PLEASE READ THIS SOFTWARE LICENSE AGREEMENT ("LICENSE") CAREFULLY BEFORE USING THE SOFTWARE. BY USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE THE SOFTWARE.
WHEREAS Customer Monitor International Limited ("Customer Monitor") develops, maintains and licenses access to a Web-based customer experience management software solution for businesses, marketers and entrepreneurs; and
WHEREAS, customer wishes to use the Customer Monitor application and obtain such related services, and Customer Monitor desires to provide such services to customer; and
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.1 For purposes of this Agreement, the definitions set forth below shall be applicable:
2.1 GRANT OF LICENSE. SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, CUSTOMER MONITOR HEREBY GRANTS TO CUSTOMER AND CUSTOMER HEREBY ACCEPTS A NONEXCLUSIVE, NONTRANSFERABLE LICENSE TO ESTABLISH ONLINE ACCESS TO THE CUSTOMER MONITOR APPLICATION SOFTWARE TO PERFORM RELATED BUSINESS FUNCTIONS THAT THE SOFTWARE IS DESIGNED TO PERFORM.
2.2 Title. Customer Monitor shall retain all right, title and interest (including all copyrights, patents, service marks, trademarks and other intellectual property rights) in and to the Customer Monitor application, including any and all updates, enhancements, customizations, revisions, modifications, future releases and any other changes thereto, and all related information, material and documentation, etc. Except for the license granted pursuant to this Agreement, customer shall not acquire any interest in the Customer Monitor application software or any other services or materials, or any copies or portions thereof, provided by Customer Monitor pursuant to this Agreement.
2.3 Customer Ownership of prospect, customer and employee data. Any company-specific data provided to Customer Monitor hereunder, either in hard copy or electronic format, is and shall remain the customer's property.
2.4 Customer Monitor intellectual property ownership and restrictions to product use. Customer Monitor shall retain all rights to proprietary application development, business and technical methodologies, implementation, business processes and all other aspects of Customer Monitor business, application(s) and services. Under no circumstances will the customer be permitted to use any Front End Code to their advantage (or) the advantage of their partner companies (or) potential partner companies outside of the intended design and implementation for which the original service subscription agreement was executed. The technology and business methodologies are proprietary and the sole property of Customer Monitor. Any technology or business replication of any aspect of the application or services provided used for the gain of the customer or above-mentioned business partners or for the use of any level of a competitive nature regarding these proprietary elements is strictly prohibited.
2.5 Usage Thresholds. Customer agrees to the following thresholds:
Exceeding the established usage thresholds may subject the customer to email overage fees and/or upgrade to the subscription.
3.1 Fees. In consideration of the license granted pursuant to Section 2.1, and for the services, customer shall pay Customer Monitor the fees as specified on the customer's original Proposal (the "Fees"). Customer Monitor shall invoice customer for the Licensing, Setup, and Implementation Fees immediately upon execution of this Agreement. These fees shall be paid at the execution of this agreement. Thereafter, Customer Monitor shall invoice customer on a prepaid monthly basis for monthly membership charges. All charges for Fees shall be due and payable to Customer Monitor within ten days (10) of the date of each invoice.
4.1 Term. The term of this agreement begins on the effective date and shall continue for a period of 12 months, unless earlier terminated as per clause 4.2. The agreement will then automatically renew after each twelve month period, and continue unless either party expresses the intention to review, within 30 days of the renewal date.
4.2 Termination without Cause. Either party may terminate this Agreement within the first 30 days of each 12 month period, by providing written notice to the other party incurring no cost. Termination after the 30 days will incur early termination fees, as stated in clause 4.3.
4.3. Early Termination fees will be calculated by multiplying the remainder of the contract period by the current full monthly plan price.
4.4 Fees; Return of Data. In the event of termination or expiration of this Agreement, all Fees due and payable to Customer Monitor must be paid in full. At Customer Monitor's election, upon its receipt of all such Fees, or after notice of intent to terminate has been received from the customer by Customer Monitor, Customer Monitor will make all company data available for a period of 30 days and then remove Customer from the production environment.
4.5 Hold period. A hold period of 3 months can be applied to any 12 month account; however this will only extend the 12 month period by 3 months.
