1. LICENSE GRANT
Subject to the terms and conditions of this Agreement, X-Pand Software grants to Subscriber and Subscriber accepts from X-Pand Software, a non-transferable, non-exclusive license to access the Software via the Service solely for internal business purposes by the number of licensed users specified in Pricing Schedule for which the license fees set forth herein have been paid.
2. RESTRICTIONS ON USE
Subscriber may not:
(i) modify, translate, reverse engineer, decompile, disassemble, upload, post or create derivative works based on the Software or Service;
(ii) assign, rent, lease, grant a security interest in, or otherwise transfer any rights to the Software or Service; or
(iii) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software or Service. In addition, Subscriber agrees not to make any attempt to gain unauthorized access to databases of any other subscriber using the Service.
Subscriber shall pay to X-Pand Software the installation and configuration fee and monthly subscription fees set forth in Pricing Schedule for access to the Software via the Service. Subscriber is responsible for all charges incurred while its account and password(s) are being used. All charges for the Software and Service shall be in accordance with the then current fee schedule set forth in Pricing Schedule hereto. Subscriber agrees to pay all fees (including applicable taxes) on account of use of the Software and Service. X-Pand Software reserves the right to change its fees for the Software and Service at any time. X-Pand Software will notify Subscriber in writing of any such changes. Subscriber shall bear sole responsibility for the payment of any taxes imposed on Subscriber’s use of the Software and Service by the national and/or local jurisdictions of and within the country of Subscriber’s use.
(a)X-Pand Software holds all right, title and interest in and to the Software (including without limitation, copyrightable or patentable subject matter, trade secrets or other intellectual property rights). All modifications, adaptations, revisions, changes, enhancements, translations, abridgements, condensations, expansions, conversions, upgrades or additions made to the Software shall be the sole and exclusive property of X-Pand Software and shall be considered a part of the Software, including all applicable rights to patents, copyrights, trademarks and trade secrets inherent therein and appurtenant thereto. Subscriber acknowledges that X-Pand Software owns all United States and international copyrights in the Software and any portions thereof. Subscriber shall not do anything to infringe upon, harm, or contest the validity of any intellectual property rights of X-Pand Software. Subscriber shall not remove or obscure X-Pand Software proprietary rights notices or fail to reproduce them on all copies of the Software in any form.
(b)SUBSCRIBER DATA is owned by the person(s) identified during the acceptance of this AGREEMENT. Further, the person(s) who provides payment for the SOFTWARE SERVICE and other services may or may not be the owner of SUBSCRIBER DATA. In the event of an ownership dispute, X-Pand Software, at its sole discretion, reserves the right to restrict access to the SOFTWARE SERVICE solely for the purpose of resolving such ownership disputes. SUBSCRIBER agrees that it is their responsibility to provide proper documentation to X-Pand Software in order to resolve any ownership dispute. SUBSCRIBER further agrees that X-Pand Software has no responsibility to determine proper ownership in the event of an ownership dispute.
(c)Subscriber acknowledges and agrees that its use of the Software and Service, and any data or information accessed using the Software and Service will be at Subscriber’s own risk. Subscriber acknowledges and accepts that X-Pand Software shall not be responsible in any manner whatsoever for any errors in the Subscriber Data, or in the accuracy or timeliness thereof or in the use of any such information. The Subscriber and each authorized user shall make and rely on their own independent investigation of the truth, completeness, accuracy and suitability of the data provided by Subscriber and each authorized user. Subscriber accepts and agrees that X-Pand Software is not liable for loss of Subscriber Data.
