366 DEGREES® END-USER LICENSE AGREEMENT
THIS 366 DEGREES® END-USER LICENSE AGREEMENT (this “Agreement”) is made as of the Agreement Date shown below by and between: OUTSOURCE MANAGEMENT INC. (“OMI”) and “YOU”.
IMPORTANT--READ CAREFULLY: This Agreement is a legal contract between YOU (either an individual or a single business entity) and OMI for the OMI software product identified above and below, which includes computer software and, as applicable, associated media, printed materials, and "online" or electronic documentation (the "366 DEGREES” Service Software Application).
BY CLICKING THE [ENTER] OR [ACCEPTED] ICON BELOW, OR BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE APPLICATION, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY, INDEMNIFICATION, AND TERMINATION PROVISIONS BELOW. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL, COPY, OR OTHERWISE USE THE 366 DEGREES® SERVICE SOFTWARE APPLICATION, AND EXIT NOW.
THIS AGREEMENT ALSO CONTAINS A BINDING ARBITRATION PROVISION TO WHICH YOU WILL BE BOUND IF YOU ACCEPT THE AGREEMENT.
1. DEFINITIONS.
1.1 "Documentation" means flow charts, logic diagrams, program listings, operating instructions, training materials, user manuals, and similar and related materials provided in connection with the 366 DEGREES® Service.
1.2 "366 DEGREES®” and "366 DEGREES® Service Software Application" and “Software Application” means data processing programs, along with any Updates to such programs provided to YOU by OMI in accordance with the terms of Section 2.4 below, if any. The 366 DEGREES® Service Software Application may include property of third parties who have granted licenses to OMI.
1.3 "Proprietary Information" means all that information which OMI desires to protect against unrestricted disclosure or competitive use and which is designated as such in writing by OMI or is disclosed orally by OMI and within thirty (30) days thereafter is reduced to tangible form pursuant to this Agreement. Proprietary Information may include property of third parties who have granted licenses to OMI.
1.4 "Update(s)" means Error corrections, modifications, Upgrades, enhancements, extensions or revisions to or other derivative work of the 366 DEGREES® Service Software Application and/or documentation made by or on behalf of OMI.
1.5 "Upgrade(s)" means any enhancements, product capability expansion or other derivative work of the 366 DEGREES® Service Software Application and/or documentation made by or on behalf of OMI, and for which YOU may have paid a nominal fee.
2. 366 DEGREES® LICENSE GRANT.
2.1 YOU may access the 366 DEGREES® Service Software Application provided that YOU abide by the terms and conditions of the 366 DEGREES® Service Software Application sales agreement established between YOU and OMI. The terms and conditions assume that multiple users will utilize the Software Application. For example, if 5 different users access the Software Application each user will be presumed to be under your control and will be subject to the terms and conditions of the sale agreement between YOU and OMI.
2.2 This Agreement, the 366 DEGREES® Service Software Application, the Documentation, any other information provided by OMI to YOU and any licenses and rights granted hereunder, may not be sold, leased, loaned, assigned, or otherwise transferred, in whole or in part, by or on behalf of YOU.
2.3 YOU shall not disassemble, decompile or otherwise reverse engineer the 366 DEGREES® Service Software Application.
2.4 In the event OMI, in its sole discretion, provides Upgrades to the 366 DEGREES® Service Software Application and/or Documentation, and YOU accept the same, such Upgrades shall be deemed part of the 366 DEGREES® Service Software Application granted to YOU hereunder and shall be and remain subject to the terms and conditions of this Agreement.
2.5 YOU may not rent, lease, lend, timeshare, act as a service bureau or subscription service, or provide commercial hosting services of the 366 DEGREES® Service Software Application.
2.6 The 366 DEGREES® Service Software Application may include source code provided as a standard service Upgrade, which source code shall be owned, at all times, exclusively by OMI, and shall be governed by the terms of this Agreement.
3. NO OBLIGATIONS.
3.1 The 366 DEGREES® Service Software Application is delivered “as-is”, and YOU shall not require any concessions of OMI or Reseller, including requiring Reseller or OMI to perform any obligations or to incur any liability with regard thereto.
