PLEASE READ THIS AGREEMENT CAREFULLY
THIS END USER LICENSE AGREEMENT ("AGREEMENT") IS BETWEEN CyberERPReviewer.com, LLC (THE "LICENSOR") AND THE PERSON WHO OPENS THIS PACKAGE OR USES THE SOFTWARE, WHICH ACCOMPANIES THIS AGREEMENT (THE "LICENSEE"). THIS AGREEMENT GIVES THE LICENSEE THE RIGHT TO ACCESS AND USE THE LICENSOR'S SOFTWARE ("SOFTWARE"), AS FURTHER IDENTIFIED HEREIN, PURCHASED FROM THE LICENSOR, ITS RESELLERS OR AGENTS PURSUANT TO A PURCHASE AGREEMENT, CONTRACT, SALES ORDER, INVOICE OR SIMILAR DOCUMENT. THE LICENSOR IS WILLING TO GRANT THE LICENSEE THE RIGHT TO ACCESS AND USE THE LICENSOR'S SOFTWARE ONLY IF THE LICENSEE ACCEPTS ALL OF THE TERMS OF THIS AGREEMENT, AND PAYS OR HAS PAID THE LICENSOR, ITS RESELLERS OR AGENTS, THE FULL PURCHASE PRICE (TO INCLUDE ALL APPLICABLE TAXES AND FEES) FOR USE OF THE LICENSE TO THE SOFTWARE PURCHASED.
BY CLICKING THE "I AGREE" BUTTON AND/OR ACCESSING THE SOFTWARE, THE LICENSEE ACKNOWLEDGES THAT LICENSEE HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY IT. IF THE LICENSEE DOES NOT AGREE TO ALL OF THE TERMS IN THIS AGREEMENT, THE LICENSEE SHOULD NOT ACCESS OR OTHERWISE UTILIZE THE SOFTWARE BECAUSE NO LICENSE SHALL HAVE BEEN GRANTED THERETO.
This computer software license agreement ("Agreement") is entered into as of __________________, 2013, by and between CyberERPreviewer.com, LLC, a Florida limited liability company ("Licensor") with its principal place of business at 124 Victor Road, Lakeland, FL 33809, and ____________________, ("Licensee").
A. Licensor develops and markets CyberERPReviewer (the "Software"), a computer software application for validating the design calculations for specific storm water quality treatment retention and detention systems to ensure compliance with the rules of the St. Johns River Water Management District (SJRWMD), Suwannee River Water Management District (SRWMD), Southwest Florida Water Management District (SWFWMD), Northwest Florida Water Management District (NWFWMD) and Northwest District of the Florida Department of Environmental Protection (FDEP-NW); The Software also serves as a review aid for Water Management District Environmental Resources Permit Application (ERP) Reviewers who are tasked with reviewing consultants' engineering water quality treatment system design calculations for rule compliance. The Software additionally provides warning comments on aspects of the design that will help designers avoid mistakes that could lead to questions from ERP reviewers, and as such alerts Users and Reviewers if specific pertinent issues have been considered as may be required by the rules of a Water Management District; and
B. Licensee desires to acquire a license to use the Software for personal use and Licensor desires to grant Licensee the license. THEREFORE, for valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows:
1.1 Authorized Platform
"Authorized Platform" means the computer or operating system, or both, on which Licensee is personally authorized to use the Software pursuant to this Agreement.
1.2 Authorized Site
"Authorized Site" means a location at which Licensee is personally authorized to use the Software.
"Documentation" means all user manuals and other written material created by Licensor to describe the functionality or assist in the use of the Software.
1.4 License Fee
"License Fee" means the fee to be paid by Licensee to Licensor as consideration for the license granted under this Agreement and the right to use the Software and the Documentation. The License Fee is governed by the terms of the purchase agreement, contract, sales order, invoice or similar document separately entered into by Licensee.
