ADVANTAGE MASTER SUBSCRIPTION LICENSE
AGREEMENT
ADVANTAGE
TERMS OF USE:
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BY CLICKING THE
"I ACCEPT" BUTTON DISPLAYED AS PART OF THE ORDERING PROCESS, YOU
AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT")
GOVERNING YOUR USE OF ADVANTAGE'S ONLINE SERVICE, INCLUDING OFFLINE
COMPONENTS (COLLECTIVELY, THE "SERVICE"). IF YOU ARE ENTERING INTO
THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT
THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS,
IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO
SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH
THESE TERMS AND CONDITIONS, DO NOT SELECT THE "I AGREE" BUTTON AND
YOU MAY NOT USE THE SERVICE.
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This Master Software License Agreement (the
“Agreement”'} is made this day (the “Effective
Date”·of this Agreement), between GENESIS GLOBAL TECHNOLOGIES,
authors of Advantage (hereinafter "GENESIS"), with a principal place
of business located at
2161
McGregor Blvd, Suite E, Fort Myers, FL 33901;
and you.
The parties hereto agree as follows:
1. Software Description
The licensed products consist of the access to
web software program(s) described in Exhibit A hereto, together with the
“Software Documentation” (as hereafter defined) and all other
related materials provided to Customer pursuant to this Agreement (collectively
the “Software”). For purposes of this Agreement, “Software
Documentation” shall mean the user documentation
for the web software programs licensed hereunder, which is generally made
available to all users licensing such access to computer programs. A License
authorizes Customer to access and use the specific program identified with all
authorized log-on users connected to a single account. Each user requires a
separate and unique License and Fee.
2. Subscription License
Subject to the terms of this Agreement, GENESIS
hereby grants Customer a perpetual, personal, nontransferable, non-assignable
and non-exclusive subscription license to access the use of Advantage system as
more fully specified in Exhibit A and B attached hereto and incorporated
herein. The term shall be for a period of one year subject to renewal,
termination, and modification as further provided herein, beginning upon
execution and delivery by all parties of this agreement and the initial monthly
Licensing Fee per user.
3. Subscription
License Fee
3.1 Customer will pay the License Fee per user
set forth in Exhibit A hereto. The initial monthly License Fee per
user must be paid upon execution of this agreement. Thereafter the total
monthly License Fee must be paid in advance by the first day of the month prior
to the month of service. Customer agrees to promptly pay the fee and other
amounts hereunder when due. Any sums remaining unpaid fifteen (15) days after
the due date shall be subject to termination of service and shall bear interest
from the due date until paid at the lesser rate of one and one-half percent
(1-1/2%) per month or the highest rate permitted under applicable law.
Customer agrees to pay all personal property, sales, use and other taxes and
assessments imposed by any governmental body upon or in connection with this
Agreement, the Software or the License thereof, or the services provided
hereunder (other than taxes imposed on GENESIS' income).
3.2 In the event, Customer elects to increase
the number of access users of the Software licensed under this Agreement or
purchase additional services; adding, or
removing a License must be requested in writing by letter, fax or email to 239-337-4641
(fax) or support@developersadvantage.net. A specific single user License may be
discontinued at any time but refunds will not be issued. A new single user
License may be added at any time during the month. The new single user License Fee will be
pro-rated for the current month.
Requests for new single user License will be completed within a
reasonable time after written request. Customer shall if requested by GENESIS
execute an amendment or addendum to this Agreement to evidence the increase in
services requested. The definition
of Software shall include any software products licensed under an amendment or
addendum except as provided in such amendment or addendum.
