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1. DEFINITIONS. A. BUYER, LICENSEE or LESSEE means the entity name listed on the Purchase Order/Subcontract. B. SELLER, LICENSOR, or LESSOR means the party with whom Buyer is contracting. The Buyer and Seller are sometimes hereinafter referred to individually and collectively as the Party or Parties respectively. C. PURCHASE ORDER means the name and/or title of the instrument of contracting, including all documents, exhibits and attachments referenced therein.
2. ACCEPTANCE. A. The issuance of a Purchase Order and the execution of Seller’s Software License and/or Lease Agreement as may be amended by Buyer constitute the Buyer’s offer. Acceptance is expressly limited to the terms and conditions of the Purchase Order and as stated in Seller’s Software License/Lease Agreement to the extent that such terms and conditions are consistent with and does not in any way conflict with the terms and conditions as stated herein. In the event of any inconsistencies between the terms and conditions of the Purchase Order and the Software License/Lease Agreement the terms and conditions of the Purchase Order shall prevail. The Purchase Order, Software License and/or Lease Agreement shall sometimes hereinafter be referred to collectively as the “Agreement”. The Buyer hereby objects to any and all additional or different terms and conditions in the Seller’s acceptance. B. The Purchase Order is accepted as written by executing the Acknowledgment or Acceptance copy of the Purchase Order, and/or by beginning performance. C. No modification of the Agreement (including any additional terms and conditions or different terms and conditions contained in the Seller’s acceptance) shall be binding upon either Party unless and until agreed to in writing signed by the appropriate duly authorized representatives of the Parties.
3. ENTIRE AGREEMENT. This Agreement, which shall include the Purchase Order and all appendices or other attachments referenced herein (which may include Seller’s Software License/ Lease Agreement if so referenced), constitutes the entire Agreement between Buyer and Seller and supersedes all prior oral and written agreements and/or proposals between the Parties relating to this subject.
4. TRANSFERS, PROVISIONS AND RIGHT OF USE SOFTWARE. A. Licensee shall have the unrestricted right to transfer the Software License(s) to its parent and/or any subsidiary of Licensee upon written notification to Licensor of such transfer without payment of additional costs or fees provided that the total number of Software Licenses purchased or leased by Licensee is not exceeded. In the event that Licensee Software License usage exceeds the total number of Software License(s) purchased or leased the Licensor and Licensee hereby agree to enter into good faith negotiations for the purchase and/or lease of the additionally required Software License(s) or Licensee shall comply with the previously established Software License(s) usage limits. Each purchase order is licensed to one (1) registered domain unless agreed in writing otherwise.
5. SOFTWARE MAINTENANCE. This Agreement does not include any current or future maintenance provisions with Licensor. If the Parties agree to enter into a separate contractual maintenance agreement any current or future maintenance Agreement(s) which is terminated for any reason, shall not affect the continuation of the Agreement and/or the incorporated Software License and/or Lease Agreement(s).
6. PAYMENT SCHEDULE; FEES AND CHARGES. Payment is due and collected upon execution of the purchase order. Any additional add on of product or service is 50% due upon execution of agreement and the remaining is due upon Software delivery, installation, and successful validation of performance including any other agreed to obligations of Licensor for which performance is then due and receipt of a properly executed and accurate invoice, Licensee shall pay the fees and charges as specified in the Purchase Order to Licensor within thirty (30) days. If for whatever reason after receipt of a properly executed invoice Licensee fails to make payment or formally dispute the invoice Licensor may at its option request interest be accrued in an amount not to exceed the maximum amount allowed by law.