"Software" means the computer program or programs marketed and sold as CyberERPreviewer in object code form only, and the Documentation. Software includes any updates, modification, bug fixes, upgrades, enhancements, or other modifications. It does not include any version of the Software that constitutes a separate product because of differences in function or features.
2. Grant of License
Subject to the terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a personal, nonexclusive, nontransferable license in the Software, to access and use the Software exclusively for the Intended Use on the Authorized Platform and at the Authorized Site and to use the Documentation solely in connection with Licensee's use of the Software.
2.2 License Restrictions
Except as specifically granted in this Agreement, Licensor owns and retains all right, title, and interest in the Software, Documentation, and any and all related materials. This Agreement does not transfer ownership rights of any description in the Software, Documentation, or any related materials to Licensee or any third party. Licensee shall reproduce, install, and render the Software operational only on the Authorized Platform at the Authorized Site. Licensee shall not modify, reverse engineer, or decompile the Software, or create derivative works based on the Software. Licensee may not sell the Software to any person or make any other commercial use of the software. Licensee shall retain all copyright and trademark notices on the Software and Documentation and shall take other necessary steps to protect Licensor's intellectual property rights.
Licensee is not licensed or permitted under this Agreement to do any of the following: (1) allow any other person to use the Products; (2) rent, loan, resell, distribute, or redistribute a copy of the Products to any other person or entity; (3) make the Products available on any file-sharing or application hosting service; (4) electronically send the Product to any other person; (5) copy the printed materials or user documentation accompanying the Product other than as necessary to support the uses permitted above; (6) making the Products available to others via shared access to a single computer, a computer network, or by sharing access information, which includes the Licensee's Username and Password; and (7) reverse engineer, disassemble, decompile, or translate the Products, or otherwise attempt to derive its source code or the source code through which the Products is accessed, or authorize any third-party to do any of the foregoing. The license granted hereunder is personal to the Licensee, and any attempt by the Licensee to transfer any of the rights, duties or obligations hereunder shall terminate this Agreement and be void.
2.3 Reservation of rights and Ownership
The Company's Products are the property of Licensor and subject to applicable patents, copyrights, trade secrets, trademarks and other proprietary rights. The Software is licensed, not sold, to the Licensee for use only under the terms of this Agreement, and the Licensor expressly reserves all rights not expressly granted to the Licensee.
Software Enhancements: Licensor may, at its sole discretion, make improvements to the Software beyond the "as-is" condition. This may include new features and new design templates of forms reflecting other types of retention/detention system designs. Licensor shall reserve the right to adjust the price of annual fee, at the time of renewal of each year.
3. License Fees
3.1 License Fees
In consideration for the License granted to Licensee under this Agreement the Licensee shall pay Licensor the License Fee, as set forth in the purchase agreement, contract, sales order, invoice or similar document separately entered into by Licensee.
Licensor reserves the right to adjust the price of annual fee at the time of renewal of each year.
In addition to other amounts payable under this Agreement, Licensee shall pay any and all federal, state, municipal, or other taxes, duties, fees, or withholding currently or subsequently imposed on Licensee's use of the Software or the payment of the License Fee to Licensor, other than taxes assessed against Licensor's net income. Such taxes, duties, fees, withholding, or other charges shall be paid by Licensee or Licensee shall provide the appropriate authority with evidence of exemption from such tax, duty, fee, withholding, or charge. If Licensor is required to pay any such tax, duty, fee, or charge, or to withhold any amount from monies due to Licensor from Licensee pursuant to this Agreement, Licensee shall promptly reimburse Licensor any such amounts.
3.3 Refund Policy
Annual subscription fees paid to use the software are non-refundable, in whole or in part, except in the possible event of sale of the entire software to an external party, in which case a pro-rated reimbursement shall be made to users who maintain active use and are current on their payment. Licensor shall timely notify Licensee when annual fee renewal is due, granting Licensee up to one (1) week to renew. If
Licensee does not timely renew it shall experience a revocation of access to the Software that is restorable upon appropriate payment of subscription fees.