3.3 Customer agrees that upon reasonable notice,
GENESIS may audit, or may select an independent auditor to audit Customer's
records solely for the purpose of determining Customer’s compliance with
the terms and conditions of this Agreement. If such examination reveals that
the Customer is in violation of Section 2 of this Agreement, Customer shall
reimburse GENESIS for the reasonable fees and expenses of such audit together
with further damages including but not limited to user fees that would have
been due GENESIS had the user been properly reported and added to the
agreement. In addition in said event the breach shall be considered a material
default of this Agreement and GENESIS shall have the immediate right to
terminate this Agreement without waiver of other rights and remedies for such
default. Such audits shall be conducted at a time agreeable to both parties and
shall be limited to normal business hours. Customer further agrees to maintain
records sufficient for GENESIS to verify compliance with the provisions of this
Agreement. This audit right shall be effective until two (2) years following
the termination of this Agreement.
4.
Confidentiality/Restrictions
on Use
Customer acknowledges that title to the
Software, all maintenance modifications, copies and enhancements thereto and
thereof, and all proprietary rights therein will be and will remain the sole
property of GENESIS. Customer acknowledges that it has no proprietary interest
in or right to use the Software except strictly in accordance with the terms of
the license granted in this Agreement, which interest does not include any
rights of ownership in the Software. Customer agrees that it will make no
statements claims or representations nor take any action inconsistent with
GENESIS' ownership of the Software.
Except as provided for in this Agreement,
Customer further agrees that:
4.1 During the term of the License and
thereafter, it will hold the Software in strict confidence, it will not
disclose or otherwise make the Software or any part thereof available to any
third party directly or indirectly, and it will take all reasonable steps and
precautions to maintain the confidentiality of the Software.
4.2 It will not alter or remove or permit to be
altered or removed from any item included in the Software, any copyright
notice, or any other notice placed thereon by GENESIS indicating the
confidential nature thereof.
4.3 It will restrict all use of the Software and
the information provided hereunder solely and strictly to the use defined and
granted in the license and will not use any information in a tangible or intangible
form which has been or may be delivered or disclosed to Customer or Customer's
employees by GENESIS for the purpose of creating or attempting to create, or
permitting others to create, the Software or any part of the Software and
documentation included as a part thereof.
4.4 It will restrict all use of the Software and
the information provided hereunder for lawful purposes. Transmission or storage
of any information, data or material in violation of any U.S. Federal or state
regulation or law is prohibited. This includes but is not limited to material
protected by copyright, trade secret or any other statue, threatening material
or obscene material.
4.5 It will use the Software solely for internal
use and not for timesharing arrangements, outsourcing arrangements or otherwise
to process the data of third parties.
4.6 It will use one access Subscription License
per individual user.
4.7 It will not disclose any of the terms,
conditions, and/or fee amounts of this Agreement to any third party, unless
required to do so by order of any court or governmental authority of competent
jurisdiction.
All rights with respect to the Software not
expressly granted to Customer remain in GENESIS. GENESIS agrees not to
transmit, sell, or distribute by any means any Customer data held in their
Software system being licensed hereunder.
Customer data stored within Advantage is the
property of the Customer. Upon termination of this agreement, any data
will be provided to the Subscriber pending settlement of any past due
payments. Data export will be
subject to a processing fee of $50.
The provisions of this Section 4 shall survive
the termination of this Agreement.
5.
Warranties
and Limitations
GENESIS warrants as follows:
5.1 GENESIS has full power and authority to
grant the rights granted under this Agreement to Customer with respect to the
Software without the consent of any other party. The license to, and use of the
Software by the Customer will not in any way constitute an infringement or other
violation of any United States copyright, trade secret, trademark, patent,
invention, proprietary information or nondisclosure rights of any third party.
5.2 GENESIS exercises no control over the
contents of the information passing through the software. GENESIS makes
reasonable effort to safeguard data - will backup data daily, and provide
connectivity to the Internet. However, GENESIS is not responsible for damages
suffered, data loss, lost connectivity due to unforeseen circumstances and
conditions or service interruptions caused by any cause, unless it is a result
of GENESIS’ sole gross negligence outside of the above safeguards. GENESIS does not warrant that the
operation of the Software will be uninterrupted or error-free. GENESIS will
correct nonconformities within a reasonable period of time, or at its option,
either provide a workaround which avoids a material
error or accept return of the Software and refund the applicable License Fee
whereupon this Agreement shall be terminated. The aforementioned is GENESIS'
sole obligation and Customer's sole remedy resulting from such nonconformity.
