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ONLINE SOFTWARE LICENSE AGREEMENT
THIS SOFTWARE LICENSE AGREEMENT (“License”) is made as of the Effective Date by and between EVENT LIGHTNING and BALLOON ORDERING with offices located at 4163 Acapulco Drive, Campbell, CA 95008 (“Licensor”) and (“Licensee”).
W I T N E S E T H
WHEREAS, Licensor is a California company formed for the purpose of developing and marketing small business balloon decor software; and
WHEREAS, Licensor owns certain computer software for managing balloon ordering and balloon decorations; and
WHEREAS, Licensee desires to license
Balloon Tools
Balloon Ordering
NOW, THEREFORE, in consideration of the mutual benefits of the covenants and restrictions herein contained, Licensor and Licensee hereby agree as follows:
ARTICLE I: RECITALS AND DEFINITIONS
Section 1.01 — Recitals: The above recitals and identification of parties is true and correct.
Section 1.02 — Definitions: The following definitions shall apply:
(1) Acceptance Date: The term “Acceptance Date” shall mean the date the Software is accepted by Licensee as provided under this License. More specifically, it’s the date that the software shall be fully enabled and recurring charges shall begin.
(2) Access: The term “access” and variants thereof shall mean to store data in, retrieve data from or otherwise approach or make use of (directly or indirectly) through electronic means or otherwise the Software.
(3) Cancellation Notice: The term “Cancellation Notice” shall mean that written notice sent by one party to this License to the other party to this License seeking to cancel this License because of breach by such other party.
(4) Computer: The term “Computer” shall mean any desktop or laptop but excludes any handheld mobile device such as cell phones, smart phones, pdas, etc.
(5) Documentation: The term “Documentation” shall mean that certain BALLOON ORDERING User’s Guide including all updates thereto.
(6) Defect Notice: The term “Defect Notice” shall mean that certain written notice from Licensee to Licensor identifying discrepancies between the actual performance of the Software and the performance of the Software represented in the Documentation.
(7) Effective Date: The term “Effective Date” shall mean the date this License is signed by Licensor.
(8) Implement: The term “implement” and variants thereof (including, but not limited to, the terms “implementation”, “implementing” and “implemented”) shall mean to load and make available for user access.
(9) License Fee: The term “License Fee” shall mean that certain fee charged to Licensee by Licensor for the license granted to Licensee by Licensor under this License.
(10) License Term: The term “License Term” shall mean a period of time starting with the Effective Date and continuing twenty years thereafter.
(11) Licensee: The term “Licensee” shall mean [Name of Licensee].
(12) Remote Access: The term “Remote Access” shall mean telecommunications access to the Software using an network, including a Wide Area Network, a Local Area Network, or through the use of a modem.
(13) Software: The term “Software” shall mean the executable code for that certain software commonly referred to as [Name of Software] as made available to Licensee by Licensor on the Effective Date.
(14) Unauthorized Access: The term “Unauthorized Access” shall mean any access to the Software or Documentation except for the exclusive purposes of using the software for Licensee’s Event Management needs.
(15) Unauthorized User: The term “Unauthorized User” shall mean any individual who accesses the Software or Documentation except for employees authorized by Licensee to access the Software for the purposes of Licensee’s Event Management needs.
ARTICLE II: SCOPE OF LICENSE
Section 2.01 — Grant of License: Licensor hereby grants to Licensee a non-exclusive and non-transferable license to use the Software on the Computer and to use the Documentation for the License Term.
Section 2.02 — Acceptance: Licensor shall implement any and all necessary Software on the computer and online. Upon completing implementation of the Software, Licensor shall demonstrate the Software to Licensee. Upon completing demonstration of the Software, the Software shall be deemed delivered to Licensee. The Software shall be deemed accepted by Licensee upon delivery of the Software unless Defect Notice is received by Licensor by such thirtieth day. Upon receiving Defect Notice from Licensee, Licensor shall review the asserted discrepancy to determine if the discrepancy is valid. If, in the reasonable professional judgment of Licensor the discrepancy is valid, Licensor shall correct the discrepancy and resubmit the Software for acceptance by Licensee. If, in the reasonable professional judgment of Licensor such discrepancy is not valid, Licensor shall submit to Licensee a written explanation of the reasons why such asserted discrepancy is not valid. The written explanation of Licensor set forth herein shall be deemed accepted by Licensee upon receipt.
Section 2.03 — Risk of Loss of Software: N/A
Section 2.04 — Authorized Use: Licensee shall prevent Unauthorized Users from accessing the Software. Licensee shall prevent Unauthorized Access to the Software.
