Terms and Conditions
SOFTWARE LICENSE AND HOSTING AGREEMENT
1. Definitions
1.1 Defined Terms. In addition to other capitalized terms defined throughout this Agreement, the following terms shall have the meanings provided below:
a. "Content" shall mean the text and other materials, if any, from discussions and message boards that are published on the Web Site by Licensee and its clients that will form a part of the Licensee's data base.
b. "Licensee Documentation" shall mean any documentation which Licensor provides to Licensee for the purpose of supporting Licensees of the DeltaGate Software.
c. "Licensor's Trademarks" shall mean "DeltaGate" and any future trademarks owned or licensed by Licensor for use in promoting the DeltaGate Software.
d. "Servers" shall mean the physical machine or machines on which the DeltaGate Software will be installed.
e. "Web Site" shall mean any information and communication service established by Licensee on the World Wide Web.
f. "DeltaGate Software" or "Software" shall mean the object code versions of all the Software described in this document and provided to Licensee and related DeltaGate Software Documentation as such Software and Documentation may be updated from time to time hereunder, including DeltaGate Software Upgrades.
g. "DeltaGate Software Documentation" or "Documentation" shall mean any documentation, specifications or technical information or materials which Licensor either supplies generally in conjunction with the DeltaGate Software, or supplies specifically in accordance with this Agreement.
h. "DeltaGate Software Upgrades" or "Upgrades" shall mean upgrades, updates and/or enhancements of the DeltaGate Software as created and/or developed by or for Licensor which are marketed under the same product number and nomenclature or which are marketed as a replacement for the DeltaGate Software.
i. "Hosting Services" shall mean the act of running Licensor's Software on Licensor's servers on behalf of Licensee.
j. "Gateway and Merchant Fees" shall mean fees charged by banks or credit card processors generated as a result of Licensee's e-commerce activities.
2. Grant of Rights
2.1 License. Subject to the terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee, and Licensee hereby accepts from Licensor, a limited, non-exclusive, non-transferable, license to:
a. use the DeltaGate Software, hosted by Licensor, for all legal uses contemplated by this Agreement.
b. permit Licensee and its clients and end users to access the DeltaGate Software through the Web Site and use the DeltaGate Software, for all legal uses contemplated by this Agreement.
c. permit Licensee personnel to access the DeltaGate Software in connection with creating and testing modifications to the DeltaGate Software prior to introducing it to the Web Site;
2.2 Restrictions on License. The license granted in Section 2.1 above shall be limited as follows:
a. except as permitted hereunder, Licensee shall not copy or reproduce the DeltaGate Software nor distribute all or any portion of the DeltaGate Software to any person or entity;
b. Licensee shall not reverse engineer, decompile, or otherwise attempt to determine the source code or algorithms of the DeltaGate Software; and
c. Licensee shall not modify the DeltaGate Software source code.
2.3 Trademarks. Licensor hereby grants Licensee the non-exclusive right to display and use Licensor's Trademarks. Licensee shall assure that the use of Licensor's Trademarks is per Licensor's express specifications. Licensee agrees that Licensor's Trademarks shall remain the sole property of Licensor and that Licensee will obtain no proprietary interest by virtue of this Agreement in any of Licensor's Trademarks.
2.4 Transfer of Agreement. This Agreement may not be transferred without approval by Licensor and Licensee. Approval will not be unreasonably withheld.
2.5 Ownership of Content. The DeltaGate database containing all content including users, messages, and other data, is the property of Licensee. A copy of the database or a formatted import text file containing all the database information will be made available to Licensee upon request.
3. Delivery of Software and Services
3.1 Delivery of the DeltaGate Software. Licensor shall deliver to Licensee the DeltaGate Software by means of installing it on a Server operated by Licensor and providing FTP and sysop access to Licensee. At the option of Licensor, Licensor may replace FTP access with an HTTP upload protocol that provides similar functionality.
3.2 Delivery of DeltaGate Software Upgrades. From time to time, Licensor may in its sole discretion design or develop DeltaGate Software Upgrades. Licensor shall deliver to Licensee such DeltaGate Software Upgrades by means of installing them on the Server operated by Licensor. Licensor will provide DeltaGate Software Upgrades to Licensee during the term of this Agreement at no additional charge. Licensor reserves the right to modify the database design and structure with any subsequent software release. In the event of such modification, Licensor shall ensure that new versions provide Licensee with full access to all database content created under previous releases. Licensor will provide to Licensee with each DeltaGate Software Upgrade updates to the Licensee Documentation and the DeltaGate Software Documentation incorporating the changes effected by such upgrade.
3.3 Technical Support and Services. Licensor shall provide the technical support services specified in Exhibit A during the term of this Agreement.