5.3 GENESIS’ EXPRESS WARRANTIES CONTAINED
IN THIS SECTION 5 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. IN NO EVENT SHALL GENESIS BE
LIABLE FOR LOST PROFITS OR OTHER INCIDENTAL OR CONSEQUENTIAL, INDIRECT,
SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES WHATSOEVER.
GENESIS' TOTAL LIABILITY FOR TORT (INCLUDING, BUT NOT LIMITED TO NEGLIGENCE),
CONTRACT AND OTHER DAMAGES SHALL NOT EXCEED THE LICENSE FEE PAID BY CUSTOMER
FOR THE PARTICULAR SOFTWARE PROGRAM GIVING RISE TO THE CLAIM FOR, OR ALLEGEDLY
CAUSING THE, DAMAGES. GENESIS SHALL NOT BE LIABLE FOR ANY CLAIM OR DEMAND
AGAINST CUSTOMER BY ANY THIRD PARTY EXCEPT FOR THE INDEMNIFICATION SET FORTH IN
SECTION 8 HEREOF. CUSTOMER'S REMEDIES UNDER THIS AGREEMENT OR AT LAW OR IN
EQUITY ARE LIMITED TO THOSE SET FORTH IN SECTIONS
5, 6, AND 7.
5.4 None of the above warranties will apply if
unauthorized modifications are made to the Software by any party other than
GENESIS, or the failure to conform to the warranty is otherwise caused by the
Customer.
5.5 Each party expressly warrants and represents
that no promise or agreement, which is not expressed herein has been made to
the other party in executing this Agreement. Each party further warrants that
it is relying on its own judgment and is not relying upon any statement or representation
of any agent of the other party.
6.
Maintenance,
Enhancements, Training & Other Services
6.1 Throughout the term of this Agreement during
GENESIS normal working hours, GENESIS shall provide Customer the following
support services, subject to availability of staff by GENESIS and subject to
the conditions set forth below so long as Support fees are paid by Customer as
established by GENESIS and set forth in Exhibits A and B.
(1) GENESIS shall correct errors, defects and
malfunctions of the Software in a workmanlike manner within a reasonable period
of time and provide such other corrections and solutions as are necessary to
keep the Software conforming substantially to the Software Documentation
("Maintenance").
(2) Provide telephone support.
(3)
Provide new releases and updates to the Software as they become generally
available.
(4) Provide improvements and enhancements to the
Software when not separately priced and marketed.
(5) Provide training to Customer’s staff.
(6) Provide Customer backup CD of their database
subject to a processing fee of $50 per incident.
6.2 The Licensing Fees and the Support Fees set
forth in Exhibits A and B are subject to annual
increases provided GENESIS gives written notice to Customer of the new rates
prior to the end of any term of this agreement. The Support Fee shall be billed
monthly and payable upon invoicing but no later than thirty days.
6.3 Training, Maintenance and telephone support
are available only for the most current version of the Software and only for
those parts of the Software, which have not been affected by any modification
or merger with third party or custom computer programs.
6.4 In order to receive Support, Customer shall
advise GENESIS of a suspected failure and submit all necessary documentation
for determination by GENESIS. In the event that it is determined that the
problem is not a failure of the Software to conform with the express warranty
set forth in Section 5 of this Agreement, Customer shall pay GENESIS for its efforts
based upon GENESIS' then standard hourly billing rates plus reasonable travel,
living and out-of-pocket expenses.
6.5 Should further services of GENESIS be
requested by Customer for the installation of the Software or Software
enhancements, training, reports creation, or forms composition, such services
shall be provided under separate agreements for an additional charge.
6.6 In the event GENESIS provides Support
services at the request of Customer, such additional services shall be provided
at GENESIS' current rates in effect for such services, on an "AS IS"
BASIS WITHOUT EXPRESS OR IMPLIED WARRANTY and the Customer agrees to pay all
reasonable travel, living and out-of-pocket expenses incurred by GENESIS in
providing such services.