ARTICLE III: PAYMENT
Section 3.01 — Fees: Licensee shall pay all fees according to Attachment A
Section 3.02 — Costs: Licensee shall pay all direct costs incurred by Licensor in providing any services pursuant to this License. Such direct costs shall include (without limitation) postage, telephone, travel, material and reproduction costs.
Section 3.03 — Invoicing and Payment: Licensor shall invoice Licensee periodically according to the attached Fee Schedule for any costs incurred by Licensor in providing services under this License. Such invoice shall be accompanied by receipts evidencing such costs. Licensee shall pay any such invoice in full within thirty days of receipt.
Section 3.04 — Taxes: Licensee shall pay any and all applicable taxes.
ARTICLE IV — TERMINATION
Section 4.01 — Termination Limitations: This License may only be terminated as provided under this Article IV.
Section 4.02 — Term: This License shall be valid for the License Term except as extended hereunder.
Section 4.03 — Termination: Either party may terminate this License for any reason with 30 days notice of said termination to the other party.
Section 4.04 — Cancellation for Cause: If a party violates its obligations under this License, the other party may cancel the License by sending Cancellation Notice describing the noncompliance to the noncomplying party. Upon receiving Cancellation Notice, the noncomplying party shall have thirty days from the date of such notice to either cure any such noncompliance or, if the noncompliance cannot be cured within such thirty day period, to begin curing such noncompliance in good faith. If such noncompliance is not cured within the required thirty day period, or, if the noncompliance cannot be cured within such thirty day period and the noncomplying party does not make a good faith effort to begin curing such noncompliance within such thirty day period, the party providing Cancellation Notice shall have the right to cancel this License as of the thirty-first day after the date of the Cancellation Notice.
Upon the cancellation of said service, Licensor shall have the right to terminate or limit Licensee’s access to the Software.
Section 4.05 — Destruction of Software upon Termination: Upon termination or cancellation of this License, for any reason or by any party, Licensee shall destroy all Software provided to Licensee by Licensor pursuant to this License and shall provide Licensor with a certificate of compliance with this Section 4.05 signed by an authorized representative of Licensee.
Section 4.06 – Customer’s Data
Upon termination of this License, Licensor will make its best effort to, upon request of Licensee, to return all data of Licensee to Licensee that may reside of Licensor’s servers.
ARTICLE V: WARRANTY
Section 5.01 — Representations: Licensor represents and warrants that the Software shall perform as represented in the Documentation and will provide the functionality listed in Attachment B.
Section 5.02 — Warranty: The services to be provided by Licensor hereunder shall be performed on a best efforts basis and shall conform to the standards generally observed in the industry for similar services. Such services shall be in compliance with all applicable laws, rules, regulations or orders.
Section 5.03 — Original Development: Licensor represents and warrants that the Software is owned exclusively by Licensor and shall not infringe upon or violate any patent, copyright, trade secret or other property right of any third party.
Section 5.04 — WARRANTY LIMITATION: THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES OF MERCHANTABILITY.
Section 5.05 — Indemnification: Licensor shall defend, indemnify and hold harmless Licensee (including employees, consultants, agents, and subcontractors of Licensee) against any liability arising from the negligence of Licensor or any claim by any third party against Licensee for claimed violations of trade secrets, proprietary information, trademark, copyright or any patent rights resulting from Licensee’s use of the Licensed Software. If Licensee’s quiet enjoyment and use of the Software is disrupted as a result of a third party claim, Licensor shall perform one or all of the following actions within one year of the date such third party’s claim is discovered by Licensee:
(1) Replacement: Replace the Software by implementing on the Computer a non-infringing software product of equivalent functional and performance capability of the Software;
(2) Modification: Modify the Software to avoid the infringement without eliminating the functional and performance capabilities of the Software as described in the Documentation;
(3) Obtain License: Obtain a license from the third party claiming infringement for Licensee’s use of the Software.
ARTICLE VI: INTELLECTUAL PROPERTY
Section 6.01 — Ownership and Title: Title to the Software and Documentation including ownership rights to patents, copyrights, trademarks and trade secrets therein shall be the exclusive property of Licensor.
Section 6.02 — Reverse Engineering: Licensee shall not reverse engineer the Software.
Section 6.03 — Confidentiality: Licensee hereby acknowledges that the Software and the Documentation may contain information that may be trade secret and proprietary to Licensor. Licensee hereby agrees not to disclose such information except to persons and organizations expressly authorized by Licensor to receive such information. Licensee shall not remove or alter any copyright notices or proprietary legends affixed by Licensor to the Software.
