» version 1.X - posted on 2008-08-01
THIS IS A LEGAL AGREEMENT BETWEEN YOU, THE EMPLOYEE, THE INDIVIDUAL, OR THE ENTITY IDENTIFIED AS “CUSTOMER” (AS DEFINED HEREinafter) AND TreeLOFT Software. THIS AGREEMENT STATES THE TERMS and conditions UNDER WHICH CUSTOMER MAY USE LifeCALC. BY clicking on the accept button, INSTALLING, HAVING Lifecalc INSTALLED ON CUSTOMER’s BEHALF, COPYING, HAVING lifecalc COPIED ON CUSTOMER’s BEHALF, USING OR HAVING lifecalc USED ON CUSTOMER’s BEHALF, CUSTOMER INDICATES THAT CUSTOMER HAS READ AND UNDERSTANDS THIS AGREEMENT AND AGREES TO BE BOUND BY THE TERMS SET FORTH IN THIS AGREEMENT. IF “lifecalc” IS INSTALLED, COPIED OR USED ON BEHALF OF CUSTOMER, THE TERMS SET FORTH IN THIS AGREEMENT SHALL APPLY TO CUSTOMER AS WELL AS TO the INDIVIDUAL OR ENTITY INSTALLING, COPYING OR USING “lifecalc ON BEHALF OF CUSTOMER. this agreement shall be effective as of THE earlier of the date lifecalc is installed or used. “lifecalc” SHALL BE DEEMED ACCEPTED BY CUSTOMER TEN (10) DAYS AFTER THE DATE “lifecalc” IS DELIVERED TO CUSTOMER. IF CUSTOMER DOES NOT AGREE WITH THE TERMS and conditions SET FORTH IN THIS AGREEMENT, DO NOT install or USE “lifecalc” AND RETURN “lifecalc” TO TreeLOFT Software WITHIN TEN (10) DAYS OF THE DATE “lifecalc” IS DELIVERED TO CUSTOMER. ANY REFUNDS (IF APPLICABLE) SHALL BE SUBJECT TO TreeLOFT Software STANDARD REFUND POLICY IN EFFECT, LESS ANY RESTOCKING FEES AND OTHER APPLICABLE FEES.
This SOFTWARE Agreement (“Agreement”) is made as of the Effective Date by and between TreeLOFT Software, a corporation with offices located at Altoona, IA and the individual or entity identified on the Sales Agreement as customer (“Customer”).
W I T N E S S E T H:
WHEREAS, TreeLOFT Software owns that certain SOFTWARE application entitled LifeCALC; and
WHEREAS, Customer has had an opportunity to review and approve the functions and utilities of LifeCALC and is familiar with the use and operation of LifeCALC; and
WHEREAS, Customer has independently determined that LifeCALC will meet the needs of Customer for an entertainment/personal finance application at the Facility (as defined below); and
WHEREAS, Customer desires to receive a license to use LifeCALC .
NOW THEREFORE, in consideration of the mutual benefits of the covenants and restrictions herein contained, TreeLOFT Software and Customer hereby agree as follows:
ARTICLE I: RECITALS AND DEFINITIONS
Section 1.01 -- Recitals: The above recitals and identification of parties are true and correct.
Section 1.02 -- Definitions: The following definitions shall apply:
Access: The term “Access” and variants thereof shall mean to store data in, retrieve data from or otherwise approach or make use of (directly or indirectly) through electronic means or otherwise.
SOFTWARE: The term “LifeCALC ” shall mean the object code for that certain SOFTWARE application, including the Documentation, as provided by TreeLOFT Software to Customer hereunder, including Updates.
Associate: The term “Associate” shall mean an employee of TreeLOFT Software or an independent contractor hired by TreeLOFT Software.
Authorized Person: The term “Authorized Person” shall mean Customer or employees of Customer who agree in writing to maintain the confidentiality of Confidential Information and individuals or organizations who are authorized in writing by TreeLOFT Software to receive Confidential Information and who agree in writing to maintain the confidentiality of such Confidential Information.
Cancellation Notice: The term “Cancellation Notice” shall mean that written notice sent by TreeLOFT Software to Customer seeking to cancel this Agreement because of breach of this Agreement by Customer.
Confidential Information: The term “Confidential Information” shall mean all information concerning this Agreement, LifeCALC , and the business and technical plans of TreeLOFT Software which is disclosed by TreeLOFT Software to Customer or learned by Customer.