4. Term and Termination
This Agreement, and the license granted under this Agreement, becomes effective on the date set forth in Section 9.13, below. Unless sooner terminated as set forth herein, the Agreement shall continue in effect until the expiration of Licensor's rights in the Software.
This Agreement will terminate immediately if the Licensee breaches any term of this Agreement. Further, in the event of a termination or expiration of any agreement between the Licensor and a third-party content provider or licensor of all or a part of the Software, the Licensee's right to access and use the Software may also terminate or expire without prior notice to Licensee. A Licensee may terminate this Agreement at any time by notifying the Licensor in writing. Upon receipt of notice of termination from the Licensee, the license and the Licensee's access to the Software shall cease. Upon termination, any refund to which the Licensee may be entitled shall be determined in accordance with the terms contained herein.
4.2 Rights on Termination
Licensor has and reserves all rights and remedies that it has by operation of law or otherwise to enjoin the unlawful or unauthorized use of Software or Documentation. On termination, (a) all rights granted to Licensee under this Agreement cease and Licensee will promptly cease all use and reproduction of the Software and Documentation. Sections 2.1, 5, 6, and 7 will survive termination or expiration of this Agreement as will any cause of action or claim of either party, whether in law or in equity, arising out of any breach or default.
5. Warranties, Disclaimer and Limitations
Licensor hereby warrants to Licensee that (a) Licensor is the owner of the Software and the Documentation or has the right to grant to Licensee the license to use the Software and Documentation in the manner and for the purposes set forth in this Agreement without violating any rights of a third party.
The Licensor warrants that the Software will perform substantially in accordance with the accompanying materials for a period of 1 year (the "Warranty Period") from the date of receipt. If an implied warranty or condition is created by applicable law, and federal or state law prohibits disclaimer of it, you also have an implied warranty or condition, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS LIMITED WARRANTY (1 year). AS TO ANY DEFECTS DISCOVERED AFTER THE WARRANTY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. Some states do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to you. Any supplements or updates to the Software, including without limitation, any (if any) updates provided to you after the expiration of the Warranty Period are not covered by any warranty or condition, express, implied or statutory.
THE WARRANTIES SET FORTH IN SECTION 5.1, ABOVE, ARE IN LIEU OF, AND THIS AGREEMENT EXPRESSLY EXCLUDES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, (a) ANY WARRANTY THAT THE SOFTWARE IS ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION, OR IS COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS; (b) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY; AND (c) ANY AND ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE.
ADDITIONALLY, LICENSOR HEREBY DISCLAIMS ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF RELIABILITY OR AVAILABILITY, OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, OF WORKMANLIKE EFFORT, OF LACK OF VIRUSES, AND OF LACK OF NEGLIEGENCE, all with regard to the Software, and the provision of or failure to provide support or other services, information, software, and related content through the Software or otherwise arising out of the use of the Software. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, AND CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE.
5.3 Remedies on Breach of Warranty
In the event of any breach of the warranty set forth in Section 5.1, Licensee's exclusive remedy shall be for Licensor to promptly replace the defective Software; if Licensor is unable to replace the media within fifteen (30) days of notification by Licensee of a defect, Licensee's sole remedy is to terminate this Agreement, at which time Licensor will refund any and all license or other fees paid by Licensee pursuant to this Agreement.
5.4 Limitation of Liability
LICENSOR IS NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING THE LOSS OF PROFITS, REVENUE, DATA, OR USE OR COST OF PROCUREMENT OF SUBSTITUTE GOODS INCURRED BY LICENSEE OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF LICENSOR OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSOR'S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY LICENSEE TO LICENSOR UNDER THIS AGREEMENT.