7. CONFIDENTIALITY OF LICENSOR’S INFORMATION. A. Licensee hereby agrees that it shall use its reasonable efforts to avoid disclosure of Licensor’s proprietary/confidential information to any third party other than Licensee’s consultants, agents and representatives having access to Licensee’s proprietary data and a need to know. Licensor hereby agrees that all such proprietary/confidential information provided to Licensee shall be marked with a stamp or legend indicating its confidential/proprietary nature. B. For the purposes of this Agreement, the term “reasonable efforts” shall mean that Licensor’s proprietary/confidential information shall be preserved, maintained, and managed in accordance with the same policies and procedures by which Licensee protects its own proprietary/confidential information. Licensee shall not be liable for the use or disclosure of any such proprietary/confidential information if such information is: (1) In the public domain at the time it was disclosed. (2) Known to the Party receiving it at the time of disclosure. (3) Used or disclosed inadvertently provided the appropriate degree of care is exercised. (4) Used or disclosed with prior written approval of the Licensor. (5) Independently developed by the receiving Party. (6) Becomes known to the receiving Party without similar restrictions from a source other than the disclosing Party having the right to disclose.
8. VALIDATION OF SOFTWARE PERFORMANCE. Unless otherwise agreed to by the Parties in advance, the Licensee shall install or cause to be installed the Licensed product(s) within fifteen (15) days of receipt it’s hosted by the Licensor and if it’s hosted externally by Licensee or by another third party vendor; then Licensor can only do so once all the server’s hardware and software is confirmed ready. Once the Licensed Product(s) is installed, Licensee shall have the opportunity to validate the Licensed Product(s) performance to determine whether it functions substantially in accordance with the applicable documentation. Licensee shall validate the Licensed Product(s) performance pursuant to the procedures, criteria and descriptions set forth in Licensor’s documentation and shall complete such tests as quickly as practical within no more than thirty (30) days after installation. Such validation shall be conducted on Licensee’s site and equipment in order to determine whether the Software can be effectively utilized in Licensee’s operating business environment. Licensee will provide a written “listing” identifying in reasonable detail, all known defects discovered during performance validation to Licensor. Within ten (10) days of receipt of such “listing” Licensor shall correct the items on the “listing” and/or shall commence corrective action(s) reasonably acceptable to Licensee and shall proceed with due diligence to correct the defects. All defect corrections shall be subject to re-validation. If Licensor fails to make the corrections or initiate corrections as set forth above such failure shall be deemed a material breach of this Agreement.
9. ACCEPTANCE OF SOFTWARE. The Licensed Product(s) shall be accepted as-is unless it’s not performing as described in the service contract or in the online demo of which Licensee has been given full access to prior to making the purchase. If any additional add-on (the Custom Work) custom design and or development service is required, then such service must be conforming to the requirements of the Purchase Order only upon successful completion of the validation process. If the Licensor fails within thirty (30) calendar days to correct the defects contained in the “listing,” Licensee may; (a) issue a “partial acceptance” of the Custom Work Product(s), after Licensor and Licensee enter into good faith negotiations to determine the equitable adjustment in the price to account for such deficiency; (b) conditionally accept the Custom Work (s) for a specified period of time while reserving its right to revoke acceptance if timely correction(s)/ modification(s) are not forthcoming during the agreed to time period, or (c) pursue whatever other remedies are available under this Agreement. In all cases, in which corrections and/or modifications are required to correct deficiencies discovered during validation of the Custom Work (s) the date upon which such Custom Work t(s) are re-validated shall for all intents and purposes be the “Acceptance Date.”
10. INDEMNIFICATION. A. Licensor warrants that the Software does not infringe upon or violate any patent, copyright or trade secret. Licensor shall defend and hold harmless, at its expense any action or demand brought against Licensee to the extent that it is based on a claim that the Software infringes a patent, copyright or trade secret and will pay any and all costs and damages incurred by the Licensee, including reasonable attorney fees which are attributable to such claim, provided that Licensee notifies Licensor promptly in writing of the claim and allows Licensor to fully control the defense and any settlement of such claim. The settlement does not require Licensee to pay any monetary or other type of compensation of any kind to the Licensor, claimant, or any other party. Licensee hereby agrees to reasonably participate in the defense of such claim if reasonably necessary and requested to do so by the Licensor, subject to Licensor paying all of Licensee’s reasonable expenses associated with such participation. Licensee may appear through counsel at its own expense. Should the Software become, or if in Licensor’s opinion is likely to become, the subject of any claim of infringement, Licensor may procure for the Licensee the right to continue using the Software, replace or modify the Software to make it non-infringing at no additional cost to Licensee. If neither of the aforementioned alternatives can be reasonably and/or timely accomplished Licensor and Licensee shall enter into good faith negotiations to derive the equitable adjustment to be provided to Licensee. B. Licensor shall not be liable for any claim of infringement based upon (i) use of other than the latest unmodified release of the Software made available to Licensee by Licensor if such infringement would have been avoided by the use of such release of the Software, or (ii) use or combinations of the Software with non-Licensor, programs or data if such infringements would not have occurred without such use or combinations.