6.7. Travel Expenses. Travel expenses for implementation,
consulting, education or support outside of southwest Florida will be billed at ½ rate,
plus actual expenses for hotel, food, transportation and/or mileage ($.39/mile
as determined by Mapquest).
7. Term
and Termination
7.1 The initial term of this agreement shall be
for one year commencing upon execution and delivery of the initial Licensing
Fee and automatically renewing for successive thirty (30) day terms thereafter
unless terminated by either party’s written notice at least thirty (30)
days before the end of the then-current term and/or in accordance with this
Paragraph 7. If terminated, this agreement ends on the last day of the
then-current term. The Licensing
Fees and the Support Fees set forth in Exhibits A
and B are subject to annual increases provided GENESIS gives written notice
to Customer of the new rates prior to the end of any term of this agreement.
7.2 This Agreement may be terminated by GENESIS,
upon the occurrence of any of the following events of default.
(1)
If any sum of money owed by Customer hereunder is not paid within fifteen (15)
days of its due date;
(2) If any breach occurs under any of the
confidentiality provisions set forth in Section 4 hereof; or
(3)
if any material breach by Customer occurs as to any
other term of this Agreement.
In the event of any such default, GENESIS shall
have the option to thereafter terminate this Agreement and the license granted
herein without further notice of termination to Customer. Upon such termination
all sums owed by Customer and unpaid as of the date of such termination shall
become immediately due and payable to GENESIS.
7.3 This Agreement may be terminated by
Customer, in the event of a breach by GENESIS of any warranty expressly set
forth in Section 5 hereof or a material breach by GENESIS of any other term or
condition of this Agreement and GENESIS shall fail to cure such breach within
thirty (30) days after written notice of such breach is given by Customer to
GENESIS. In the event of any such default, Customer shall have the option to
thereafter terminate this Agreement by giving notice of termination to GENESIS
immediately.
7.4 This Agreement may be terminated by Customer
or GENESIS, at the end of any annual period by providing the other party
written notice thirty (30) days prior to end of the term.
7.5 Customer agrees that upon termination of
this Agreement, Customer shall not use the Software and shall return to GENESIS
the original and all copies of such Software within ten (10) days after such
termination. Due to the nature of the Software and the need for its protection
as a trade secret and confidential proprietary information, time is of the
essence in its return, and in the event of Customer’s failure to cease
use of, or return the Software within the time provided herein, Customer agrees
that GENESIS shall be entitled to obtain injunctive relief to prohibit such use
and/or require such return and to recover its reasonable attorneys fees and
costs incurred in obtaining such injunctive relief and liquidated damages of US
$1,000 per day until the Software is returned.
8.
Indemnification
8.1 GENESIS does hereby indemnify and shall hold
harmless Customer against all liability to third parties (other than liability
which is the fault of Customer) arising from the violation of any United States
third-party trade secrets, proprietary information, trademark, copyright, or
patent rights by the Software; provided Customer promptly notifies GENESIS in
writing of any claim of such violation and fully cooperates with GENESIS in the
defense of such claim at no cost to Customer. GENESIS shall conduct the defense
and any settlement negotiations in any such third-party action arising as
described herein. This indemnification is limited to the Software in the form
delivered to the Customer and does not cover claims arising from modifications
whether or not expressly authorized by GENESIS or use of the Software in
combination with software or other items not provided by GENESIS.
8.2 If a third-party claim causes Customer's
quiet enjoyment and use of the Software to be seriously endangered or
disrupted, GENESIS shall, at GENESIS’ sole option;
(1) replace the
Software, without additional charges, with a functionally equivalent and non·
infringing product; or
(2) modify the Software
to avoid the infringement; or
(3) obtain a license
for the Customer to continue use of the Software and pay for any additional fee
required for such license; or
(4) terminate this
Agreement.