5.5 Stormwater Management System Design Criteria
The software is based on an understanding of stormwater management system design criteria for the following Water Management Districts:
SJRWMD: Section B (Surface Water Management Design Aids) of the October 1, 2013 St. Johns River Water Management District Permit Information Manual.
SWFWMD: Appendix B of the October 1, 2013 Southwest Florida Water Management District Environmental Resource Permit Applicant's Handbook Volume II.
FDEP-NW & NWFWMD: Part II of the October 1, 2013 Florida Department of Environmental Protection and Northwest Florida Water Management District Applicant's Handbook Volume II.
SRWMD: October 1, 2013 Suwannee River Water Management District Environmental Resource Permit Applicant's Handbook Volume II
For designs in the St. Johns River Water Management District, the software covers the following design computation of that District: Online and Offline Retention Using Manual Saturated Lateral Flow Method, Online and Offline Retention using the Simplified Analytical Method, Dry Detention Basin Design, Wet Detention with Permanent Pool, Bleed-down orifice and No Littoral Zone and Wet Detention with Permanent Pool, Bleed-down orifice and Littoral Zone.
For designs in the Suwannee River Water Management District, the software covers Online and Offline Retention Using Manual Saturated Lateral Flow Method, Online and Offline Retention using the Simplified Analytical Method, Wet Detention with Permanent Pool, Bleed-down orifice and No Littoral Zone and Wet Detention with Permanent Pool, Bleed-down orifice and Littoral Zone. The Wet Detention With Permanent Pool, Bleed-down orifice and Littoral Zone design option uses a water quality treatment bleed-down volume that is equal to the Runoff From One Inch of Rainfall (1-inch Rainfall). The Wet Detention With Permanent Pool, Bleed-down orifice and No Littoral Zone design option uses the computational criteria and wet detention treatment volume calculation method of the SJRWMD, for this particular type of design. It is Licensee's responsibility to affirm acceptability of each design and these computational methods with officials of the Suwannee River Water Management District prior to using this software to support user's application for an Environmental Resource Permit Application in that District.
The software is not intended for use with "below pavement" retention/detention system design.
For designs in the Southwest Florida Water Management District, the software covers the following design computations: Conservation Design Wet Detention (Alternative 3) With V-Notch, Wet Detention Alternative 1 with Bleed-down Orifice, the St. Johns River Water Management District's Wet Detention Design with Permanent Pool, Bleed-down orifice and No Littoral Zone option, as well as retention basin recovery methods using the Manual Saturated Lateral Flow and Simplified Analytical Methods. It is Licensee's responsibility to confirm the acceptability of these retention basin recovery methods with officials of the Southwest Florida Water Management District prior to using them to support user's application for an Environmental Resource Permit with the SWFWMD.
Design computations for the Northwest Florida Water Management and the Northwest District of the Florida Department of Environmental Protection are included for the following, as allowed by their joint Applicant's Handbook: Online and Offline Retention Using Manual Saturated Lateral Flow Method, Online and Offline Retention using the Simplified Analytical Method, Wet Detention Design with Permanent Pool, Bleed-down orifice and No Littoral Zone and Wet Detention Design with Permanent Pool, Bleed-down orifice and Littoral Zone.
Water Management District rules governing design calculations for retention basin, dry detention basin and wet detention pond designs may change from time to time, and such change is not within the control of Licensor. The Company is under no obligation to revise the software to address water management district rule changes that render the entire software or different aspects of the software obsolete. Failure to update the software to address such rule changes shall not be cause for reimbursement of subscription fees.
5.6 Accuracy of Data Entry and Verification of Land Use
Users have full responsibility for the accuracy and engineering validity of the input data provided to the software. Users further certify that input data is consistent with design plans and construction drawings.
