LawBox Portal Service Licensing Agreement
THIS LICENSING AGREEMENT (“Agreement”) is entered into between LAWBOX LLC (“Developer”), at 551 Ortega Ave. St., Suite 15, Mountain View, CA 94040 and Licensee ("Customer").
DEVELOPER and CUSTOMER agree as follows:
Developer is a for-profit limited liability company organized under the laws of the state of California, and is in the business of developing, marketing and licensing information technology. Developer has a multi-platform legal information service ("LawBox Service") that provides customized access to reference content on the web and select mobile devices (“LawBox Portal Platform”).
Customer is a non-profit association that provides services to its members. Customer desires to obtain a limited license to use the LawBox Service for the benefit of Customer’s members.
1.1. Developer. Developer (“LawBox, “Us”, “We”) is a limited liability company actively engaged in the business of software development and licensing. Developer is the proprietor of the LawBox Service, currently found on the internet at: http://www.lawboxapps.com/.
1.2. LawBox Service. The LawBox Service (the “Service”) is a service that provides registered member-subscribers with the ability to browse, search, annotate, and bookmark hosted reference content through a software interface.
1.3. LawBox Client Application. A LawBox Client Application (“Client App”) is any software that provides registered members of Customer with limited access to Customer’s LawBox Service. Client Apps may provide access to any number of LawBox Portals, or Customers, through a single interface. Client Apps include the LawBox App for iOS, and the LawBox App for Android.
1.4. LawBox Content. LawBox content is content created, collected, organized, or maintained by Developer. Nothing in this Agreement shall be read to give Customer any right, title, or interest in LawBox Content, beyond what is necessary to provide Customer with the services described in this Agreement. Any right, title, or interest created in LawBox Content by this Agreement, terminates with this Agreement.
1.5. Customer Content. “Customer Content” means media, data, images, or sounds created, owned, or licensed by the Customer. Nothing in this Agreement shall be read to give Developer any right, title, or interest in Customer Content, beyond what is necessary to provide Customer with the services described in this Agreement. Any right, title, or interest in Customer Content created by this Agreement, terminates with this Agreement.
1.6. LawBox Portal Platform. The “LawBox Portal Platform” includes the “LawBox Service”, “LawBox Website”, “LawBox Client Applications”, and "LawBox Content".
1.7. Customer. “Customer” is a registered nonprofit organization who desires to use Developer’s LawBox Service for the benefit of its members.
1.8. Members. “Members” are members of Customer’s organization, each with a unique username and password, used for identification and security purposes.
1.9. Reverse Engineering. “Reverse Engineer(ing)” means, without limitation: (a) the disassembly, decompilation, decryption or simulation of object code or executable code, or; (b) any other technique designed to extract source code or facilitate the duplication of a program or product; but in no event is Customer limited from independently creating any software program.
1.10. Security Technology. “Security Technology” means, without limitation, any security signature, bios, data scrambling, password, hardware security apparatus, watermark, hologram, copyright management information system or any feature which facilitates or limits access to the LawBox Portal Platform.
1.11. Notice. “Notice” means any notice permitted or required under this Agreement. All notices shall be sufficiently given when (a) personally served or delivered, or (b) transmitted by facsimile, with an original sent concurrently by first class U.S. Mail, (c) deposited, postage prepaid, with a guaranteed air courier service, (d) sent by electronic mail and confirmed by electronic mail response; in each case addressed as stated herein, or addressed to such other person or address either party may designate in a Notice. Notice shall be deemed effective upon the earlier of actual receipt or two (2) business days after transmittal.
1.12. Intellectual Property Rights. “Intellectual Property Rights” means individually, collectively or in any combination, Proprietary Rights owned, licensed or otherwise held by:
(a) Customer in its Confidential Information and Customer Content,
(b) Developer, that are associated with the development, manufacturing, advertising, marketing or sale of the LawBox Portal Platform, including, without limitation, (i) registered and unregistered trademarks and trademark applications used in connection with the LawBox Portal Platform (ii) select trade dress associated with the LawBox Portal Platform, (iii) Proprietary Rights in the Security Technology incorporated into the LawBox Portal Platform, (iv) in its Confidential Information; (v) in LawBox Content.
1.13. URL. “URL” means Uniform Resource Locator; a subset of the Uniform Resource Identifier (URI) that specifies where an identified resource is available and the mechanism for retrieving it.