Defects: The term “Defects” shall mean programming errors which substantially impair the performance, utility and functionality of LifeCALC , as represented in the Documentation.
Defect Notice: The term “Defect Notice” shall mean that certain written notice from Customer to TreeLOFT Software identifying Defects.
Delivery Date: The term “Delivery Date” shall mean the date LifeCALC is delivered to Customer (as applicable).
Deposit: The term “Deposit” shall mean a sum of money equal to fifty percent (50%) of the Price.
Documentation: The term “Documentation” shall mean the LifeCALC user guide (or tutorials, in electronic or printed format) as provided to Customer on the Delivery Date.
Effective Date: The term “Effective Date” shall mean the earlier of the date that the Sales Agreement is executed by TreeLOFT Software and Customer or the date LifeCALC is installed or used.
Event of Bankruptcy: The term “Event of Bankruptcy” shall mean: (1) the filing of a petition under any insolvency or bankruptcy statute seeking the declaration of Customer as insolvent or bankrupt; (2) the filing of any action seeking receivership or reorganization of Customer pursuant to or under any insolvency or bankruptcy statute; or (3) the filing of any involuntary petition against Customer pursuant to any insolvency or bankruptcy statute if such petition shall remain unstayed or undismissed for a period of ten (10) days after filing.
Implement: The term “Implement” and variants thereof (including, but not limited to, the terms “implementation”, “implementing” and “implemented”) shall mean to load.
Price: The term “Price” shall mean the total price to be paid by Customer to TreeLOFT Software for the System and for licensing LifeCALC , as set forth in the Price Schedule.
Restatements: The term “Restatements” shall mean Section 757 of the Restatement of Torts, Section 39 of the Restatement (Third) of Unfair Competition, Section 1 of the Uniform Trade Secrets Act, and Section 1839 of Title 18 of the United States Code (18 U.S.C. § 1839).
Services: The term “Services” shall mean Maintenance Services and that certain LifeCALC installation, training, telephone support, development and consulting services as requested by Customer and approved by TreeLOFT Software in writing.
Term: The term “Term” shall mean a period of time commencing on the Effective Date and continuing until this Agreement is terminated or canceled under Article IV.
Third Party Technology: The term “Third Party Technology” shall mean third party software, computer, hardware, peripherals, components, devices, equipment and technology used in connection with or related to LifeCALC .
Unauthorized Access: The term “Unauthorized Access” shall mean any access to LifeCALC except for the exclusive purpose of entertainment/personal finance, and training employees of Customer in the use of LifeCALC .
Unauthorized User: The term “Unauthorized User” shall mean any individual who accesses LifeCALC except for: (1) employees of Customer authorized by Customer to access LifeCALC and who agrees to maintain the confidentiality of Confidential Information for the exclusive purpose of performing [Primary Software Purpose], and training employees of Customer in the use of LifeCALC and (2) Authorized Persons authorized in writing by TreeLOFT Software to access LifeCALC .
Updates: The term “Updates” shall mean the object code for updates, upgrades, new versions, new releases or modifications to LifeCALC as generally made available by TreeLOFT Software from time to time to TreeLOFT Software customers for the applicable fee.
Warranty Term: The term “Warranty Term” shall mean a period of time commencing on the Delivery Date and ending on the date which is sixty (60) days thereafter.
ARTICLE II: SOFTWARE
Section 2.01 -- Grant of License: TreeLOFT Software hereby grants to Customer a non-exclusive and non-transferable license to use LifeCALC and to use the Documentation at the Facility for the License Term, subject to the terms and provisions of this Agreement.
Section 2.02 -- Delivery: Customer hereby acknowledges TreeLOFT Software shall deliver LifeCALC on the Delivery Date.
Section 2.03 -- Implementation: Customer shall install the LifeCALC . Customer shall
implement LifeCALC on the System, subject to the terms and conditions of this Agreement.