11. GOVERNING LAW. This Agreement shall be governed by and construed under the laws of the state from which this Purchase Order was issued, without reference to its conflicts of law principles. Unless otherwise agreed to in writing by the Parties, venue and jurisdiction for all legal proceedings of any kind or nature brought to enforce any provisions of this Purchase Order shall lie within the state from which this Purchase Order was issued. The Parties hereby waive any right to a trial by jury.
12. COMPLIANCE WITH LAWS. A. Federal, State and Local Laws. Licensor warrants that in the performance of this Agreement, it shall comply with all applicable Federal, State and Local Laws. On its invoice or in other form satisfactory to Licensee, Licensor shall submit certification that the products covered by this Agreement were produced in compliance with all applicable requirements of Sections 6, 7, and 12 of the Fair Labor Standards Act (29 U.S.C. 201-219) as amended, and of regulations and orders of the U. S. Department of Labor issued under Section 14 thereof. B. Equal Opportunity. Licensee is an “Equal Opportunity” employer and Licensor shall, therefore comply with provisions of the Presidents Executive License 11246 as supplemented and all related regulations of the Department of Labor.
13. WAIVER. No term or provision hereof shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the Party claimed to have waived or consented.
14. SEVERABILITY. Any invalidity, in whole or in part, of any provision of this Agreement shall not affect the validity of any other part or provision of this Agreement, provided that the basic purpose of this Agreement can still be achieved.
15. CONFIDENTIAL TERMS AND CONDITIONS. Neither Party shall disclose the terms and conditions of this Agreement to any third-parties, nor shall either Party use the name of the other party in publicity, advertising, or similar activity, without the prior written consent of the other. In case of “soured relationship”, neither party has to right to bring it to the media or any social network with the purpose to damage the opposing party’s business reputation or causing economic harm regardless of the validity of the matter.
16. TAXES. All pricing provided hereunder shall include all applicable Federal, State and Local taxes as may be assessed against Licensor except those sales and/or use taxes required by law to be paid by Licensee.
17. Disclaimer Of Warranties And Liabilities Although Licensor believes the Licensed Content to be reliable, it does not claim to be 100% error free or guarantee or warrant (1) any information or materials contained in or produced by the Licensed Content, (2) the accuracy, completeness or reliability of the Licensed Content, or (3) that the Licensed Content is free from errors or other material defects. (4) Depending on local bandwidth, software and hardware being used as well as other uncontrollable factors; it's technically impossible for the timer to be exact in seconds because all electronic communications required time to encode and decode. (5) The licensed product is provided “as is,” without any warranty of any kind and licensor disclaims any and all warranties, expressed or implied, including, without limitation, warranties of merchantability or fitness or a particular purpose. In no event shall licensor be liable for: indirect, special, punitive or consequential damages including for lost profits, lost data, or otherwise. In no event shall licensor’s aggregate liability hereunder, whether arising in contract, tort, strict liability or otherwise, exceed the amount of fees paid by the end user hereunder for the license of the licensed content. (6) Digital Marketing Solutions LLC is a software development firm not a law firm. We are not licensed or qualified to give legal advice regarding to the legality of your business practice. (7) Digital Marketing Solutions LLC shall not be held responsible for any third party hardware or software associated with customer's website. In case of browsers conflict, the latest version at the time the website being developed is the defaulted browser and Digital Marketing Solutions LLC has disclosed that not all web browsers will work cooperatively with each other and if such case existed, Fire Fox browser is the defaulted one. (8) Technical support doesn't include customization work on design or coding and limited up to 15 hours per month. (9) Finding a payment gateway to process your online business is your sole responsibility and thus any contract agreement you have with your bank is outside of the scope of the project that you have with us. Our job is to help you integrate your payment processor with our software so that you can take order online. Your contract with us included one time payment integration free of charge for PayPal or Authorized.net account and any additional one shall be charged at a flat rate of $250 to $750 depending on the complexity of the processor.