1.14. Employees. “Employees” means any individual or entity that is an employee of either party, or any independent programmer, consultant, contractor, board member or advisor.
1.15. Good Working Order. “Good Working Order” means that the Product or Service runs on Supported Platforms, or commercially reasonable subset of Supported Platforms, without modification, and is free from such defects or errors that would impair the ordinary operation and use of the Product or Service.
1.16. Compilation. “Compilation” means the process by which a high-level, human-readable source code is converted into low-level, machine-readable computer code as a necessary step for software distribution.
1.17. In-App Content. “In-App Content” means content stored on a user device and accessible without regard to internet accessibility.
1.18. Access-Enabled Content. “Access-Enabled Content” means content stored online, either on a publicly available website or private server. Access-Enabled Content is accessible through the Service but is not stored on the user device. Access to such content is dependent on a working internet connection.
1.19. API. “API” or “Application Programming Interface” means an interface implemented by a software program to enable interaction with other software. APIs are implemented by applications, libraries and operating systems to determine the vocabulary and calling conventions the programmer should employ to use their services. It may include specifications for routines, data structures, object classes and protocols used to communicate between the consumer and implementer of the API. In other words, an API allows someone who does not own, control, or manage a service to use that service.
1.20. Customer Services. The Service may provide access to, or use of, “Customer Services” managed through the Customer Website, or other services offered, owned, operated, or maintained by the Customer. The availability of these services within, or through, the Service is contingent on their initial, and continued, availability through the Customer website or other means provided, owned, or maintained by the Customer.
1.21. Supported Platforms. “Supported Platforms” are combinations of hardware and/or software on which the Product or Service is intended to operate, and in combination with which, allows the Product or Service to operate in Good Working Order. Supported Platforms include Supported Web Browsers and Supported Mobile Devices.
1.22. Supported Web Browsers. “Supported Web Browsers” include a commercially reasonable subset of desktop and mobile web browsers, including, but not limited to: (a) Microsoft Internet Explorer; (b) Mobile Safari, and; (c) the Android Web Browser.
1.23. Supported Mobile Devices. “Supported Mobile Devices” include: (a) the Apple iPad, iPhone, and iPod Touch, running an unmodified version of most-recently released version of the iOS operating system; (b) select Android devices, including current versions of the Google Nexus, each running an unmodified version of the Android operating system as was originally shipped with each device.
1.24. Web Applications. “Web Applications” are web-sites that have been configured to look and behave like a software application. Web Applications may have the look and feel of an application native to the device on which the Web Application is currently being displayed.
1.25. Web Services. “Web Services” are services whose primary, or only, means of access and information exchange is through the internet.
2. Confidential Information
2.1. Confidential Developer Information. “Confidential Developer Information” means information provided to Customer by Developer or any third party working with Developer relating to the Software, including, but not limited to: (a) all current or future information, know-how, techniques, methods, information, tools, hardware or software, software development specifications, and/or trade secrets; (b) any patents or patent applications; (c) any business, marketing or sales data or information, and; (d) any other information or data relating to development, design, operation, manufacturing, marketing or sales.
2.2. Confidential Customer Information. “Confidential Customer Information” means information provided to Developer by Customer or any third party working with Customer relating to Customer’s business, association, and organization, including, but not limited to: (a) membership rosters, numbers, names, numbers, and statistics; (b) any details relating to the operation, design, content, and security measures of Customer’s website; (c) any business, marketing or sales data or information, and; (d) any other information or data relating to development, design, operation, manufacturing, marketing or sales.
2.3. Confidential Information. “Confidential Information” means “Confidential Developer Information” and “Confidential Customer Information”. Confidential Information shall include all confidential information disclosed, whether in writing, orally, visually, or in the form of drawings, technical specifications, software, samples, pictures, models, recordings, or other tangible items which contain or manifest, in any form, the above listed information. Confidential Information shall not include: (a) data and information which was in the public domain prior to either party’s receipt of the same hereunder, or which subsequently becomes part of the public domain by publication or otherwise, except by either party’s wrongful act or omission; (b) data and information which was in its possession without restriction or use or disclosure, prior to its receipt of the same hereunder and was not acquired directly or indirectly from the other party under an obligation of confidentiality which is still in force; (c) data and information which either party can show was received by it from a third party who did not acquire the same directly or indirectly from the other party and to whom the party has no obligation of confidentiality; and (e) data and information which a party independently develops.