Section 2.04 -- Acceptance: LifeCALC shall be deemed accepted by Customer ten (10) days after the Delivery Date unless Defect Notice is received by TreeLOFT Software by such tenth day. Upon receiving Defect Notice from Customer, TreeLOFT Software shall review the asserted Defect to determine if the Defect is valid. If, in the reasonable professional judgment of TreeLOFT Software the asserted Defect is valid, TreeLOFT Software shall correct the Defect and resubmit LifeCALC for acceptance by Customer. If, in the reasonable professional judgment of TreeLOFT Software the asserted Defect is not valid, TreeLOFT Software shall submit to Customer a written explanation of the reasons why such asserted Defect is not valid. The written explanation of TreeLOFT Software set forth herein shall be deemed accepted by Customer within ten (10) days after receipt by Customer of such written explanation unless TreeLOFT Software receives from Customer written notice rejecting such explanation and terminating this Agreement within such ten (10) day period. Upon receipt of Defect Notice from Customer by TreeLOFT Software as set forth above, LifeCALC shall be deemed accepted by Customer except as to the asserted Defects specified in the Defect Notice.
Section 2.05 -- Risk of Loss: Customer shall assume risk of loss to LifeCALC as of the Delivery Date. Customer shall keep LifeCALC protected and in good working order, maintained and insured against loss for full replacement value until the date that the Price is paid in full by Customer.
Section 2.06 -- Authorized Use: Customer shall prevent Unauthorized Users from accessing LifeCALC . Customer shall prevent Unauthorized Access to LifeCALC . Customer shall promptly inform TreeLOFT Software of any and all Unauthorized Access (or suspected Unauthorized Access) and Unauthorized Users (or suspected Unauthorized Users) of which Customer has knowledge or suspicion. Access to LifeCALC using third party products for purposes of manipulating, viewing, disclosing or using the internal structure of LifeCALC ™ or for creating a database, data dictionary or data model shall be deemed Unauthorized Access.
Section 2.07 -- Site Restriction: Customer shall use LifeCALC only on the System and only at the Facility.
Section 2.08 -- End Use: Customer hereby represents and warrants that LifeCALC is being licensed by Customer for its own use at the Facility and not for rental, leasing, resale, sublicensing, distribution, outsourcing, or offering service bureau services.
Section 2.09 -- Services: Customer may request Services, as approved by TreeLOFT Software. All Services shall be subject to the discretion of TreeLOFT Software and shall be subject to TreeLOFT Software standard service terms and applicable time and material rates.
ARTICLE III: PAYMENT
Section 3.01 -- Price: Customer shall pay the Deposit on the Effective Date. Customer shall pay the difference between the Price and the Deposit on the Delivery Date.
Section 3.03 -- Costs: Customer shall pay all costs incurred by TreeLOFT Software in performing this Agreement. Such costs shall include (without limitation) postage, freight, telecommunications, fees charged by third parties, telephone, travel, lodging, per diem, material and reproduction costs.
Section 3.04 -- Taxes: Customer shall pay any and all taxes attributable to this Agreement, to the transactions contemplated hereunder or to the transactions performed by Customer or third parties using LifeCALC , including, without limitation, any applicable sales or use taxes. Notwithstanding the foregoing, Customer shall not be responsible for paying any income taxes assessed against TreeLOFT Software.
Section 3.06 -- Invoicing and Payment: Services shall be performed by TreeLOFT Software at the time and material rates of TreeLOFT Software prevailing at the time such Services are rendered. TreeLOFT Software shall invoice Customer for fees and costs in connection with the Services. Customer shall pay any such invoice in full on the due date thereof or within thirty (30) days of receiving such invoice (whichever is earlier).
ARTICLE IV: TERMINATION
Section 4.01 -- Termination Limitations: This Agreement shall only be terminated or canceled as provided under this Article IV.
Section 4.02 -- Term: This Agreement shall be valid for the Term.
Section 4.03 -- Termination: Customer may terminate this Agreement for convenience upon providing ten (10) days written notice of termination to TreeLOFT Software, subject to the terms and provisions of this Agreement.
Section 4.04 -- Cancellation for Cause: If Customer violates its obligations under this Agreement, TreeLOFT Software may cancel this Agreement by sending Cancellation Notice describing the noncompliance to Customer. Upon receiving Cancellation Notice, Customer shall have ten (10) days from the date of such notice to cure any such noncompliance. If such noncompliance is not cured within the required ten (10) day period, TreeLOFT Software shall have the right to cancel this Agreement as of the eleventh day after the date of the Cancellation Notice.