The obligations of GENESIS set forth in Sections
8.1 and 8.2 above are GENESIS’ sole obligations and Customer's sole
remedy with respect to an liability arising from the
violation or alleged violation of any third party trade secrets, proprietary
information, trademark, copyright, or patent rights by the Software or in
connection with the licensing of the Software.
8.3 Indemnification by Customer. Customer does
hereby indemnify and hold GENESIS harmless against any and all liability
awarded against GENESIS based upon or relating to the products or any services
offered by Customer involving the use of the Software, the performance or
non-performance of such products or services, or misrepresentations or
commitments made by Customer, its employees or its agents which are beyond the
scope and control of GENESIS.
9.
Notices
Any Notices required or permitted to be given
under the terms of this Agreement shall be deemed given upon receipt by the
other party at the address shown in the preamble to this Agreement or at such
address as such party from time to time may indicate by written notice given to
the other party hereto. Any such notice given shall be deemed effective upon
the earlier of actual receipt or three (3) days after deposit in the U.S. Mail,
postage pre-paid.
10. Miscellaneous Provisions
10.1 This Agreement shall be binding upon and
inure to the benefit of the parties hereto, their successors, assigns, and
legal representatives; provided however that Customer shall not have the right
to assign the License for any reason. The License may not be transferred or
used by anyone other than the Customer.
10.2
In the event either party initiates action to enforce his or its rights
hereunder, the substantially prevailing party shall recover from the substantially
nonprevailing party its reasonable expenses, court
cost and reasonable attorney’s fees, whether suit be
brought or not. As used herein,
expenses, court costs and attorney’s fees include expenses, court costs
and attorney’s fees incurred in any appellant proceedings. All such expenses shall bear interest at
the highest rate allowable under the laws of the State of Florida from the date the substantially
prevailing party pays such expenses until the date the substantially nonprevailing party repays such expenses. Expenses incurred in enforcing this
paragraph shall be covered by this paragraph.
10.3 This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Florida without regard to the conflict of laws rules of Florida. All judicial
proceedings regarding any dispute and/or controversy relating to this Agreement
and the rights and obligations arising therefrom
shall be initiated in a state or federal court sitting in Lee County, Florida.
10.4 Should any of the parties' obligations
under this Agreement be found illegal or unenforceable in any respect, such
illegality or unenforceability shall not affect the other provisions of the
Agreement, all of which shall remain enforceable in accordance with their
terms.
10.5 The parties shall not be deemed to waive
any of their rights or remedies under this Agreement unless such waiver is in
writing and signed by the party to be bound. No delay or omission on the part
of either party in exercising any right or remedy, no matter how often
repeated, shall operate as a waiver of such right or remedy or any other right
or remedy. A waiver of any right or remedy on anyone occasion shall not be
construed as a bar to or waiver of such right or remedy or any other right or
remedy on any future occasion. The terms of this Agreement shall not be amended
or changed by the terms of any purchase order or acknowledgement except as
specifically provided herein, even though GENESIS may have accepted or signed
such document.
10.6 Trademarks owned or licensed by GENESIS are
not licensed under the terms of this Agreement.
10.7 All amounts are stated and payable in United States
dollars.
10.8 Customer's payment obligations and the
provisions of Sections 3.3, 4, 5.3, 7.5 and 8.3 and any other provision of this
Agreement, which by its terms is intended to so survive, shall survive any
expiration or termination of this Agreement.
10.9 In no event shall either party be liable
one to the other, for any delay or failure to perform hereunder (other than
failure to pay amounts owed), which delay or failure to perform is due to
causes beyond the control and without the fault or negligence of the party
claiming excusable delay.
11. Acceptance: Entire Agreement
This Agreement shall not be effective until
accepted in writing by an authorized officer of GENESIS. This Agreement,
including Exhibits, all of which are attached, constitute the entire Agreement
and understanding between GENESIS and Customer concerning the subject matter
hereof, and supersedes and terminates all prior written and oral agreements,
proposals, promises, and representations of the parties respecting the Software
covered by this Agreement. In the event of any conflict or ambiguity between
any Exhibit and the terms and conditions set forth in Sections 1 through 11 of
this Agreement the terms and conditions in Sections 1 through 11 shall control.