(a)Subscriber acknowledges that the Software is a confidential and proprietary product and process, that it embodies valuable trade secrets of X-Pand Software and that X-Pand Software has certain intellectual property rights in and to the Software including, but not limited to, patents, copyrights, trade secrets, trademarks and service marks. Subscriber agrees to retain and treat the Software, Software specifications and all supporting documentation in confidence, and shall not provide, disclose or otherwise make available the Software, or any part thereof, in any form to any person or entity, other than its employees or authorized third party consultants, without the prior written consent of X-Pand Software. Subscriber shall prevent and not allow any of such information or materials to be disclosed, used, sold, assigned, leased, sub-licensed, commercially exploited or marketed in any way or matter by Subscriber or its employees, agents or representatives to any third parties. Subscriber shall use its best efforts to safeguard the confidentiality of the Software, shall take steps to advise its employees of the confidential nature of the Software and will ensure that they abide by the restrictions and requirements of this Section 5. Further, Subscriber shall immediately advise X-Pand Software of any suspected breaches by such third parties.
(b)X-Pand Software acknowledges that the Subscriber Data is confidential and X-Pand Software agrees to retain and treat the Subscriber Data in confidence, and shall not provide, disclose or otherwise make available the Subscriber Data, or any part thereof, in any form to any person or entity, without the prior written consent of Subscriber. X-Pand Software shall not use the Subscriber Data except to support such data or in the course of providing the Service to Subscriber. X-Pand Software shall use its best efforts to safeguard the confidentiality of the Subscriber Data, shall take steps to advise its employees and other involved parties of the confidential nature of the Subscriber Data and will ensure that they abide by the restrictions and requirements of this Section 5. Further, X-Pand Software shall immediately advise Subscriber of any suspected breaches by third parties.
(c)FRANCHISEES. If the Subscriber is a Franchisee and the Franchisor has signed a Franchise Subscription agreement with X-Pand Software, then the Subscriber agrees to allow X-Pand Software to provide the Franchisor access to all of the Subscriber data.
Subscriber shall, at its own expense, acquire the compatible hardware and accessories needed to gain access to the Software by means of the Service. Subscriber shall be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of the Software and Service.
(a)From the Effective Date of this Agreement, X-Pand Software shall provide Licensee with Technical Support Service for the Software and for any active Revisions, Updates, Enhancements or New Major Releases provided to and in use by Subscriber. The monthly Technical Support Service fee shall be as set forth in Pricing Schedule on a monthly basis following the Effective Date. Thereafter, the monthly support fee shall be at X-Pand Software’s standard prevailing rate which is subject to change upon notice by X-Pand Software. For purposes of this Section 7, Technical Support Service shall be defined to be
(i) correction of unacceptable software errors, as determined by X-Pand Software;
(ii) all Revisions, Updates, and Enhancements (as such terms are defined below) to the Software and revised Software documentation, if any, that corresponds to such Revision, Update or Enhancement; and
(iii) telephone support between the hours of 8:00 AM and 5:00 PM, Central Standard Time, not including Federal Holidays, to be provided to a single individual designated by Subscriber as specified in Pricing Schedule. The words “Revisions,” “Updates,” or “Enhancements” shall be defined as error corrections, modifications and all changes and/or improvements to the Software that relate to operating performance but do not alter the basic function of the Software as determined by X-Pand Software.
(b)Additional support, including engineering consulting, customization, modification and data migration services may be made available to Subscriber, upon Subscriber request and as agreed upon by X-Pand Software. Such additional services shall be provided to Subscriber at X-Pand Software’s standard prevailing rate, plus X-Pand Software’s reasonable out-of-pocket expenses incurred to provide such services.
(c)X-Pand Software reserves the right to interrupt Service, as necessary, to perform routine maintenance or error corrections, modifications or other changes. X-Pand Software agrees to notify Subscriber via e-mail and shall not interrupt the Service, except outside of normal business hours.