Section 4.05 -- Return: Upon termination or cancellation of this Agreement, Customer shall promptly remove (at Customer’s expense) all customer information and data stored in LifeCALC and return to TreeLOFT Software the LifeCALC , the Documentation and all TreeLOFT Software materials provided by TreeLOFT Software to Customer hereunder and shall provide TreeLOFT Software with a certificate of compliance with this Section 4.05 signed by an authorized representative of Customer. Orders under the Sales Agreement terminated or cancelled by Customer or changes made by Customer within ten (10) days after the Effective Date or before implementation of LifeCALC on the System has started (whichever is earlier) are subject to TreeLOFT Software and Manufacturer’s standard return and refund policy in effect, including (without limitation) restocking fees and other applicable fees. Upon termination or cancellation of this Agreement ten (10) days after the Effective Date or after implementation of the LifeCALC , TreeLOFT Software shall be entitled to retain all payments rendered to TreeLOFT Software under this Agreement, including (without limitation) the Deposit, the Price, payment for the Services, and payments in anticipation of Services.
ARTICLE V: WARRANTY
Section 5.01 -- Warranty: TreeLOFT Software represents and warrants that LifeCALC shall perform substantially as represented in the Documentation for the Warranty Term. Customer’s exclusive remedy for breach of warranty shall be modification or replacement of LifeCALC , as determined by TreeLOFT Software.
Section 5.02 -- Third Party Warranties: TreeLOFT Software hereby assigns to Customer the benefit of any and all Manufacturer warranties for the Third Party Technology and may cooperate (as determined by TreeLOFT Software) with Customer in securing the benefit of any remedies available to Customer under any such Manufacturer warranty.
Section 5.03 -- Service Warranty: Any Services provided by TreeLOFT Software pursuant to this Agreement shall be performed on a reasonable efforts basis in a timely and professional manner and shall conform to the standards generally observed in the industry for similar Services and shall be subject to Sections 5.01, 5.04, 5.05 and 5.08.
SECTION 5.04 -- DISCLAIMER: THE WARRANTIES SET FORTH IN SECTIONS 5.01 AND 5.03 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND TreeLOFT Software HEREBY DISCLAIMS AND CUSTOMER HEREBY WAIVES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY AND ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES OF MERCHANTABILITY.
Section 5.05 -- Express Warranties: Customer hereby acknowledges and agrees that TreeLOFT Software (including TreeLOFT Software officers, employees, agents, directors, independent contractors, affiliates, distributors and successors) has not made or granted any express warranties concerning the System, the Services and LifeCALC except as expressly set forth in Sections 5.01 and 5.03 of this Agreement.
Section 5.06 -- Third Party Claims: If a final judgment from a court of competent jurisdiction is entered against Customer upholding claims that LifeCALC violates a United States patent, copyright, trade secret or other proprietary rights of a third party in the United States, provided that Customer gives TreeLOFT Software prompt written notice upon Customer’s knowledge of any such claim, permits TreeLOFT Software to answer and defend (at TreeLOFT Software option) such claim or action and provides TreeLOFT Software with information, assistance and authority to assist TreeLOFT Software in the defense of such claim or action, TreeLOFT Software shall perform one or more of the following actions (as determined by TreeLOFT Software) within one year of the date final judgment in favor of such third party’s claim is rendered by a court of competent jurisdiction:
(1) Replacement: Replace LifeCALC with a non-infringing entertainment/personal finance product of substantially equivalent functional and performance capability;
(2) Modification: Modify LifeCALC to avoid the infringement without substantially eliminating the functional and performance capabilities of LifeCALC ;
(3) Obtain Agreement: Obtain a license for use of LifeCALC from the third party claiming infringement for use of LifeCALC .
Section 5.07 -- Remedies: The exclusive remedy of Customer for any reason and for any cause of action whatsoever in connection with or relating to this Agreement, the System, LifeCALC or any transaction involving LifeCALC , regardless of the form of action, whether in contract or in tort, including negligence and breach of warranty, shall be limited to repair or replacement of LifeCALC as determined by TreeLOFT Software.
Section 5.08 -- Limitation of Damages: TreeLOFT Software shall not be liable to Customer in connection with or relating to this Agreement, the System, LifeCALC and any transactions involving LifeCALC for any direct, indirect, lost profits, consequential, exemplary, incidental or punitive damages, regardless of the form of action, whether in contract or in tort, including breach of warranty and negligence, regardless of whether TreeLOFT Software has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable. Notwithstanding anything to the contrary, the liability of TreeLOFT Software for any reason and for any cause of action whatsoever in connection with or relating to this Agreement, the System LifeCALC and any transactions involving LifeCALC shall be limited to the license fee for LifeCALC .