4.6 Standard Marketing. Customer reserves the right to use Customer Monitor's name and credentials in an appropriate and acceptable manner for standard marketing promotions. Equally, Customer Monitor reserves the right to use customer's name and credentials in an appropriate and acceptable manner for standard marketing promotions. Acceptable and standard marketing promotions include, but are not limited to: client listings, press releases, surveys, interviews, reputable business publications, television, and web site presentation and promotion, etc.
5.1 DISCLAIMER OF WARRANTIES. THIS AGREEMENT IS AN AGREEMENT FOR SERVICES. NOTWITHSTANDING THE FOREGOING, CUSTOMER MONITOR SPECIFICALLY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE CUSTOMER MONITOR APPLICATION SOFTWARE AND SERVICES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, NO INFRINGEMENT, UNINTERRUPTED SERVICE OR FITNESS FOR A PARTICULAR PURPOSE.
5.2 LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF BUSINESS OR OTHER LOSS ARISING OUT OF OR RESULTING FROM THIS AGREEMENT EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY REGARDLESS OF THE NEGLIGENCE OR OTHER FAULT OF THE PARTY AND REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LEGAL LIABILITY. Notwithstanding the foregoing, in no event shall Customer Monitor's cumulative liability under this Agreement exceed the amount actually paid by customer to Customer Monitor in the immediately preceding six- (6-) month period.
5.3 Customer Warranty. Customer represents and warrants that it shall, at all times, comply with, and shall remain solely responsible for compliance with, all applicable federal, state and local laws and regulations. Customer shall indemnify and hold Customer Monitor harmless from and against any and all damages, costs, losses, claims, causes of action and lawsuits and expenses, including reasonable attorneys' fees, relating to breach of the aforementioned representation and warranty.
6.1 ASSIGNMENT OF AGREEMENT. CUSTOMER SHALL NOT ASSIGN ITS RIGHTS OR DUTIES UNDER THIS AGREEMENT WITHOUT THE PRIOR WRITTEN CONSENT OF CUSTOMER MONITOR. THIS AGREEMENT SHALL INURE TO THE BENEFIT OF THE AUTHORIZED SUCCESSORS AND ASSIGNS OF THE PARTIES.
6.2 Independent Contractor. Customer Monitor is an independent contractor, and this Agreement does not in any way create the relationship of principal and agent, franchisee, joint venture or partnership between the parties. Neither party shall be liable for any debts or obligations of the other.
6.3 Entire Agreement; Precedence. This Agreement and Exhibit(s) (which may be attached hereto and incorporated herein by reference) contain the entire understanding between the parties and supersede any prior verbal or written agreement between the parties with respect to the subject matter hereof. No amendment or modification of the Agreement shall be valid, unless made in writing and signed by both parties hereto. In the event of any inconsistency or conflict between the terms and conditions of this Agreement and any term or condition of any Exhibit hereto, the terms and conditions of this Agreement shall, in all instances, govern and control.
6.4 Governing Law. This Agreement shall be governed by the laws of New Zealand, Australia & the United States of America without giving effect to conflict of laws principles.
6.5 Force Majeure. Neither party hereto shall be in default hereunder by reason of its delay or failure to perform any of its obligations hereunder for any event, circumstance or cause beyond its control such as, but not limited to, acts of God, strikes, lockouts, general governmental orders or restrictions, war, threat of war, hostilities, revolution, acts of terrorism, riots, epidemics, fire, earthquake or flood. The performance of this Agreement shall then be suspended for as long as any such event shall prevent the affected party from performing its obligations under this Agreement.
6.6 Invalidity; Waivers. If any provision or portion of this Agreement is held invalid, illegal, void or unenforceable as it appears in this Agreement by reason of any rule of law, administrative or judicial provision or public policy, then such provision shall be construed as being enforceable to the extent such rule of law, administrative or judicial provision or public policy allows. All other provisions of this Agreement shall nevertheless remain in full force and effect. Neither of the parties shall be deemed to have waived any of its rights, powers or remedies hereunder unless the waiving party expresses such a waiver in writing.
6.7 Annual close-down period. Deployment of surveys will temporarily be suspended for a two week period over the Christmas and New Year’s period as the Company closes down over that period. No surveys will be deployed but the site will still be available for use. Main client contact will be informed about key dates.
6.8 Survival of Terms. Notwithstanding the expiration or earlier termination of this Agreement for any reason, the provisions of Articles 4, 5, 6 and Sections 2.2 and 2.3 of this Agreement shall remain in full force and effect.