X-Pand Software shall provide one user-ID and a password to allow online access from any site by an authorized user for up to the number of user licenses purchased by Subscriber. An authorized user of Subscriber must be 1) Subscriber, if Subscriber is an individual, 2) a person employed by Subscriber or 3) a person approved by Subscriber. Subscriber shall maintain its user-ID and password(s) in strict confidence. Subscriber agrees to monitor and require each authorized user’s strict compliance with this Agreement. Subscriber may create additional user-IDs and passwords for up to the number of user licenses purchased by Subscriber, subject to X-Pand Software’s policies and fees then in effect. All terms and conditions of this Agreement are applicable to all passwords issued under this Agreement and Subscriber agrees to assume sole responsibility for compliance therewith, for all charges incurred for each and every password and for maintaining the security of each and every password. Subscriber shall be liable for all use of the Software and Service if such use is via Subscriber’s password(s) and user ID. X-Pand Software reserves the right to modify or suspend access to the Software or Service at any time for any reason without notice or refund.
9. INTEREST CHARGES
Subscriber acknowledges that the monetary obligations of Subscriber to X-Pand Software hereunder constitute a commercial account. Subscriber shall pay, in addition to all other amounts owed to X-Pand Software, interest calculated at 1 and 1/2 percent per month on all amounts that have been due and payable by Subscriber to X-Pand Software for 30 days or longer. If X-Pand Software employs any legal process to recover any amount due and payable from Subscriber hereunder, Subscriber shall pay all costs of collection and reasonable attorneys’ fees.
THE SOFTWARE AND SERVICE ARE PROVIDED TO SUBSCRIBER “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR ANY OTHER WARRANTY, CONDITION, GUARANTY OR REPRESENTATION, WHETHER ORAL, WRITTEN OR IN ELECTRONIC FORM, INCLUDING BUT NOT LIMITED TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION THEREIN OR PROVIDED BY THE SERVICE.
(a)X-Pand Software shall not be liable for any damages to, or viruses that may infect Subscriber’s computer equipment or other property on account of Subscriber’s access or use of the Software or Service. Subscriber acknowledges and agrees that the Software accessed through the Service, as well as the medium Subscriber may use to gain access to such services, are not fault-tolerant and may suffer from service outages, bottlenecks and similar internet system failures. Subscriber agrees that X-Pand Software shall have no liability for such failures and that its only recourse shall be limited to terminating this Agreement pursuant to Section 15.
(b)X-Pand Software disclaims any and all loss or liability resulting from, but not limited to: a) loss of data; b) loss of software or hardware; c) loss or liability resulting from access delays or access interruptions; d) loss or liability resulting from computer viruses; e) loss or liability resulting from the non-delivery or misdelivery of data; f) loss or liability resulting from any errors, omissions or misstatements in any and all information obtained on or through the Software or Service; g) loss or liability resulting from disclosure of confidential data; and h) loss or liability resulting from acts of God.
12.EXCLUSION OF DAMAGES
NEITHER X-Pand Software NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICE AND/OR DATABASE CONTENT IS LIABLE FOR ANY DIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING IN WHOLE OR IN PART TO SUBSCRIBER’S ACCESS TO, OR USE OF, OR INABILITY TO USE, THE SERVICE AND/OR THE DATABASE CONTENT, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS OR GOODWILL, LOSS OF PROFITS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, LITIGATION, OR SIMILAR DAMAGES, UNDER ANY CIRCUMSTANCES, OR LEGAL THEORY, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE, EVEN IF X-Pand Software HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.
13.LIMITATION OF LIABILITY
WITHOUT LIMITING THE FOREGOING, SUBSCRIBER UNDERSTANDS THAT ITS EXCLUSIVE REMEDY AND THE CUMULATIVE LIABILITY OF X-Pand Software FOR ANY AND ALL CLAIMS RELATING TO THE SOFTWARE OR SERVICE PROVIDED BY X-Pand Software, IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF THE BASIC SUBSCRIPTION FEES PAID TO X-Pand Software FOR SERVICES WITHIN THE PRIOR YEAR.THE LIMITATION OF DAMAGES SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SUBSCRIBER AND X-Pand Software. THE SOFTWARE AND SERVICE WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
X-Pand Software shall indemnify and hold Subscriber harmless from any third party claim, expense, liability or damage arising out of or in connection with the Subscriber’s use of the Software or Service.