18. REFUND. There is no refund after the software has been released or downloaded and there is no refund on the service or services performed unless agreed in writing otherwise. Refund is subjected to service fee and other expenses.
19. TERMINATION. A. This Agreement and the License(s) granted hereunder shall terminate upon the earliest to occur of the following: (i) thirty (30) days after Licensee gives Licensor written notice of Licensee’s desire to terminate this Agreement, for any reason, subject to payment of all License fees then due and owing; (ii) thirty (30) days after Licensor gives Licensee notice of Licensee’s breach of any material provision of this Agreement, (iii) immediately if either Party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors or (iv) expiration of the term of this Agreement. B. Within thirty (30) days of any termination Licensee shall either return to Licensor at Licensee’s expense, delete and/or destroy all Licensed product(s) and any proprietary documentation related thereto except that Licensee may retain an archival copy. If requested, Licensee shall provide written certification that all Licensed product(s) and/or proprietary documentation has been returned, deleted and/or destroyed with the exception of the copy which is retained for archival purposes.
20. OTHER SUPPORT SERVICES. Support or maintenance of the Licensed Product(s) beyond any warranty coverage described in Section 17 (“Warranties”) if any, shall be provided under a separate contractual agreement.
21. DISPUTES AND LIABILITIES. A. In addition to the other remedies provided for hereunder and except as expressly limited herein, both Parties to this Agreement shall have the full benefit of all applicable remedies generally available to a Licensor/ Licensee of products under the Uniform Commercial Code. B. In the event of any disputes between the Parties associated with this Agreement, the Parties hereby agree to work toward resolution and negotiate in good faith for a period of not less than thirty (30) days. The Parties shall both assign individuals whose responsibility it shall be to review and interpret the events and circumstances of the dispute and to resolve and/or propose to the Parties’ Senior Management a viable mutually acceptable resolution. If at any time during the resolution process the assigned individuals determine for whatever reason that the dispute cannot be resolved at the assigned level the Parties agree to escalate the dispute to ascending levels of management up to and including the Vice President of the respective organizations. If after thirty (30) days resolution has not been achieved the Parties may exercise any and all courses of resolution prescribed herein, unless the Parties otherwise mutually agree to extend the negotiation/resolution period. C. Neither Party to this Agreement shall be liable for any claim arising out of this Agreement in an amount exceeding the total contract price with the exception of the damages and costs described in Section 10 (“Indemnification”) and Section 17 (“Warranties”). In no other event shall either Party be liable hereunder for any indirect, incidental or consequential damages (including lost business profit) sustained by the other Party or any other individual or entity for any matter arising out of or pertaining to the subject matter of this Agreement. D. The Parties hereby expressly acknowledge that the foregoing limitations were fully considered by each Party to this Agreement and appropriately reflects a fair allocation of risks. E. No action arising under or related to this Agreement may be brought by one Party against the other more than two (2) years after the cause of the cause of the action arose. F. The Parties agree that this Agreement is the result of negotiations between the Parties and that no term or provision shall be construed against a Party merely because the term or provision is contained in a document drafted, prepared, written or pre-printed by that Party.
22. ASSIGNMENT. Neither the Licensor nor Licensee shall assign its rights or obligations under this Agreement without the expressed prior written consent of the other Party. Such consent shall not be unreasonably withheld. Any permitted assignment of this Agreement shall provide that the provisions of this Agreement shall continue in full force and effect and that the assigning Party shall guaranty the performance of its assignee and shall remain liable for all obligations hereunder.
23. NOTICE. Any notice or other communication hereunder required or that may be given pursuant to this Agreement shall be deemed received three (3) days after transmittal provided the correspondence is appropriately addressed, using registered mail, return receipt requested, or any of the express mail services.
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