3.2 THERE ARE TECHNOLOGICAL MEASURES IN THE 366 DEGREES® SERVICE SOFTWARE APPLICATION THAT ARE DESIGNED TO PREVENT UNAUTHORIZED USE OF THE 366 DEGREES® SERVICE. YOU may no longer have exercisable rights to the 366 DEGREES® Service Software Application under this Agreement after a designated period time. YOU may also need to contact OMI or its affiliates to reactivate the 366 DEGREES® Service Software Application after a designated period of time. OMI will use those measures to confirm that YOU have authorized access to the 366 DEGREES® Service Software Application.
3.3 YOU understand that the 366 DEGREES® Service Software Application may not be accessible by YOU from time to time due to planned or unplanned maintenance requirements, including installation of Updates, Upgrades, repair of hosting devices, etc. As such, OMI does not guarantee any uptime of the 366 DEGREES® Service Software Application or, by extension, YOUR access to the same.
4. TERM AND TERMINATION.
4.1 The "Initial Term" of this Agreement shall commence on the Agreement Date and shall continue for a period of twelve (12) months, unless terminated earlier as provided herein. Either party may terminate this Agreement effective upon the end of the Initial Term by written notice to the other at least sixty (60) days prior to the end of the Initial Term. If not terminated at the end of the Initial Term, this Agreement shall automatically renew for successive periods of one (1) year each (each, a “Renewal Term”), unless terminated by either party at least sixty (60) days before the end of any such Renewal Term. The Initial Term, along with all Renewal Terms, is collectively referred to herein as the “Term.”
4.2 Either party may terminate this Agreement if there is a default of a material obligation of the other party, which is not cured within thirty (30) days following written notice from the non-defaulting party.
4.3 Upon termination of this Agreement, use of the 366 DEGREES® Service Software Application shall be discontinued. Immediately upon termination, this Agreement and all rights granted hereunder shall automatically terminate, and YOU shall have no further rights or access to the 366 DEGREES® Service Software Application and/or the Documentation. Upon termination, all amounts then due and owing by YOU to Reseller (or OMI) shall become immediately due and payable.
5. FEES AND PAYMENT.
5.1 In consideration of this Agreement and rights in the 366 DEGREES® Service Software Application and Documentation granted by OMI hereunder, YOU agree to pay to (OMI) the Fees specified in the invoices or purchase acknowledgements provided in connection with this Agreement.
5.2 Payment of 366 DEGREES® Service Program Fees will be paid to OMI on a monthly basis for the previous month’s transaction services.
6. PROPRIETARY INFORMATION.
6.1 All title and copyrights in and to the 366 DEGREES® Service Software Application and Documentation (including, without limitation, any images, photographs, animations, video, audio, music, text, and "applets" incorporated into the 366 DEGREES® Service Software Application), the accompanying media and printed materials, and any copies of the 366 DEGREES® Service Software Application are owned by OMI or its suppliers. The 366 DEGREES® Service Software Application is protected by copyright laws and international treaty provisions. Therefore, you must treat the 366 DEGREES® Service Software Application like any other copyrighted material, subject to the provisions of this Agreement.
6.2 Ownership of all trademark rights afforded under common law, state law and/or federal law in connection with the 366 DEGREES® Service Software Application will remain at all times with OMI. No license, right or interest in any Trademark, trade name or service mark of OMI is granted under this Agreement.
6.3 The 366 DEGREES® Service Software Application and Documentation are provided with RESTRICTED RIGHTS when used by the U.S. Government. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software -- Restricted Rights at 48 C.F.R. 52.227-19, as applicable. Manufacturer for such purpose is OMI.
6.4 Should YOU decide to transmit to OMI's website by any means or by any media any materials or other information (including, without limitation, ideas, concepts or techniques for new or improved services and products), whether as information, feedback, data, questions, comments, suggestions or the like, you agree such submissions are unrestricted and shall be deemed non-confidential and YOU automatically grant OMI and its assigns a nonexclusive, royalty-free, worldwide, perpetual, irrevocable license, with the right to sublicense, to use, copy, transmit, distribute, create derivative works of, display and perform the same.
6.5 OMI hereby states and YOU acknowledge that the 366 DEGREES® Service Software Application and Documentation constitute a valuable asset of OMI and are to be considered Proprietary Information.