2.4. Proprietary Nature. Except as otherwise provided in this Agreement, each Party considers its Confidential Information to be proprietary. Except as otherwise provided in this Agreement, all of the Disclosing Party's Confidential Information shall at all times, and throughout the world, remain the property of the Disclosing Party, exclusively, and all applicable Intellectual Property Rights in Disclosing Party's Confidential Information shall remain the property of the Disclosing Party, exclusively.
2.5. Disclosures Required by Law. Either party shall be permitted to disclose Confidential Information if such disclosure is required by an authorized governmental or judicial entity, provided that the other party makes a reasonable effort to provide Notice prior to such disclosure.
2.6. Disclosure and Use. Both parties agree to maintain the other party’s Confidential Information as confidential and to use such Confidential Information only in accordance with this Agreement. Both parties shall limit access to the Confidential Information to either party’s employees or executive members having a need to know and shall advise such individuals of their obligation of confidentiality as provided herein. Both parties shall use efforts to ensure that its employees working with or otherwise having access to Confidential Information shall not disclose or make any unauthorized use of the other party’s Confidential Information.
2.7. Agreement Confidentiality. Both parties agree that the terms, conditions and contents of this Agreement shall be treated as Confidential Information. The parties may disclose this Agreement (a) to accountants, banks, financing sources, lawyers, parent companies and related parties under substantially equivalent confidentiality obligations; (b) in connection with any formal legal proceeding for the enforcement of this Agreement; (c) as required by the regulations of the Securities and Exchange Commission ("SEC"), provided that all Confidential Information regarding the other party shall be redacted from such disclosures to the maximum extent allowed by the SEC; and (d) as required by any relevant law, rule or regulation promulgated by the state in which Customer's primary place of business is located. However, either party may disclose the relationship between parties, for the purpose of advertising either party's goods or services to current, or prospective, member and customers.
2.8. Confidential Information Upon Termination. Except as otherwise provided in this Agreement, upon termination of this Agreement, the Receiving Party shall return to the Disclosing Party all tangible materials and copies thereof containing Confidential Information received from the Disclosing Party. Each party’s duty to maintain the confidentiality of the other party’s confidential information survives termination of this Agreement.
3. Proprietary Rights
3.1. Proprietary Rights. “Proprietary Rights” means any rights or applications for rights owned, licensed or otherwise held in patents, trademarks, service marks, copyrights, mask works, trade secrets, trade dress, moral rights and publicity rights, together with all inventions, discoveries, ideas, technology, know-how, data, information, processes, formulas, drawings and designs, licenses, computer programs, software source code and object code, and all amendments, modifications, and improvements thereto for which such patent, trademark, service mark, copyright, mask work, trade secrets, trade dress, moral rights or publicity rights may exist or may be sought and obtained in the future.
3.2. Joint Actions Against Infringers. Customer and Developer may agree to jointly pursue cases of third-party infringement involving the Customer App, as such Customer App will contain Proprietary Rights owned by each of them. Unless the parties otherwise agree, or unless the recovery is expressly allocated between them by the court, in the event of such an action, any recovery shall be used first to reimburse Customer and Developer for their respective reasonable attorneys' fees and costs incurred in bringing such action, pro rata, and any remaining recovery shall be distributed to Customer and Developer, pro rata, based upon the fees and costs incurred in bringing such action.
3.3. Actions by Customer. Customer, without the consent of Developer, may bring any action or proceeding relating to a third-party infringement or potential infringement of only the Customer's Proprietary Rights in the Customer App. Customer shall make reasonable efforts to inform Developer of such actions in a timely manner. Customer will have the right to retain all proceeds it may derive from any recovery in connection with such actions.
3.4. Actions by Developer. Developer, without the consent of Customer, may bring any action or proceeding relating to a third-party infringement or potential infringement of only the Developer Proprietary Rights in the Customer App. Developer shall make reasonable efforts to inform Customer of such actions in a timely manner. Developer will have the right to retain all proceeds it may derive from any recovery in connection with such actions.
4. Description of the Service.
4.1. Service Description. The Service will provide a unified collection of Customer Content and LawBox Content. This content will take the form of written reference materials. The service allows its users to search, bookmark, and annotate this collected content.