4. Consideration
4.1 Payment of Fees. In consideration of the services to be provided, Licensee shall pay Licensor the license and service fees described on Exhibit B. These fees will not be increased during the first six months of service. Thereafter, Licensor must give sixty days advance notice prior to changing the fee structure or amounts.
5. Term And Termination
5.1 Term. The initial term of this Agreement shall commence on the Effective Date stated in the first paragraph above or as mutually agreed to by the parties and documented in a written document incorporating this Agreement and shall continue for a period of one (1) month thereafter. Upon expiration of the initial term, the Agreement shall automatically renew for subsequent one month periods unless terminated by either party. In order to terminate the Agreement during a subsequent period, the terminating party must give written notice to the other party at least fourteen (14) days prior to expiration of the renewal date.
5.2 Termination for Cause. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by sending the breaching party written notice of the nature of such breach and by providing the breaching party an opportunity to cure such breach within fourteen (14) days. Non-payment shall be considered a material breach. If the material breach is not cured within fourteen (14) days of written notification, this Agreement will be automatically terminated.
5.3 Effect of Termination. Upon termination of this Agreement, all of the licenses granted to Licensee shall immediately terminate. Each party shall return to the other party any and all information received from the other party pursuant to this Agreement that has been marked "Confidential."
5.4 Effect of Breach. No breach by Licensee shall relieve it of its obligation to pay the fees in accordance with Section 4.1 hereof. The remedies set forth in this Agreement are cumulative and not exclusive. Each party shall be entitled to pursue, in connection with any breach, such remedies as are provided by law or equity in connection with such breach.
6. Notices
6.1 Notices. Any notice or other communication to be given hereunder shall be in writing and shall be: (i) personally delivered; (ii) transmitted by postage prepaid registered or certified airmail, return receipt requested; (iii) deposited prepaid with a nationally recognized overnight courier service; or (iv) by facsimile or e-mail, the receipt of which is confirmed in writing. Unless otherwise provided herein, all notices shall be deemed to have been duly given on: (a) the date of receipt (or if delivery is refused, the date of such refusal) if delivered personally or by courier; or (b) upon voice confirmation of receipt of facsimile or e-mail. Either party may change its address for purposes hereof on not less than three (3) days prior notice to the other party. Notice hereunder shall be directed to the following addresses:
Licensor
DeltaGate USA, Inc.
575 Madison Avenue, 25th Floor
New York, NY 10022
(212) 735 - 0007
info@deltagate.com
7. Limited Warranty
Licensor warrants that the Software will substantially achieve the functionality described in the Documentation provided with the DeltaGate Software. Licensor does not warrant, however, that Licensee's use of the Software will be uninterrupted or that the operation of the Software will be error-free or secure. In addition, the security mechanism implemented by the Software has inherent limitations and Licensee is solely responsible for determining that the software sufficiently meets Licensee's security and operational needs. Licensor's sole liability for any breach of this warranty shall be to refund up to one month's hosting fees (if paid by Licensee). Only if Licensee informs Licensor of Licensee's problem with the Software during the term of the hosting service will Licensor be obligated to honor this warranty.
THIS IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY LICENSOR. LICENSOR MAKES NO OTHER EXPRESS OR IMPLIED WARRANTY AND EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. NO LICENSOR DEALER, AGENT, OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS WARRANTY.
Some states or jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to this Agreement. This warranty gives Licensee specific legal rights; however, Licensee may have other legal rights that vary from state to state or by jurisdiction.
8. Proprietary Information
8.1 Protection of Proprietary Information.
Each party will refrain from using the other party's Proprietary Information except as contemplated herein, and from disclosing such Proprietary Information to any third party except to employees who participate directly in the performance of the receiving party's obligations hereunder. Each party shall protect and safeguard the Proprietary Information of the other party using at least the same degree of care such party uses to protect its own confidential information of like importance.
8.2 Proprietary Information Defined.
For purposes of this Agreement, Proprietary Information (or "Confidential Information") includes any information and data which is, or should be reasonably understood to be, confidential or proprietary to the disclosing party, which may include, without limitation, proprietary technical, financial, personnel, marketing, pricing, sales and/or commercial information with respect to the products and services of the parties, as well as ideas, concepts, designs, computer programs (including source code and object code) and inventions and all record bearing media containing or disclosing such Proprietary Information which are disclosed pursuant to this Agreement. Proprietary Information does not include information (a) already rightfully known to the receiving party without restriction or that has been independently developed by the receiving party without the use of any Proprietary Information, (b) disclosed in published materials through no violation of this Agreement, (c) generally known to the public without restriction through no fault of the receiving party, (d) obtained without restriction from any third party rightfully empowered to disclose such information or (e) information required to be disclosed by law.
