Online Service Agreement
THIS ONLINE SERVICE AGREEMENT (this "Agreement") is dated as of the Effective Date between Experlogix, Inc. ("Experlogix") and Customer and governs Customer's use and Experlogix's provision of the Service. All capitalized terms not otherwise defined herein shall have the meaning given to them above. In consideration of the mutual promises contained herein, the parties agree as follows:
1. GRANT OF LICENSE. Conditioned upon Customer's compliance with the terms and conditions of this Agreement (including but not limited to the payment of all fees), Experlogix grants to Customer, under a limited, revocable, non-transferable (except in accordance with Paragraph 13), non-sublicensable, and non-exclusive license, the right to use the Service by the Number of Users, during the Term. Customer may not make the Service available to any other entity or, once the maximum Number of Users has been reached, user, in any form whatsoever, without the prior written consent of Experlogix. All rights not expressly granted to Customer (including, without limitation, rights in the Service and any other intellectual property rights of Experlogix) are reserved by Experlogix.
2. FEES AND PAYMENT. The Total Fee will be due and payable by Customer to Experlogix upon the execution of this Agreement. Fees for adding additional users, or any other service or item purchased during the Term, will be paid upon the addition of such user, provision of such service, or delivery of such item by Experlogix to Customer, and such fees will be prorated through the end date of the then current Term. Any fee incurred by Customer after the Effective Date, will be billed at the applicable Experlogix pricing then in effect (including without limitation, renewal fees for the Service during any Extension Term, additional user fees, and fees for any other service or item).
3. TERM. This Agreement takes effect on the Effective Date and will, unless terminated earlier in accordance with Paragraph 4, remain effective for 12 months from the Effective Date (the "Initial Term"). This Agreement will automatically renew for additional, successive 12 month periods (each an "Extension Term"), unless one of the parties delivers to the other party a written non-renewal notice before the then current Term expires. "Term" as used herein means the Initial Term together with any Extension Terms.
4. TERMINATION. Unless otherwise prohibited by applicable law, either party may terminate this Agreement during the Term: (a) if the other party is adjudicated bankrupt or otherwise seeks to avoid its performance obligations hereunder under applicable bankruptcy or insolvency laws or (b) upon the occurrence of a material breach of this Agreement by the other party if such breach is not cured within 30 days after receipt of written notice identifying the matter constituting the material breach. In the event of the termination or expiration of this Agreement, all licenses granted under this Agreement shall automatically terminate immediately. Upon an early termination of this Agreement for any reason, all fees payable hereunder shall become immediately due and payable.
5. INTELLECTUAL PROPERTY RIGHTS. The Service is owned by Experlogix and is protected by United States copyright laws and international treaty provisions. Except as explicitly provided in this Agreement, this Agreement shall not be construed as transferring or granting Customer any copyrights, patents, design rights, database rights, trade secret rights, or any other intellectual property rights in the Service.
6. RESTRICTIONS. Except as expressly authorized herein, Customer shall not: (a) copy the Service or any part thereof; (b) cause or permit reverse compilation, reverse assembly or reverse engineering of all or any portion of the Service; (c) distribute, disclose, market, rent, lease, sublease or transfer to any third party any portion of the Service.
7. CONFIDENTIALITY. The design, construction and source code of the Service and all other non-public intellectual property (including, but not limited to, trade secrets) incorporated therein or derived, directly or indirectly, therefrom are confidential information of Experlogix. Customer shall keep in confidence and trust and not disclose or disseminate, or permit any employee, agent or other party working under Customer's direction to disclose or disseminate the substance of any such confidential information of Experlogix. The commitments in this Agreement will not impose any obligations on Customer with respect to any portion of such confidential information which, as evidenced by independent documentation, (a) is or becomes generally available to the public, through no act or failure to act on Customer's part, or (b) was in Customer's possession or known by Customer prior to receipt from Experlogix, or (c) was rightfully disclosed to Customer without restriction by a third party, (d) was independently developed without use of any confidential information of Experlogix or (e) is required to be disclosed by law. The obligations of Customer under this Paragraph shall survive the termination of this Agreement.
8. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding any laws that direct the application of another jurisdiction's laws. This Agreement shall be construed in accordance with its fair meaning and not for or against either party on the basis of which party drafted this Agreement. The parties consent to the jurisdiction of the Superior Courts of the State of California for the County of Santa Barbara or the Federal Courts of the Central District of California, and further agree that such courts shall have exclusive jurisdiction over any suit, claim, or cause of action arising out of or related to this Agreement. Prior to instituting any suit, claim or cause of action in such courts, Customer agrees to mediate any and all disputes with a single mediator chosen by Experlogix prior to bringing any action against Experlogix. The parties shall split the costs of the mediator.
9. LIMITED WARRANTY. Experlogix warrants that the Service will perform substantially in accordance with its standard documentation. The ability to use the Service may be affected by minimum system requirements or other factors beyond the control of Experlogix, and Experlogix shall not be liable if Customer is unable to use the Service due to such issues. EXPERLOGIX DISCLAIMS, AND CUSTOMER WAIVES, ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICE AND ANY ACCOMPANYING WRITTEN MATERIALS.
10. EXCLUSIVE REMEDY. Customer's sole and exclusive remedy for any breach of this Agreement (including without limitation any breach of the limited warranty described above) by Experlogix shall be repair or replacement of the Service. Under no circumstances shall Customer be entitled to a refund for any fees paid.
11. LIMITATION OF LIABILITIES. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), INDEMNITY OR OTHERWISE, SHALL EXPERLOGIX OR ITS SUCCESSORS OR ASSIGNEES BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR PENAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS).
12. ASSIGNMENT. Customer may not assign this Agreement or Customer's rights and obligations under this Agreement, including an assignment by operation of law, change of control or merger, without the prior written consent of Experlogix.