Section 6.04 — Copies: All software resides solely on Licensor’s servers under Licensor’s exclusive possession, custody, and control. Licensee shall not attempt to make any copies of the software.
Section 6.05 –Indemnification: Except as provided in Section 5.05, Licensee shall defend, indemnify and hold harmless Licensor against any damages or liability arising from use of the Software or Documentation by Licensee.
Section 6.06 — Limitation of Damages: Licensor shall not be liable for any lost profits, or incidental or consequential damages resulting from, or arising out of, implementation, access or use of the Software or Documentation by Licensee. Licensor shall not be liable for any failure to perform its obligations under this License because of circumstances beyond the control of Licensor, which such circumstances shall include (without limitation) natural disaster, terrorism, labor disputes, war, declarations of governments, transportation delays, failure of the Computer, telecommunications failure and misuse of the Software or Documentation by Licensee.
Section 6.07 — Continuation: The terms and provisions of this Article VI shall survive termination of this License.
ARTICLE VII: MISCELLANEOUS
Section 7.01 — Assignments: All assignments of rights under this License by Licensee without the prior written consent of Licensor shall be void.
Section 7.02 — Entire License: This License contains the entire understanding of the parties and supersedes previous verbal and written agreements between the parties concerning licensing of the Software.
Section 7.03 — Equitable Remedies: The parties hereby acknowledge that damages at law may be an inadequate remedy. Therefore, Licensor shall have the right of specific performance, injunction or other equitable remedy in the event of a breach of this License by Licensee.
Section 7.04 — Amendments and Modifications: Waivers, alterations, modifications or amendments of a provision of this License shall not be binding unless such waiver, alteration, modification or amendment is in writing and signed by an authorized representative of both parties.
Section 7.05 — Severability: If a provision of this License is rendered invalid, the remaining provisions shall remain in full force and effect.
Section 7.06 — Captions: The headings and captions of this License are inserted for reference convenience and do not define, limit or describe the scope or intent of this License or any particular section, paragraph, or provision.
Section 7.07 — Counterparts: This License may be executed in multiple counterparts, each of which shall be an original, but which together shall constitute one and the same instrument.
Section 7.08 — Governing Law: This License is governed by the laws of the State of California and venue shall be County of Santa Clara, State of California
Section 7.09 — Notice: Notices shall be in writing and shall be deemed delivered in person when delivered by courier or mailed postage prepaid by Certified or Registered Mail — Return Receipt Requested — to the person and address designated below. Notice shall be deemed given on the date of receipt — as evidenced in the case of Certified or Registered Mail by Return Receipt.
Section 7.10 — Pronouns/Gender: Pronouns shall refer to the masculine, feminine, neuter, singular or plural as the context shall require.
Section 7.11 — Bankruptcy: If either party must institute, defend, appear or attend a bankruptcy proceeding as a result of the filing of bankruptcy by the other party, fees and expenses shall be born by the filing party. If either party has a bankruptcy proceeding filed against it, the other party shall recover attorney fees, expert witness fees, and other costs incurred by such other party in connection with the bankruptcy proceeding, hearing or trial.
Section 7.12 — Waiver: Waiver of breach of this License shall not constitute waiver of another breach. Failing to enforce a provision of this License shall not constitute a waiver or create an estoppel from enforcing such provision.
Section 7.13 — Relationship of the Parties: It is agreed that the relationship of the parties is primarily that of Licensee and Licensor. Nothing herein shall be construed as creating partnership, employment relationship, or agency relationship between the parties, or as authorizing either party to act as agent for the other. Each party maintains its separate identity.
Section 7.14 — Arbitration: Any controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by binding arbitration in accordance with the Arbitration Rules of JAMS in San Jose, California. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Qualified Arbitrators shall be selected by the parties in accordance with the Arbitration Rules of JAMS. Each party shall have the right of discovery as set forth by the rules and procedures of JAMS. The Arbitration shall be administered by JAMS.
Section 7.15 — Assurances: Each party hereby represents and warrants that all representations, warranties, recitals, statements and information provided to each other under this License are true, correct and accurate as of the date of this License to the best of their knowledge.
Section 7.16 — Litigation Expense: In the event of litigation or arbitration arising out of this Agreement, each party shall pay its own costs and expenses of litigation and arbitration (excluding fees and expenses of arbitrators and administrative fees and expenses of arbitration).
Section 7.17 – Prohibited Uses: In no event shall the software be used for any purposes that would reasonably be construed as promoting lewd and lascivious activities or behavior. Software shall not be used to store legally sensitive information such as social security numbers, bank account numbers, or credit card numbers or driver’s license information.