15.TERM AND TERMINATION
(a)This Agreement shall commence on the Effective Date and shall continue for one (1) month and shall automatically renew for successive one month terms thereafter [upon payment of the subscription fee on or before the renewal date], provided that the Agreement shall be terminated if either party provides written notice within thirty (30) days from the end of the current one month term of its intention not to renew this Agreement or unless terminated earlier in accordance with this Section 15. Subscriber agrees to have a valid credit card or a valid debit card acceptable to X-Pand Software with an appropriate logo (“Card”) or sufficient funds in a checking or savings account to cover an electronic debit of the fees to obtain access to the Services. The payment information Subscriber provides must be accurate, current and complete, and Subscriber agrees to notify X-Pand Software promptly of any change in the payment information. Subscriber understands X-Pand Software stores this information for billing purposes.
(b)Either party may terminate this Agreement by providing thirty (30) days notice of the party’s intent to terminate the Agreement. In addition, X-Pand Software may, at its option, terminate the subscription for the Service effective immediately in the event of nonpayment or other breach of the Agreement. Upon any termination of this Agreement, X-Pand Software’s sole obligation to Subscriber will be to return to Subscriber the Subscriber Data.
Subscriber shall not assign or transfer its rights, or delegate its rights or responsibilities under this Agreement, without the prior written consent of X-Pand Software. Any purported assignment or delegation in violation of this Section shall be null and void and of no force or effect. X-Pand Software may assign this Agreement and/or payments due hereunder without requirement for Subscriber permission or approval.
This Agreement shall be governed by and interpreted in accordance with the laws of the State of Texas, without giving effect to its conflicts of law provision. No action arising out of the license of the Software or otherwise under this Agreement may be brought by either party more than one year after the cause of action arises, except that an action for non-payment may be brought at any time within one year of the date of the last payment made hereunder.
Any dispute, controversy or claim arising out of or related to this Agreement or the breach thereof, shall be resolved by arbitration substantially in accordance with the Commercial Arbitration Rules of the American Arbitration Association, in Houston, Texas. Judgment upon any arbitration award may be entered into any court having jurisdiction, the parties hereby consenting to the jurisdiction of such courts for this purpose. Each party shall be entitled, under the supervision of the Arbitrator, to the amount of pre-arbitration discovery deemed reasonable by the Arbitrator. The discovery period shall not exceed sixty (60) days. The Arbitrator shall give full effect to Sections 10 , 11, 12 and 13 and shall not deviate therefrom.
Any notices required or permitted under this Agreement shall be in writing and shall be effective when delivered in person or sent by registered or certified mail (return receipt requested, with proper postage affixed) or by personal courier to the address set forth in this Agreement or any more recent address of which the sending party has been apprised.
No modification, amendment or other change in this Agreement shall be effective for any purpose unless specifically set forth in writing signed by the party to be bound thereby. Either party may at any time insist upon strict compliance with these terms and conditions notwithstanding any previous custom or practice to the contrary.
This Agreement and its Exhibits, which are attached hereto and incorporated herein, constitutes the entire agreement between the parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions of the parties.
This Agreement shall be binding upon both parties hereto, their respective heirs, personal representatives, successors, and assigns, and without limitation, any corporate successor by merger, consolidation or other corporate reorganization.
Neither party's failure to exercise any of its rights under this Agreement shall constitute or be deemed to constitute a waiver or forfeiture of such rights or of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import.
If any term or provision of this Agreement is found to be invalid or unenforceable or illegal under applicable law, such provision shall be narrowly construed to such an extent as is necessary to make it enforceable or, if such narrow construction is not possible, deemed to be deleted with the validity or enforceability of the remainder of this Agreement not effected thereby.