A determination that a project may qualify for a Section 403.814(12), F.S. General (a.k.a. "10/2") Permit is contingent on Licensee's responsibility to additionally confirm that no activities are conducted in, on, or over wetlands or other surface waters; the project is not part of a larger common plan, development, or sale; and that the project does not:
1. Cause adverse water quantity or flooding impacts to receiving water and adjacent lands;
2. Cause adverse impacts to existing surface water storage and conveyance capabilities;
3. Cause a violation of state water quality standards; or
4. Cause an adverse impact to the maintenance of surface or ground water levels or surface water flows established pursuant to s. 373.042, F.S. or a work of the district established pursuant to s. 373.086, F.S. Other issues, such as ensuring that the project has been designed to also meet peak discharge attenuation criteria and address floodplain considerations, as applicable, are also Licensee's responsibility to confirm by scheduling pre-application meetings with appropriate water management district officials to confirm its project's "10/2 Permit" status.
5.7 Soil Survey Data
The software relies on USDA-Natural Resources Conservation Service County Soil Survey Manuscript data for all counties except Brevard, Marion, Alachua, Lake and Osceola, for which "Recent" Web Soil Survey data of the USDA-Natural Resources Conservation Service (NRCS) were used, based on communications with staff of the St. Johns River Water Management District during their beta-testing of the software. Some portions of these five counties are also located in water management districts other than the SJRWMD. In the event that other water management districts require updating the soils data in the software database to reflect the Web Soil Survey data of the USDA-NRCS, the developer may, with time and funds permitting, make an effort to update the soils database as appropriate. Possible loss of use of the software during such periods shall not be grounds for reimbursements of annual fees.
The USDA-Natural Resources Conservation Service County Soil Survey data used in the software may undergo changes that are not under the control of the developer. If and when such changes occur, the developer shall, with time and funds permitting, make an effort to update the soils database as appropriate. Possible loss of use of the software during such periods shall not be grounds for reimbursements of annual fees.
5.8 Changes in State Law
This software was designed to help users determine whether or not a project qualifies for a Section 403.814(12), F.S. General (a.k.a. "10/2") Permit, based on user-provided input data. A determination that a project may qualify for such permit or that the project definitely does not qualify for such a permit is based on user-provided data. The threshold for this type of permit is set by state statutes which may be amended/modified or repealed at the will and pleasure of state legislators. Any such change in the statute will not be cause for automatic update to this software.
5.9 Disruptions of Service
Licensor relies on web hosting by an external third party on whose servers the main software resides. All servers require periodic maintenance during which time there may be temporary loss of service or use of the software. Licensee accepts such occurrence as understandable, and such temporary loss of use shall not be sufficient grounds for reimbursement of payment to the Licensee for product use.
5.10 Updates to the Software
Licensee acknowledges and understands that: (1) the Licensor may, from time to time, elect to update the Software, but the Licensor does not warrant or guarantee that any Software or other information accessed through the Licensor's website(s) will be updated at any time during the term of this Agreement; and (2) the Licensor does not recommend, warrant or guarantee the use or performance of any third-party product or service described in the Software or elsewhere in the Licensor's website(s), nor is the Licensor responsible for malfunction of such products or services due to errors in the Software, the Licensee's negligence or otherwise. Licensee agrees to seek additional information on any third-party product or service from the respective third party. The Licensee covenants that it will use the Software only for its intended use.
6.1 Infringement Indemnity
Licensor indemnifies, defends, and holds Licensee harmless from and against any claims, actions, or demands alleging that the Software infringes any patent, copyright, or other intellectual property right of a third party. If use of the Software is permanently enjoined for any reason, Licensor, at Licensor's option, and in its sole discretion, may (a) modify the Software so as to avoid infringement; (b) procure the right for Licensee to continue to use and reproduce the Software and Documentation; or (c) terminate this Agreement and refund to Licensee all license fees paid Licensor. Licensor shall have no obligation under this Section 6.1 for or with respect to claims, actions, or demands alleging infringement that arise as a result of (a) the combination of non-infringing items supplied by Licensor with any items not supplied by Licensor; (b) modification of the Software or Documentation by Licensee or by Licensor in compliance with Licensee's designs, specifications, or instructions; (c) the direct or contributory infringement of any process patent by Licensee through the use of the Software; and (d) continued allegedly infringing activity by Licensee after Licensee has been notified of the possible infringement.