4.2. Service Features. “Features” are independent, configurable collections of Service and data that provide a discreet utility to a user of the Service. Features may function independently of one another, and may be individually enabled or disabled.
4.3. Specific Features. Customer desires that the Service provide specific Features, described below. These Features are in addition to the basic capabilities and Features of the Service, as described elsewhere in this Agreement and the Terms of Service:
A. Customer Content. Customer desires that the content of its publication, The Texas Bench Book, be made available exclusively to its members and customers through the LawBox Portal Platform.
Customer shall not have any intellectual property rights in the Service described in Section Four (“Description of the Service”), beyond that which it holds in Customer Content. Customer disclaims any ownership, right, or title in the LawBox Portal Platform and LawBox Content.
4.4. Access to Customer Content.
This description contemplates features that will provide access to select Customer Content. Access to Customer Content is contingent on the availability of Customer Content from Customer through: (a) a private or public API, or; (b) through other means ordinarily used in the Software Development or Publishing industries. Customer Content shall not be made available, by LawBox, to any other party, excepting LawBox employees and independent contractors, Customer, and Customer's Members, Clients, and Employees. Customer Content remains the property of Customer, and LawBox claims no right, ownership, or title in Customer Content, beyond that which is necessary to give effect to this Agreement.
4.5. Security Features. The Service shall include such Security Technology as Developer, in its sole discretion, may deem necessary or appropriate to protect the Intellectual Property contained therein, including Intellectual Property associated with the Developer, the Service, Developer Content, Developer Databases, the Customer, and Customer Content. Additional security features may be included, as described in the Terms of Service.
4.6. Development Process. Developer shall be the exclusive source for the Service, with responsibility for all aspects of the development and distribution process, including the selection of the base SDK, web and hosting platforms, and specifications for any processes, determination of machinery and formats, appointment of suppliers and subcontractors and management of all work-in-progress. Customer has no interest in, and no right to obtain, view, or copy the source code of the Service.
5. Schedule; Fees
5.1. Development Period. “Development Period” means the period of time in which Developer engages in the development of the Service. This stage includes design, coding, branding, compilation, deployment, testing, and delivery.
5.2. Availability. Developer will not provide Customer with a physical copy of the Service. The Service will be accessed, remotely, through Supported Web Browsers, Supported Mobile Devices, and LawBox Client Applications. The Service is “Available” when it can be accessed by Supported Web Browsers.
5.3. Delivery. The Service is “Delivered” when it has been made available to Customer by means considered reasonable in the software development industry.
5.4. Distribution. The Service is “Distributed” when it has been made available to the Customers' members by ordinary means.
5.5. Stages and Milestones. This Agreement contemplates multiple stages, with different responsibilities imposed on the parties at each stage of the Agreement. At a minimum, these stages include: (a) Development Period; (b) a Prototype and Approval Process, and; (c) Distribution. Additional stages may be provided by subsequent agreement, addendum, or rider.
5.6. License Cost. “License Cost” means sum of the Development Fee and the Delivery Fee.
5.7. Development Fee. The Development Fee is $[__].
5.8. Distribution Fee. The Distribution Fee is $[__].
5.9. Payment Schedule. Payment Schedule for the Development Fee is governed by Section Five (5) (“Schedule; Fees”). Payment Schedule for the Distribution Fee is governed by Section Six (6) (“Prototype and Approval”).
5.10. Development Calendar.
(1) Milestone: Prototype
Due Date: _____.
(2) Milestone: Notice of Decision Due Date: 15 days from Delivery under (1)
(3) Milestone: Distribution Due Date: 15 days from Approval under (2)
5.11. Fees Calendar.
(1) Milestone: Delivery of Prototype
Fee: Development Fee
Due Date: 15 days from Delivery of Prototype
(2) Milestone: Distribution Fee: Delivery Fee Due Date: 15 days from Approval of Prototype
5.12. Limitations of Calendars. It is understood that the above calendars contemplate development without technical difficulties or design changes. If the parties agree that changes or difficulties are sufficiently significant to cause a change in these calendars, then the parties will negotiate to agree on new dates for those milestones, but until any such agreement in writing to change the calendar, the original calendar remains in place.