6.6 YOU shall treat the Proprietary Information with the same degree of care as YOU treat your own proprietary information, but in all cases using at least a reasonable degree of care.
6.7 YOU shall not use, disclose, make or have made any copies of the Proprietary Information, in whole or in part, without the prior written authorization of OMI; provided, however, that YOU shall be able to maintain training, documentation, best practices and other necessary resources to utilize the 366 DEGREES® Service Software Application during the Term.
6.8 YOU shall not publish any results of benchmark tests run on the 366 DEGREES® Service Software Application.
7. WARRANTIES.
7.1 OMI hereby warrants its ownership of the 366 DEGREES® Service Software Application and its right and power to enter into this Agreement and, to the best of its knowledge, the right to grant to YOU the rights to use the 366 DEGREES® Service Software Application, as set forth in Section 2 above. OMI warrants that, to the best of its knowledge and belief, the 366 DEGREES® Service Software Application and Documentation do not infringe any copyright, industrial design, patent, trade secret or trademark rights of any third party.
7.2 DISCLAIMER OF WARRANTY
THIS 366 DEGREES® SERVICE SOFTWARE APPLICATION AND THE ACCOMPANYING FILES ARE PROVIDED "AS IS." OMI AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE 366 DEGREES® SERVICE SOFTWARE APPLICATION OR SUCH FILES. OMI AND ITS SUPPLIERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AS TO TITLE OR INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
Good data processing procedure dictates that any program be thoroughly tested with non-critical data before relying on it. Accordingly, YOU must assume the entire risk of using the 366 DEGREES® Service Software Application. ANY LIABILITY OF OMI FOR A DEFECTIVE COPY OF THE 366 DEGREES® SERVICE SOFTWARE APPLICATION WILL BE LIMITED EXCLUSIVELY TO REFUND OF THE INITIAL LICENSE FEE OMI RECEIVED FROM YOU. IN NO EVENT WILL OMI OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING ANY LOST PROFITS OR LOST SAVINGS, EVEN IF A REPRESENTATIVE OF OMI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY.
7.3 All Upgrades and Updates are provided on an "AS IS" basis without warranty of any kind.
7.4 The warranties set forth in this Section 7 are expressly subject to the limitations of Section 9 below.
8. PATENT, TRADE SECRET AND COPYRIGHT INDEMNIFICATION.
8.1 OMI shall have the right to control the defense of any action arising out of any breach or claimed breach of any warranty contained in Article 7.1 hereof. OMI will indemnify and hold YOU harmless from and against any action, suit, loss, cost, liability and expense (including reasonable counsel fees) arising out of any breach or claimed breach of the warranties contained in Article 7.1 hereof; provided, that YOU have given prompt written notice of such action, suit, loss, cost, liability or expense to OMI. Notwithstanding the foregoing, YOU may, at YOUR sole expense and risk, participate in the defense of such action if YOU so desire.
8.2 THIS SECTION 8 STATES THE ENTIRE LIABILITY OF OMI WITH RESPECT TO INFRINGEMENT OF COPYRIGHTS, TRADE SECRETS, PATENTS AND OTHER INTELLECTUAL PROPERTY RIGHTS BY THE 366 DEGREES® SERVICE SOFTWARE APPLICATION, DOCUMENTATION OR ANY PARTS THEREOF, AND OMI SHALL HAVE NO ADDITIONAL OR FURTHER LIABILITY WITH RESPECT TO ANY ALLEGED OR PROVEN INFRINGEMENT.
9. LIMITATION OF LIABILITY AND INDEMNIFICATION.
9.1 IN NO EVENT WILL OMI BE LIABLE FOR ANY LOST REVENUES OR PROFITS OR OTHER SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, EVEN IF OMI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 OMI’s maximum liability for damages with regard to this Agreement and the 366 DEGREES® Service Software Application provided to YOU hereunder shall be limited to the Fees paid by YOU under this Agreement for the particular 366 DEGREES® Software Application copy which caused the damages.