9. Indemnification and Liability Provisions
9.1 Indemnification. Licensor will defend at its expense any action brought against Licensee to the extent it is based on a claim that the Software, Documentation or any part thereof, when used within the scope of this Agreement and as provided by Licensor hereunder, infringes a patent, copyright or other proprietary right of a third party, and Licensor will pay any settlements, expenses, costs, and damages finally awarded, including attorney's fees incurred by Licensee, in such action and which are attributable to such claim; provided that Licensee notifies Licensor promptly in writing of any claim or potential claim, gives Licensor the exclusive control of the defense and settlement thereof, and provides all reasonable assistance in connection therewith.
In the event use of the Software becomes, or in Licensor's reasonable opinion is likely to become, the subject of a claim of infringement of a patent, copyright or other proprietary right, it is Licensor's option to remedy the situation by (i) procuring the continuing right to use the Software, or (ii) replacing or modifying the Software so that it no longer infringes, or (iii) terminating the hosting agreement.
Licensor represents that as of the Effective Date there are no known or expected claims that the Software infringes a patent, copyright or other proprietary right of a third party and further represents that the Software does not infringe a patent, copyright or other proprietary right of a third party.
Licensor has no responsibility for the content carried on Licensee's hosted site. Licensee will indemnify and hold harmless Licensor for any third party claims, allegations or legal actions brought against Licensor as a result of licensee's use of Licensor's product/service offering and will hold Licensor harmless for any attorney fees, court costs, damages or other liabilities. Licensee will promptly inform Licensor of any claims or suits and will cooperate with Licensor in any defense. Both parties shall further indemnify the other against the other's improper disclosure or use of any information transmitted by a client on the Web Site.
9.2 Limitation on Liability. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, LICENSOR, ITS SUPPLIERS, AGENTS, AND ASSIGNESS SHALL NOT BE LIABLE TO LICENSEE OR ITS AGENT OR ASSIGNEES FOR ANY DIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR FOR ANY DAMAGES IN EXCESS OF ONE MONTH'S HOSTING FEES (ACTUALLY PAID BY LICENSEE), EVEN IF LICENSOR HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME STATES AND JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATIONS MAY NOT APPLY TO LICENSEE.
10. General Provisions
10.1 Remedies. Except where otherwise specified, the rights and remedies granted to a party under this Agreement are cumulative and in addition to, and not in lieu of, any other rights or remedies which the party may possess at law or in equity.
10.2 Applicable Law. This Agreement shall be interpreted, construed and enforced in all respects in accordance with the laws of the State of New York without regard to conflicts of laws provisions thereof.
10.3 Alternative Dispute Resolution. Any dispute related to the terms and conditions of this agreement shall be adjudicated through Alternative Dispute Resolution (ADR) under the auspices of The American Arbitration Association unless otherwise agreed to by both parties.
10.4 Attorney's Fees. In the event of any legal proceeding between the parties arising under this Agreement, the prevailing party in any action shall be entitled to recover, in addition to any other relief awarded or granted, its costs and expenses (including reasonable attorneys' fees) incurred in any such proceeding.
10.5 Further Assurances. Either party shall take such action (including, but not limited to, the execution, acknowledgment and delivery of documents) as may reasonably be requested by the other party for the implementation or continuing performance of this Agreement.
10.6 Construction. In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any provision is held invalid by a court with jurisdiction over the parties to this Agreement, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement shall remain in full force and effect.
10.7 No Waiver. The failure of either party to insist upon or enforce strict performance by the other party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party's right to assert or rely upon any such provision or right in that or any other instance; rather, the same shall be and remain in full force and effect.
10.8 Amendment. No change, amendment or modification of any provision of this Agreement shall be valid unless set forth in a written instrument signed by both parties.
10.9 Entire Agreement. This Agreement, including its Exhibits and Attachments, represents the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior and/or contemporaneous agreements and understandings, written or oral, between the parties with respect to the subject matter hereof. The terms and conditions of any present or future purchase order or invoice submitted by Licensor or Licensee that conflict with or in any way purport to amend or add to any other terms and conditions of this Agreement or any exhibit hereto shall be of no force or effect nor shall it govern in any way the subject matter hereof, unless the same is expressly agreed to in writing and is executed by authorized representatives of Licensor and Licensee.
10.10 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document, and may be delivered to the other party by facsimile transmission of the signature pages hereto.
10.11 Independent Contractors. The parties to this Agreement are independent contractors. Neither party is an agent, representative or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such a relationship upon either of the parties.
10.12 Survival. The following provisions of this Agreement shall survive the expiration or termination of this Agreement: 1, 2, 8, 9., .10.2, 10.3, and 10.11.
10.13 Excuse. Neither party shall be liable for, or be considered in breach of or default under this Agreement (except with respect to payment and confidentiality obligations hereunder) on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions which are beyond such party's reasonable control and which such party is unable to overcome by the exercise of reasonable diligence.