5.13. Mobile Client Applications. Both Developer and Customer desire that Client's Customers and Members will be able to access the LawBox Service through Supported Mobile Devices, using LawBox Client Applications. These Applications will provide substantially similar functionality as the Web-Based Client Application, but would take advantage of the unique capabilities of Mobile Devices, including local, on-device storage. The development of Mobile Client Applications is not included in this Agreement. However, when such Mobile Client Applications become available, Customer’s license shall extend to the use of these Mobile Client Applications for the remainder of the license term.
6. Prototype and Approval
6.1. Prototype. “Prototype” means a version of the Service made available to Customer for the purpose of Approval.
6.2. Approved Prototype. “Approved Prototype” means a Prototype that has been Approved by Customer.
6.3. Review of Prototype. Upon Delivery of the Prototype, Customer shall review the Prototype for the purposes of approval.
6.4. Approval. Customer shall Approve the Prototype if Customer finds that the Prototype meets the specifications as outlined in Section Four (4) “Service Description”, and is in Good Working Order.
6.5. Grounds to Refuse Approval. Customer may withhold Approval if the Prototype does not meet the specifications outlined in Section Four (4) (“Service Description”), or is not in Good Working Order. If customer withholds Approval, it will provide Developer with a written explanation of the grounds and Developer will have fifteen (15) days to submit a revised Prototype for Customer Approval. Each submission of a revised Prototype restarts the Approval process. Customer Approval shall not be unreasonably withheld.
6.6. Effect of Approval. Approval indicates that the Prototype meets the specifications of the Service under this Agreement, as described under Section Four (4) (“Service Description”) and is in Good Working Order. Upon approval, all specifications outlined in Section Four (4) (“Service Description”) merge with the Approved Prototype. Approval of a Prototype terminates the Development Stage.
6.7. Review Period. Customer shall have fifteen (15) days from Delivery of a Prototype to review that Prototype. By the expiration of this period, Customer shall notify Developer of the results of its review. If Customer does not provide Developer with notice of its decision within the Review Period plus 5 days, Customer will be deemed to have Approved the Prototype.
6.8. Quantity of Test Devices. It is understood that technical limitations or legal obligations may limit the quantity of Test Devices that Developer can reasonably support during Review of the Prototype. The Prototype will be configured to run on at least three (3) different Test Devices. Customer is responsible for providing the necessary information to enable Developer to configure the Prototype to run on these Test Devices. Developer is not required to provide test devices, or to register, or enable, more than three (3) Test Devices for the purpose of Prototype Approval.
6.9. Quantity of Test Users. It is understood that technical limitations or legal obligations may limit the quantity Test Users that Developer can reasonably support during the Review of the Prototype. The Prototype will be configured to allow for at least three (3) different Test Users. Customer is responsible for providing the necessary information to enable Developer to configure the Prototype for Test Users. Developer is not required to provide Test Users, or to support more than three (3) Test Users for the purpose of Prototype Approval.
7. Scope of the Agreement; License
7.1. The Agreement includes the development of specific features for, and a license in, the Service. The Service is described in more detail in Section Four (4) (“Service Description”).
7.2. License for Service. The Delivery Cost includes a one (1) year non-exclusive license in the Service that is, at least, as expansive, in both duration and extent, as a annual subscription under the Service’s Terms of Service posted on the Service's website, if any. The beginning of this license term is tolled until the distribution of the Service under Section Six (6) (“Approval”) . At the expiration of the license term, the cost of renewing the Service shall be set at the then-prevailing, non-discounted commercial rate offered by Developer to the general public through the Service website, if any, and shall be controlled, exclusively, by the language the Terms of Service, without regard to this Agreement. However, under no circumstances, will the cost of Customer's use or renewal of the Service exceed the sum of the Development and Delivery fee in Section Four (4), without adequate written notice having been provided to Customer, describing such increase and providing Customer with an adequate opportunity to cancel renewal of the Service.
7.3. Interpretation. During the Term, where the provisions of this Agreement contradict the Terms of Service, this Agreement controls.
7.4. Express Obligations. Regardless of the language of the Terms of Service, during the one (1) year license term this Agreement provides Customer with the following rights and remedies:
(a) Customer shall have and receive the Features detailed in Section Four (4) (“Description of the Service”), according to the schedule provided under Section Five (5) (“Schedule; Fees”);
(b) Customer’s subscription and license may not be revoked or eliminated without: (i) Customer’s express agreement in writing, or; (ii) breach by Customer of the terms of this Agreement.