EXHIBIT A
PRODUCTS AND SUBSCRIPTION LICENSES FEES
The licensed products consist of the access to Advantage
and Advantage . Lite.
1.
Subscription
billing will begin on the Go Live day and will be billed monthly 15 days in
advance.
2.
All
subscriptions for Advantage are billed in advance. The subscription to Advantage is billed
on the 15th of the month and is payable by the first day of the following
month. There is a 15-day grace
period for payment. Unpaid service
will be disabled on the 16th day of the month.
3.
Outstanding
invoices must be paid in full to reinstate the Advantage service. Reinstatement is subject to a $100.00
fee.
GGT reserves the right to audit services
provided. Without prejudice to any
other rights, GGT may cancel service if you do not abide by these terms and
conditions, in which case you will forfeit all access to Advantage and all of
its component parts. Conditions of
this agreement are subject to change as provided in this Agreement.
Monthly Subscription
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Advantage Monthly Subscription Rates
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Advantage Lite
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Advantage Full
|
|
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$357/month
(includes 3 users)
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$995/month
(includes 5 users)
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Additional
Users – per user
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#
Users
|
Subtotal
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____ 3/5-20 Users
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$119
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$199
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________
|
________
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____ 21-40
Users
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$109
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$179
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________
|
________
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____ 41-75
Users
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$99
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$149
|
________
|
________
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____ 76-100
Users
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$89
|
$129
|
________
|
________
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____ 100+
Users
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$79
|
$119
|
________
|
________
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EXHIBIT B
SUPPORTS SERVICES OFFERED AND INITIAL
FEES
Throughout the term of this Agreement during
GENESIS normal working hours, GENESIS shall provide Customer the following
support services, subject to availability of staff by GENESIS and subject to
the conditions set forth below so long as Support fees are paid by Customer as
established by GENESIS and set forth in this Agreement.
Advantage professional services are available
Monday through Friday, 8:00 am to 5:30 pm EST and are subject to availability
of staff and schedule availability.
Professional Services consist of Implementation
Services, Training Services, Support and Helpdesk Services, Custom Feature
Development, Custom Report Development and Data Entry.
Professional Services are offered in packages
and selections, or in discounted pre-paid VIP Time Blocks (see VIP Block Rate
Contract). VIP Discount Rates apply
only to time blocks purchased in advance of the time being consumed.
Unused time will be kept on account.
Should this
Agreement terminate before Customer’s block of hours is used up, refunds
shall be issued with a written request.
Customer’s unused balance will be refunded minus the discount
provided for the VIP block purchase and any damages sustained by GENESIS as a
result of any breach by Customer of this Agreement. (A refund would nullify the
discount level provided for the block of time originally purchased. Genesis
would pro-rate the used portion of the hours to the appropriate discount level, based on the amount of hours used.)
All estimates given for service time are an
estimate only. Customer will only
be billed for actual time spent.
Additional time may be required for third party applications
configuration, travel, and services requested that are outside of the project
scope. Data entry time is billed at
½ rate.
1.
All Professional Services for Advantage are billed weekly
and are payable net 30 days.
2.
Past due accounts will have all services (including
implementation, training and support) suspended. Outstanding invoices must be paid in
full to reinstate Advantage Professional Services.
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GO LIVE Implementation Success Strategies
|
|
Hours
|
Investment
|
Prepay
Discount
|
With
Discounts
|
|
Pay as
you go
|
$140/hour
|
--
|
$140/hour
|
|
25 hours
|
$
3500
|
5%
|
$3325
|
|
50 hours
|
$
7000
|
7%
|
$6510
|
|
100 hours
|
$
14000
|
10%
|
$12600
|
|
200 hours
|
$
28000
|
15%
|
$23800
|