9.3 INDEMNIFICATION: YOU agree to indemnify and hold harmless OMI, its successors, and assigns, from and against any loss, liability, claim, or damage (including reasonable attorneys fees) sustained by OMI as a result of any claim or allegation that YOUR use of the Software Application caused any patent, copyright, trade secret, or other intellectual property right of any third party to be infringed. If such a claim arises, or in either party's judgment is likely to arise, OMI agrees to take reasonable measures to prevent or mitigate any further actions through the Software Application that may be alleged as infringement by the third party, subject to YOUR approval, so long as any such preventative or mitigating measure does not adversely effect the Software Application. Any preventative or mitigating measure taken by OMI on YOUR behalf, however, shall not relieve YOU of your indemnity obligations with respect to any loss, liability, or damage that has or may be incurred with respect to the Software Application prior to the cessation of the infringement. In connection with the foregoing indemnity obligations, YOU shall give OMI prompt written notice of any claim, demand, or action of any such infringement alleged to have resulted from YOUR use of the Software Application.
10. FORCE MAJEURE.
If the performance by any party to this Agreement of any obligation of such party hereunder, except the making of payments hereunder, is prevented, restricted or interfered with by any act or condition whatsoever beyond the reasonable control of the affected party, the party so affected, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such prevention, restriction or interference; provided, however, that the party so affected shall take all reasonable steps to avoid or remove such cause of non-performance and shall resume performance hereunder whenever such causes are removed.
11. TAXES.
All payments required under Section 5 or otherwise under this Agreement are exclusive of taxes and YOU agree to bear and be responsible for the payment of all such taxes including, but not limited to, all sales, use, excise, rental receipt, personal property or other taxes which may be levied or assessed in connection with this Agreement.
12. CONSENT FOR USE OF DATA.
YOU agree that OMI and its affiliates may collect and use technical information gathered as part of the transaction processing and/or support services provided, if any, related to the 366 DEGREES® Service Software Application. OMI may use this information solely for determining YOUR invoices or for providing support services, and will not disclose this information in a form that identifies YOU.
13. GENERAL PROVISIONS.
13.1 All provisions hereof regarding or relating to liability, limits thereon and/or proprietary information shall survive any termination of this Agreement.
13.2 If any term of this Agreement is held to be invalid or unenforceable, the remaining terms shall continue to be binding on both parties.
13.3 This Agreement, and any and all exhibits and schedules attached hereto, all of which are incorporated herein by this reference, constitutes the entire and final agreement among the parties with respect to the subject matter hereof, and any and all prior or contemporaneous discussions, agreements, representations or warranties are null and void. There are no agreements, understandings, warranties or representations among the parties except as set forth herein. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their successors and permitted assignees.
13.4 YOU agree to comply fully with all applicable laws, regulations, ordinances and rules governing its use of the 366 DEGREES® Service Software Application, including all relevant export laws and regulations of the United States and other applicable export and import laws to assure that neither the 366 DEGREES® Service Software Application, nor any derivative product thereof, are exported, directly or indirectly, in violation of applicable laws.
13.5 This Agreement is made under and shall be governed by and construed in accordance with the laws of the State of Georgia, as a contract made and performed therein with venue and all jurisdictions, including personal and subject matter jurisdiction, being specifically designated as the Superior Court of Forsyth County, Georgia.
13.6 All headings contained in this Agreement are for reference purposes only and are not intended to affect in any way the meaning or interpretation of this Agreement.
13.7 YOU represent and warrant that the execution, delivery and performance by YOU of and under this Agreement does not and will not constitute a violation or breach of any agreement or law by which YOU are bound.
13.8 This Agreement may be executed in two or more counterparts, and each counterpart shall be deemed an original.
13.9 BINDING ARBITRATION. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
13.10 The pronouns used herein shall include, where appropriate, either gender or both, singular and plural. The word “including” when used in this Agreement shall be deemed to mean “including, but not limited to”. YOU agree and acknowledge that YOU have the opportunity to be represented by legal counsel in the review of this Agreement and, therefore, by signing this agreement YOU attest that the terms of this Agreement were negotiated with OMI “at arm’s length.” Therefore, this Agreement shall not be more strictly construed against either party by reason of the fact that one party may have drafted this Agreement.
13.11 This Agreement shall not be effective until executed and delivered by YOU and OMI. This Agreement shall not be modified, changed, altered or amended in any way except through a written amendment duly executed on behalf of YOU and OMI.
13.12 No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same provision or any other provision, and no waiver shall be effective unless made in writing and signed by a duly authorized representative of the party waiving that breach.
