independent Contractors. The parties hereto are independent contractors. Nothing in this Agreement shall be deemed to create an agency, employment, partnership, fiduciary, or joint venture between the parties. No party hereto (nor any agent or employee of such party) will make any representations or warranties or incur any liability on behalf of the other.
10.10 Governing Law. The rights and obligations of the parties under this Agreement shall be governed.exclusively by the internal laws of the state of Florida, without regard to its conflicts of laws rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
10.11 Entire Agreement. This Agreement supersedes any arrangements, understandings, promises, or agreements made or existing between the parties hereto prior to or simultaneously with this Agreement and constitutes the entire understanding between the parties hereto. Except as otherwise provided herein, no addition to, amendment to, or modification of this Agreement shall be effective unless it is in writing and signed by and on behalf of both parties. It is acknowledged that the terms of this Agreement have been negotiated between the parties.