8. Termination and Breach.
8.1. Term. The initial term of the Agreement is one (1) year from the Delivery Date. This Agreement will renew, yearly, under the same terms, unless written intent to cancel the Agreement is received prior to the expiration of the preceding term.
8.2. Termination for Cause. Either party, as applicable, has the right, in addition and without prejudice to any other rights or remedies, to terminate this Agreement as follows:
(a) Termination for Cause. This Agreement may be terminated by either Party if:
i) a receiver is appointed for either Party or its property;
ii) either party makes an assignment for the benefit of its creditors;
iii) any proceedings are commenced by, for, or against either Party under any bankruptcy, insolvency, or debtor's relief law for the purpose of seeking a reorganization of such Party's debts, and such proceeding is not dismissed within ninety (90) calendar days of its commencement; or
iv) either Party is liquidated or dissolve. In addition, this Agreement may also be terminated by the non-breaching Party in the event of any material breach of this Agreement by the other Party after giving thirty (30) days prior notice to the breaching Party, unless the breaching Party has cured such breach during this thirty (30) day period.
8.3. Effect of Termination by Developer’s Breach. If this Agreement is terminated by Customer as a result of a material breach of its terms or conditions by Developer, Customer may continue to use the Service until the expiration of the Term, or as long as the Service remains available online. Developer shall take no action, unless required by law, to either terminate Customer’s access to the Service, or to maintain or support Customer’s access to the Service.
8.4. Effect of Termination by Customer's Breach. If this Agreement is terminated by Developer as a result of a material breach of its terms of conditions by Customer:
(a) Developer may immediately cease all development, maintenance, and support of the Customer;
(b) all rights granted to Customer under this Agreement cease;
9. Terms and Conditions.
9.1. LawBox Service Terms of Service. The LawBox Portal Platform is subject to Terms and Conditions. Schedule 1 lists the Terms and Conditions of the LawBox Portal Platform at the time of execution. Developer reserves the right to modify, append, or change these Terms of Service at any time. As party to this Agreement, Customer agrees to be bound by the Terms of Service, except as otherwise explicitly stated in this Agreement.
10.1. Customer’s Representations and Warranties. Customer represents and warrants that: (a) it is a duly organized and validly existing non-profit association and has authority to enter into this Agreement and to carry out the provisions hereof; (b) the execution, delivery and performance of this Agreement by Customer does not conflict with any written agreement to which Customer may be bound.
10.2. Developer’s Representations and Warranties. Developer represents and warrants that: (a) it is a duly organized and validly existing limited liability company organized under the laws of California and has full authority to enter into this Agreement and to carry out the provisions hereof; (b) the execution, delivery and performance of this Agreement by Developer does not conflict with any written agreement to which Developer may be bound, and of which Developer is currently aware; and (c) excluding the Intellectual Property Rights associated with the Customer Content or Customer Website, Developer is either: (i) the sole owner of all right, title and interest in and to the trademarks, copyrights and other intellectual property rights used on or in association with the development, advertising, marketing and sale of the Service and the promotional materials, or; (ii) the holder of such rights to the trademarks, copyrights and other intellectual property rights which have been licensed from a third party as are necessary for the development, advertising, marketing and sale of the Service and the promotional materials.
10.3. Warranty of Software Performance. Developer warrants that: (a) it holds the necessary rights to provide and permit the use of the Service, and; (b) when the Service is distributed, it will be the same Service approved by Customer.
11.1. INTELLECTUAL PROPERTY RIGHTS DISCLAIMER BY DEVELOPER. DEVELOPER MAKES NO REPRESENTATION OR WARRANTY CONCERNING THE SCOPE OR VALIDITY OF CUSTOMER’S INTELLECTUAL PROPERTY RIGHTS. DEVELOPER DOES NOT WARRANT THAT THE DESIGN, DEVELOPMENT, ADVERTISING, MARKETING OR SALE OF THE SERVICE OR THE USE OF THE INTELLECTUAL PROPERTY RIGHTS BY CUSTOMER OR CUSTOMER’S MEMBERS WILL NOT INFRINGE UPON PATENT, COPYRIGHT, TRADEMARK OR OTHER PROPRIETARY RIGHTS OF A THIRD PARTY. ANY WARRANTY THAT MAY BE PROVIDED IN ANY APPLICABLE PROVISION OF THE UNIFORM COMMERCIAL CODE OR ANY OTHER COMPARABLE LAW OR STATUTE IS EXPRESSLY DISCLAIMED.