6.2 Other Indemnity
Licensee is responsible and indemnifies and holds Licensor harmless for any and all losses, liability, or damages arising out of, or incurred in connection with, Licensee's use or reproduction of the Software pursuant to this Agreement.
6.3 Condition to Indemnification
Should any claim subject to indemnity be made against Licensor or Licensee, the party against whom the claim is made agrees to provide the other party with prompt written notice of the claim. Licensor will control the defense and settlement of any claim under Section 6.1 and Licensee will control the defense and settlement of any claim under Section 6.2. The indemnified party agrees to cooperate with the indemnifying party and provide reasonable assistance in the defense and settlement of such claim. The indemnifying party is not responsible for any costs incurred or compromise made by the indemnified party unless the indemnifying party has given prior written consent to the cost or compromise.
Licensee acknowledges that the Software and Documentation, and all information relating to the business and operations of the Licensor that Licensee learns or has learned during or prior to the term of this Agreement, may be the valuable, confidential, and proprietary information of the Licensor. During the period this Agreement is in effect, and at all times afterwards, Licensee, and its employees, contractors, consultants, and agents, will (a) safeguard the confidential information with the same degree of care that it uses to protect its own confidential information; (b) maintain the confidentiality of this information; (c) not use the information except as permitted under this Agreement; and (d) not disseminate, disclose, sell, publish, or otherwise make available the information to any third party without the prior written consent of Licensor. In the event that Licensor shall receive any confidential and proprietary information of Licensee during or prior to the term of this Agreement, Licensor, and its employees, contractors, consultants, and agents shall have the same obligation to protect such information as apply to the Licensee as provided in the previous sentence.
7.2 Limitations on Confidentiality Restrictions
Section 7.1 does not apply to any information that (a) is already lawfully in the receiving party's possession (unless received pursuant to a nondisclosure agreement); (b) is or becomes generally available to the public through no fault of the receiving party; (c) is disclosed to the receiving party by a third party who may transfer or disclose such information without restriction; (d) is required to be disclosed by the receiving party as a matter of law (provided that the receiving party will use all reasonable efforts to provide the disclosing party with prior notice of such disclosure and to obtain a protective order therefor); (e) is disclosed by the receiving party with the disclosing party's approval; and (f) is independently developed by the receiving party without any use of confidential information. In all cases, the receiving party will use all reasonable efforts to give the disclosing party fourteen (14) days' prior written notice of any disclosure of information under this agreement. The parties will maintain the confidentiality of all confidential and proprietary information learned pursuant to this Agreement for a period of (2) years from the date of termination of this Agreement.
7.3 Injunctive Relief for Breach
Licensor and Licensee acknowledge that any breach of Section 7.1 by a receiving party will irreparably harm the disclosing party. Accordingly, in the event of a breach, the disclosing party is entitled to promptly seek injunctive relief in addition to any other remedies that the disclosing party may have at law or in equity.
8. Export Controls and Restricted Rights
8.1 Export Controls
The Software, the Documentation, and all underlying information or technology may not be exported or re-exported into any country to which the U.S. has embargoed goods, or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. Licensee shall not export the Software or Documentation or any underlying information or technology to any facility in violation of these or other applicable laws and regulations. Licensee represents and warrants that it is not a national or resident of, or located in or under the control of, any country subject to such export controls.
Unless in compliance with applicable law and specifically authorized in writing by the Licensor prior to any Software access, the Licensee shall not export the Software under any circumstances whatsoever. In any case, Licensee will indemnify and hold the Licensor harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including reasonable attorney's fees) arising from, or relating to, any breach by the Licensee of the Licensee's obligations under this section.