11.2. GENERAL DISCLAIMER BY DEVELOPER. DEVELOPER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICE, EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT. CUSTOMER PURCHASES AND ACCEPTS ALL SERVICE ON AN "AS IS" AND "WHERE IS" BASIS, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, DEVELOPER DISCLAIMS ALL WARRANTIES UNDER THE APPLICABLE LAWS OF ANY COUNTRY, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A GENERAL OR PARTICULAR PURPOSE.
11.3. LIMITATION OF LIABILITY. EXCEPT FOR DEVELOPER’S INDEMNITY OBLIGATIONS AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER DEVELOPER NOR ITS RESPECTIVE AFFILIATES, LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR LOSS OF PROFITS, OR FOR ANY SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF CUSTOMER OR ITS MEMBERS ARISING OUT OF OR RELATED TO THIS AGREEMENT. DEVELOPER SHALL NOT BE LIABLE FOR DAMAGE TO CUSTOMER’S MEMBERS’S DEVICES OR INJURY TO CUSTOMER’S MEMBERS FROM USE OR MISUSE OF THE SERVICE.
11.4. NEITHER CUSTOMER NOR ANY OF ITS EMPLOYEES OR EXECUTIVE MEMBERS, IS LIABLE TO DEVELOPER FOR ANY SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
11.5. DISCLAIMER OF RESPONSIBILITY FOR USER CONTENT. DEVELOPER SHALL NOT BE RESPONSIBLE FOR ARCHIVING, MAINTAINING OR OTHERWISE PRESERVING USER-CREATED CONTENT, INCLUDING, BUT NOT LIMITED TO, NOTES, ANNOTATIONS, COMMENTS, POSTINGS, OR MESSAGES CREATED BY THE USE OF THE SERVICE. DEVELOPER SHALL NOT BE RESPONSIBLE FOR THE LOSS OR DESTRUCTION OF USER-CREATED CONTENT, INCLUDING, BUT NOT LIMITED TO, NOTES, ANNOTATIONS, COMMENTS, POSTINGS, OR MESSAGES CREATED BY THE USE OF THE SERVICE, EVEN IF SUCH LOSS OR DESTRUCTION IS THE RESULT OF SOFTWARE DESIGN, SOFTWARE UPDATES, OR DATABASE MIGRATION.
11.6. DISCLAIMER OF RESPONSIBILITY FOR USER OPERATION. DEVELOPER DOES NOT WARRANT THAT THE OPERATION OF THE SERVICE OR USE OF ASSOCIATED ONLINE SERVICES WILL NOT INFRINGE UPON PATENT, COPYRIGHT, TRADEMARK OR OTHER PROPRIETARY RIGHTS OF A THIRD PARTY. ANY WARRANTY THAT MAY BE PROVIDED IN ANY APPLICABLE PROVISION OF THE UNIFORM COMMERCIAL CODE OR ANY OTHER COMPARABLE LAW OR STATUTE IS EXPRESSLY DISCLAIMED.
11.7. DISCLAIMER OF RESPONSIBILITY FOR DECISIONS MADE OR ACTIONS TAKEN BY THIRD-PARTIES. CUSTOMER HEREBY ACKNOWLEDGES THAT DISTRIBUTION CHANNELS MAY BE IN CONTROL OF THIRD-PARTIES, THAT THESE THIRD-PARTIES ARE NOT A PARTY TO THIS CONTRACT, THAT DEVELOPER MAY BE BOUND BY THE TERMS OF ITS AGREEMENT WITH THESE THIRD-PARTIES, THAT DEVELOPER HAS NO CONTROL OVER THIRD-PARTY DISTRIBUTION PROCESSES IN EXCESS OF THE SCOPE OF ITS AGREEMENT WITH THOSE THIRD-PARTIES, AND THAT THE TERMS OF ANY THIRD-PARTY LICENSE AGREEMENT WITH DEVELOPER MAY BE SUBJECT TO CHANGE AT THE THIRD-PARTY’S DISCRETION. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, DEVELOPER DOES NOT WARRANT THAT ANY THIRD-PARTY IN CONTROL OF A DISTRIBUTION CHANNEL WILL ACCEPT FOR REVIEW, APPROVE, OR DISTRIBUTE THE SERVICE OR ANY SERVICE-RELATED SOFTWARE. DEVELOPER DISCLAIMS ANY RESPONSIBILITY FOR DECISIONS MADE BY THIRD-PARTIES CONTROLLING DISTRIBUTION CHANNELS, INCLUDING, BUT NOT LIMITED TO, REVOKING ANY AGREEMENT OR LICENSE THE THIRD-PARTY HAS WITH DEVELOPER, REFUSING TO APPROVE OR DISTRIBUTE THE SERVICE OR ANY SERVICE-RELATED SOFTWARE, OR MAKING INTERNAL USE OF THE SERVICE OR ANY SERVICE-RELATED SOFTWARE FOR ANY PURPOSE WHATSOEVER. DEVELOPER SHALL NOT BE LIABLE FOR ANY ACTION, CONDUCT, OR DECISION SOLELY ATTRIBUTABLE TO THIRD-PARTIES CONTROLLING DISTRIBUTION CHANNELS.