8.2 Restricted Rights
The Software and Documentation are provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1) of the Commercial Computer Software -Restricted Rights clause at FAR 52.227-19, subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, or subparagraph (d) of the Commercial Computer Software -Licensing at NASA FAR supplement 16-52.227-86, or their equivalent, as applicable.
Licensee may not assign, sublicense, or transfer Licensee's rights or delegate its obligations under this Agreement without Licensor's prior written consent. This Agreement shall be binding upon the successors and assigns of the parties to this Agreement.
9.2 Entire Agreement
This Agreement, along with the Exhibits attached and referenced in this Agreement, constitutes the final and complete understanding between the parties, and replaces and supersedes all previous oral or written agreements, understandings, or arrangements between the parties with respect to the subject matter contained in this Agreement.
This Agreement may not be modified or amended except in a writing signed by an authorized officer of each party. The failure of either party to enforce any provision of this Agreement shall not be deemed a waiver of the provisions or of the right of such party thereafter to enforce that or any other provision.
Except as otherwise provided in this Agreement, notices required to be given pursuant to this Agreement shall be effective when received, and shall be sufficient if given in writing, hand-delivered, sent by facsimile with confirmation of receipt, sent by First Class Mail, return receipt requested (for all types of correspondence), postage prepaid, or sent by overnight courier service and addressed as follows:
To Licensor: 124 Victor Road, Lakeland, FL 33809. Attn: David Sua Email: [email protected]
Phone: (863) 279-4111
Phone Email: ________________
Without the prior written consent of the other party, neither party shall disclose the terms and conditions of this Agreement, except disclosure may be made as is reasonably necessary to the disclosing party's bankers, attorneys, or accountants or except as may be required by law.
9.6 Independent Contractor
Nothing in this Agreement shall be deemed to create an employer/employee, principal/agent, or joint
venture relationship. Neither party shall have the authority to enter into any contracts on behalf of the other party.
9.7 Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. Any legal suit, action or proceeding arising out of, or relating to this Agreement, shall be commenced in a federal court in Florida or in state court in Polk County, Florida, and each party hereto irrevocably submits to the personal and exclusive jurisdiction and venue of any such court in any such suit, action or proceeding and waives any right which it may have to transfer or change the venue of any such suit, action or proceeding, except that in connection with any suit, action or proceeding commenced in a state court, each party retains the right to remove such suit, action or proceeding to federal court to the extent permissible. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
In case any provision of this Agreement is held to be invalid, unenforceable, or illegal, the provision will be severed from this Agreement, and such invalidity, unenforceability, or illegality will not affect any other provisions of this Agreement.
In the event of any dispute between the parties arising out of this Agreement, the dispute shall be resolved by arbitration under the rules of the American Arbitration Association by an arbitrator agreed upon in writing by the parties. In the event the parties cannot agree upon the choice of an arbitrator, each party shall appoint one individual representative and the two party representatives shall, between themselves, chose an arbitrator.
9.10 Attorney Fees
In the event of any dispute between the parties arising out of this Agreement, the prevailing party shall be entitled, in addition to any other rights and remedies it may have, to recover its reasonable attorney fees and costs.
9.11 Force Majeure
Licensor is not responsible for occasional loss of use due to acts of God, weather conditions, or sabotage that could interrupt, disrupt, or disable internet service.
It is recommended that Licensee review the Licensor's website periodically for new or additional terms and changes to this Agreement. Licensor has the right to change or add to the terms of this Agreement, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Software, including but not limited to, terms, technical support options, and other product-related policies and features, at any time and upon notice by any means Licensor determines in its discretion to be reasonable. Licensee's continued use of the Software after Licensor's publication of any such changes shall constitute Licensee's acceptance of this Agreement as modified.
9.13 Effective Date
The effective date of this Agreement shall be ____________________.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date written above.
By: David Sua, Managing Member