12. General Provisions
12.1. Interpretation. Wherever ambiguity arises in interpretation of this Agreement, the terms and conditions contained therein shall be interpreted to be consistent with the parties' intent that each party maintains their preexisting Intellectual Property Rights to the exclusion of the other party. No term or condition shall be construed to create a right, license, title or grant in the other party's Intellectual Property, unless specifically provided for in the Agreement.
12.2. Business Facilities. Each party agree to maintain: (a) suitable office facilities within the United States, adequately staffed to enable the party to fulfill all responsibilities under this Agreement; and (b) necessary staff and resources to facilitate proper handling of the Service.
12.3. Force Majeure. Neither party shall be liable for any breach of this Agreement occasioned by any cause beyond the reasonable control of such party, including governmental action, war, riot or civil commotion, fire, natural disaster, labor disputes, restraints affecting shipping or credit, delay of carriers, or any other cause which could not with reasonable diligence be controlled or prevented by the parties.
12.4. Waiver. The failure of a party to enforce any provision of this Agreement shall not be construed to be a waiver of such provision or of the right of such party to thereafter enforce such provision.
12.5. Severability. In the event that any term, cause or provision of this Agreement shall be construed to be or adjudged invalid, void or unenforceable, such term, clause or provision shall be construed as severed from this Agreement, and the remaining terms, clauses and provisions shall remain in effect.
12.6. Integration. This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof. All prior negotiations, representations, agreements and understandings are merged into, extinguished by and completely expressed by this Agreement.
12.7. Amendment. Any amendment to this Agreement shall be in writing, signed by both parties.
12.8. Governing Law and Venue. This agreement shall be governed by the laws of the State of California, without regard to its conflict of laws principles.
12.9. Attorneys' Fees. In the event it is necessary for either party to this Agreement to undertake legal action to enforce or defend any action arising out of or relating to this Agreement, the prevailing party in such action shall be entitled to recover from the other party all reasonable attorneys' fees, costs and expenses relating to such legal action or any appeal therefrom.
12.10. Counterparts. This Agreement may be signed in counterparts, which shall together constitute a complete Agreement.
12.11. Signature. A signature transmitted by facsimile, electronic mail, or other industry-standard forms of communication shall be considered an original for purposes of this Agreement.
12.12. Expenses. Unless otherwise specified in this Agreement, each Party will bear all of its own expenses necessary to meet its duties and obligations under this Agreement
12.13. Independent Contractors. The Parties act under this Agreement solely as independent contractors of one another. No agency, partnership, joint venture or employment is created as a result of this Agreement. Except as expressly provided by this Agreement, no Party will be liable for or bound by any representations, acts or omissions whatsoever of the other.
12.14. Non-Transferability. Each Party agrees that it will not sell, transfer, assign, sublicense, pledge, lease, subcontract, rent or share any of its rights or duties under this Agreement unless otherwise permitted by a specific provision of this Agreement or pursuant to the prior written permission of the other Party, except that Customer may assign this Agreement to a successor entity without the permission of Developer.
12.15. Rights. No right granted by this Agreement shall be interpreted as being exclusive in nature unless otherwise exclusively stated in this Agreement.
12.16. Notice. Any notice required under this agreement shall be deemed accomplished by electronic mail (e-mail) to the Customer at the address: [________] or to Developer at the address: email@example.com.
IN WITNESS WHEREOF, the parties have entered into this Agreement on the dates set forth below.
Title: Member Title: