END USER LICENSE AGREEMENT
This End User License Agreement
is between Licensee (defined below) and Green Shades Software, Inc., a Florida
corporation, regarding Licensee's use of the Software (defined below) and
related documentation and other materials.
When Licensee uses the Software,
Licensee acknowledges that Licensee has read this Agreement (defined below),
understands it, and agrees to be bound by its terms. Any individual that acts on behalf of a
company or other entity warrants that such individual is duly authorized to
enter into this Agreement on behalf of that company or other entity. If
Licensee does not agree to the terms and conditions of this Agreement, Licensee
is not permitted to use the Software.
BEFORE CLICKING ON THE "I
AGREE" BUTTON, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS
AGREEMENT. BY CLICKING ON THE "I
AGREE" BUTTON, LICENSEE IS CONSENTING TO BE BOUND BY AND IS BECOMING A
PARTY TO THIS AGREEMENT. IF LICENSEE
DOES NOT AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS
AGREEMENT, CLICK THE "I DISAGREE" BUTTON. IF THE "I DISAGREE" BUTTON IS
SELECTED, LICENSEE IS NOT PERMITTED TO USE THE SOFTWARE.
1. DEFINITIONS.
1.1 Defined Terms.
Capitalized terms used in this Agreement have the following meanings:
(a) "Agreement"
means this End User License Agreement and any other document incorporated
herein by reference, including any Purchase Orders, as it may be amended from
time to time.
(b) "Archive Service"
has the meaning set forth in Section 5.2(a).
(c) "As-Documented
Warranty" has the meaning set forth in Section 9.1(a).
(d) "Authorized User"
means an employee or agent of Licensee that is assigned by Licensee to use the
Software for legitimate business purposes.
(e) "Breach"
means a misrepresentation made by a Party in this Agreement or a violation by a Party of any covenant or warranty in this
Agreement.
(f) "Breaching Party"
has the meaning set forth in Section 12.2(a).
(g) "Bug"
has the meaning set forth in Section 7.2.
(h) "Bug Report"
has the meaning set forth in Section 7.2.
(i) "Business Day"
means a day other than a Saturday, Sunday or other day on which commercial
banks in Jacksonville, Florida are authorized or required by law to close.
(j) "Confidential
Information" means Protected Information and information that: (i) is
disclosed in writing or other tangible form to the Receiving Party by the
Disclosing Party and is designated in such writing or tangible form as
confidential; (ii) is not generally known in the relevant industry or industry
segment; and (iii) affords possessors of the information a commercial or
business advantage over others who do not have the information. Confidential Information does not include any
information that, through no fault of the Receiving Party, is or becomes
generally known or is developed independently by or on behalf of the Receiving
Party, or is disclosed to the Receiving Party by a third party not having an
obligation of confidence to the Disclosing Party.
(k) "Disclosing Party"
means a Party disclosing Confidential Information to the other Party.
(l) "Fee"
has the meaning set forth in Section 2.2.
(m) "Governmental
Authority" means the United States of America, any state,
commonwealth, territory or possession thereof and any political subdivision or
quasi-governmental authority of any of the same, including, without limitation,
any unit, tribunal, department, commission, board, bureau, administrative or
regulatory agency or court.
(n) "Greenshades"
means Green Shades Software, Inc., a Florida corporation.
(o) "Identity Theft
Prevention Program" means that certain program adopted by Greenshades
in compliance with the requirements of the Red Flag Rules of the Federal Trade
Commission.
(p) "Initial Term"
has the meaning set forth in Section 3.1.
(q) "Legal Requirement"
means applicable common law and any applicable statute, permit, ordinance, code
or other law, rule, regulation or order enacted, adopted, promulgated or
applied by any Governmental Authority, including any applicable order, decree
or judgment handed down, adopted or imposed by any Governmental Authority, all
as in effect from time to time.
(r) "License"
has the meaning set forth in Section 2.1.
(s) "Licensee"
refers to a person (whether an individual or an entity) that has entered into a
Purchase Order with Greenshades, paid all applicable fees, and been duly
granted a License for the use of the Software.
This term also applies to such person's Authorized Users.
(t) "Material Bug"
means a Bug that renders the Software inoperable.
(u) "Nonbreaching
Party" has the meaning set forth in Section 12.2(a).
(v) "Party"
means either Greenshades or Licensee.
(w) "Protected
Information" includes, but is not limited to, employer identification
numbers, social security numbers, names, addresses, salary information, bank
account information, and credit card information.
(x) "Purchase Order"
means a separate written agreement between Licensee and Greenshades specifying
the applicable Software, the term of the subscription, and the fees payable to
Greenshades in connection with this Agreement.
The Purchase Order may consist of an online order form submitted to
Greenshades, a telephone order placed with Greenshades that results in an
invoice and confirmation of order provided to Licensee, or another written arrangement.
(y) "Receiving Party"
means a Party receiving Confidential Information from the other Party.
(z) "Renewal Date"
means the day after the Initial Term or any Renewal Term expires, unless
renewal is cancelled in accordance with Section 2.2.
(aa) "Renewal
Fee" has the meaning set forth in Section 2.2.
(bb) "Renewal
Term" has the meaning set forth in Section 3.2.
(cc) "Software"
means the applicable Greenshades product as specified in the Purchase Order.
(dd) "Software
Documentation" means all user manuals provided in connection with the
Software.
(ee) "Term"
means the Initial Term together with any Renewal Terms.
(ff) "Third Party Vendor" has the meaning set forth in Section
6.1.
(gg) "Trademarks"
has the meaning set forth in Section 8.1.
(hh) “Unauthorized
Code” means any virus, Trojan horse, worm, or other software routines or
hardware components designed to permit unauthorized access; to disable, erase,
or otherwise harm software, hardware, or data; or to perform any other such
actions.
2. GRANT OF LICENSE AND FEES
2.1 Grant of License. The Software is licensed to Licensee by
Greenshades on a limited basis and solely for the term of Licenee's
subscription. In consideration of
Licensee's compliance with all of the terms and conditions of this Agreement,
Greenshades hereby grants Licensee a limited, personal, non-exclusive,
non-assignable right to use the Software solely as described in this Agreement
and as described in any Software Documentation Greenshades may provide or
otherwise make available to Licensee (the "License"). The License granted to Licensee may not be
sublicensed, distributed, commercially distributed, or otherwise shared with
any other person without the express prior written consent of Greenshades. This
Agreement does not grant Licensee any rights to patents, copyrights, trade
secrets, trade names, trademarks (whether registered or unregistered), or any
other rights, functions or licenses in respect of the Software. If Licensee unlawfully creates any derivative
work based on the Software, then Greenshades will be the owner of all such
derivative works (and all intellectual property rights relating thereto) and
any proceeds or profits derived therefrom by Licensee. The License only entitles Licensee to the use
of the most recent version of the Software that Greenshades has released for
use.
2.2 Fees. Prior to commencement of the License,
Licensee shall pay Greenshades the fees specified in the applicable Purchase
Order (the "Fee"). Except as otherwise provided in an applicable
Purchase Order, Greenshades shall invoice Licensee within thirty (30) days of
the Renewal Date for an amount equal to the then-standard rate charged by
Greenshades to similarly-situated customers for a license to use the Software
(a "Renewal Fee"). Any Renewal Fee shall be due and payable from
Licensee to Greenshades prior to the Renewal Date.
3. TERM
3.1
Initial Term. Unless a different period is specified in the
applicable Purchase Order, the License is for a minimum one-year period from the
effective date specified in the applicable Purchase Order (the "Initial Term").
3.2
Extension of Term. Except as otherwise provided in an applicable
Purchase Order, unless either Party gives the other Party notice of cancelation
at least thirty (30) days prior to the end of the Term, the License shall
automatically extend for successive one-year periods (each a "Renewal Term") which shall
commence on the Renewal Date.
3.3 Expiration of Term. Upon the expiration of the Term or other
termination of this Agreement, all use of the Software by Licensee shall
immediately cease.
4. ACCESS AND USE OF SOFTWARE
4.1 Initial Setup.
It is Licensee's sole responsibility to determine whether the Software
is appropriate for Licensee's business needs and is compatible with Licensee's
existing computer system and software programs.
Greenshades will provide commercially reasonable technical support to
Licensee at the commencement of the Term to ensure that Licensee is capable of
accessing and using the Software. This
technical support shall include access to user manuals and telephone support.
4.2 Access to Software.
Some Software products will download and install to Licensee's local
computer system and some Software products will be available for Licensee's access
and use via a secure website provided and maintained by Greenshades. An appropriate Internet connection is
necessary to access and use the Software.
Greenshades shall inform Licensee of the applicable website(s) through
which the Software may be accessed. From
time to time, Greenshades may update or modify the website(s) used to access
the Software, but shall inform Licensee of any such update or modification. It
is Licensee's responsibility to maintain an appropriate Internet connection and
computer system running the most recent and up-to-date version of Internet
Explorer, Firefox, Chrome, or similar software, which shall be used to access
the Software. Greenshades does not and
will not provide copies of the Software on physical media (e.g., CDs).
4.3 No Backup Copy Rights.
Although Licensee's data and user-generated reports shall be stored
locally on Licensee's computer system, Licensee has no right to any backup copy
of the operational Software.
4.4 Security of Account Information. It shall be Licensee's responsibility to
register its user information, and create a secure user name and password for
each Authorized User that complies with the Greenshades's requirements, as
modified from time to time. Licensee
shall limit use of its user name and password to Authorized Users and for
internal use only. Greenshades shall
have the right to suspend or otherwise restrict Licensee's access of the
Software in the event any suspicious activity is detected with respect to use
of Licensee's account information. In
any such event, Greenshades shall notify Licensee of such action and shall work
with Licensee to resolve any suspicious activity.
4.5 Catastrophic Loss Arrangement. To ensure the availability of the Software to
Licensee, Greenshades shall take commercially reasonable measures to ensure
that loss of power or damage to the primary servers hosting the Software
(including interruptions caused by malicious third-party software) shall not
render the Software unavailable for any period longer than forty-eight (48)
hours. These measures shall include
hosting the Software on backup servers, providing alternate webservers for
access, and maintaining a copy of all recent versions of the Software's source
code on physical media in a secure location.
5. SECURITY OF LICENSEE DATA AND
DATA RETENTION
5.1 Licensee Safeguards.
(a) Account Access Information. Licensee shall safeguard its user name and
password by restricting access to only Authorized Users. Greenshades shall have no liability to any
person for any damages or other losses suffered by Licensee (or any employee or
agent of Licensee) related to any use of Licensee's user name and password
resulting from Licensee's failure to safeguard said information.
(b) Malicious Software.
Licensee shall keep its computer system free of viruses and other
malicious software. Greenshades shall
have no liability to any person for any damages or other losses suffered by
Licensee (or any employee or agent of Licensee) related to any malicious
software operating on Licensee's computer system (e.g., keylogging programs).
(c) Phishing Scams and Spoof Websites. Licensee shall train its employees regarding
information security and shall not divulge account information via email to any
person. Greenshades shall have no
liability to any person for any damages or other losses suffered by Licensee
(or any employee or agent of Licensee) related to any response by Licensee (or
any employee or agent of Licensee) to any phishing scam or spoof website.
5.2 Greenshades Safeguards.
(a) Data Retention.
Certain Software products (e.g., W-2 reporting products) require
Greenshades to receive, retain, and process Protected Information. Unless Licensee and
Greenshades have entered into a separate agreement for the archiving and
storage of this Protected Information (an "Archive Service"), Greenshades will retain this Protected
Information only during the Term.
In the absence of an agreement for Archive Service, at the end of the
Term, Greenshades shall purge its servers and other records of any and all
Protected Information. The Software is
not meant to satisfy any Legal Requirement related to document retention and it
is the sole responsibility of Licensee to retain copies of any documentation
that has a Legal Requirement that sets forth a retention period, either through
the retention of hard copies or electronic copies stored on Licensee's local
computer system.
(b) Employee Screening.
Greenshades shall conduct employment reference checks and background
investigations on all of its employees.
The data analyzed in these background checks shall include the
following:
(i) private
and government agency reports related to any history of criminal, dishonest, or
violent behavior, and other reports that relate to suitability for employment;
(ii) education
(including degrees awarded);
(iii) employment
history and abilities;
(iv) address
history;
(v) social
security number scans;
(vi) civil
court filings;
(vii) motor
vehicle and driving records; and
(viii) professional
or personal references when required.
This information will be sought
at the commencement of employment and at other times during employment, such as
during reassignment or promotional periods, and following security infractions
or other incidents.
Additionally, all Greenshades
employees with access to Protected Information will undergo an additional
extensive background check, which includes a credit check
(c) Employee Access. Only those employees of Greenshades that have
passed the screening referenced in Section 5.2(b), and whose job
requires access to particular Protected Information will be given access to
that Protected Information.
(d) Physical
Security. Greenshades shall maintain
the servers that store Protected Information in a secured and alarmed facility
housed separately from the main work site.
Greenshades employees shall access the servers remotely and the only
persons with physical access to the servers will be those employees with a
legitimate business need to have such access.
Each workstation at the main work site shall be assigned to a specific
employee, password protected using commercially reasonable standards, and virus
protected. Greenshades employees shall
not be permitted to attach personal peripherals onto their workstations. Access to the main work site of Greenshades
shall be monitored and limited by keycard access. Afterhours access
shall be monitored and restricted to those employees with a legitimate business
need.
(e) Identity Theft
Prevention Program. Greenshades
shall adopt and implement an identity theft prevention program designed to
comply with the Red Flags Rule of the Federal Trade Commission.
5.3 Treatment of
Confidential Information.
(a) Nondisclosure. The Receiving Party shall not disclose the
Confidential Information of the Disclosing Party
(b) Court Orders. If the Receiving Party is ordered by a court,
administrative agency, or other governmental body of competent jurisdiction to
disclose said Confidential Information, or if the Receiving Party is served
with or otherwise becomes aware of a motion or similar request that such an
order be issued, then the Receiving Party will not be liable to the Disclosing
Party for disclosure of Confidential Information required by such order if the
Receiving Party complies with the following requirements:
(i) if an already-issued order calls for immediate
disclosure, then the Receiving Party shall immediately move for or otherwise
request a stay of such order to permit the Disclosing Party to respond as set
forth in this subsection;
(ii) the
Receiving Party shall notify the Disclosing Party of the motion or order by the
most expeditious means possible; and
(iii) the Receiving Party
shall join or agree to (or at a minimum shall not oppose) a motion or similar
request by the Disclosing Party for an order protecting the confidentiality of
the Confidential Information, including joining or agreeing to (or
nonopposition to) a motion for leave to intervene by the Disclosing Party.
6. THIRD PARTY VENDORS
6.1 Third Party Vendors.
Certain Software products may give Licensee the option to outsource the
printing and mailing of certain of Licensee's tax forms (e.g., Form W-2s). If Licensee selects this option, Licensee
shall submit all necessary information via the Software to the third party
vendors contracted by Greenshades to provide this service (each a "Third Party Vendor"). As discussed in Section 9.4,
Greenshades makes no representations or warranties with respect to the
information security policies and practices of its Third Party Vendors. Upon request, Greenshades will provide
Licensee with the contact information for each Third Party Vendor for
Licensee's independent review of the adequacy of each Third Party Vendor's
information security policies and practices.
Should Licensee object to any Third Party Vendor, Greenshades will work
with Licensee to arrange a commercially reasonable alternative.
7. UPDATES, BUGS, AND TELEPHONE
SUPPORT
7.1 Updates.
Greenshades shall, from time-to-time update the Software to improve
functionality or add features. During
the Term, Licensee must use the Software as updated or modified. Greenshades, at its sole discretion, will
determine type, frequency, and notification parameters for updates or upgrades
of the Software and any software documentation.
The terms of this License will govern any Software updates provided by
Greenshades that replace and/or supplement the original Software product.
7.2 Bugs. Licensee agrees to provide Greenshades with
reasonable notice (“Bug Report”) of
any actual or potential defect (“Bug”)
in the Software. Greenshades shall
evaluate any such Bug and take commercially reasonable steps to resolve the
Bug. If the Bug is a Material Bug, then
Greenshades shall resolve the Bug within forty-eight (48) hours. At its option, in lieu of resolving a
Material Bug, Greenshades may revert to an earlier version of the Software that
does not contain the Material Bug.
7.3 Telephone Support.
During the Term, Greenshades will make support available by telephone
(toll-free in the United States) to Licensee's Authorized Users at
substantially all times from 9:00 a.m. until 6:00 p.m. EST each Business
Day. During peak seasons, Greenshades
may, by notice to Licensee, extend these telephone support hours.
8. INTELLECTUAL PROPERTY MATTERS
8.1 Intellectual Property Rights. The
content, organization, graphics, design, compilation, magnetic translation,
digital conversion, routines, subroutines, formulae, and other matters related
to the Software are protected under applicable copyrights, patents, trademarks,
and other proprietary and/or intellectual property rights. The copying, redistribution, use, or
publication by Licensee of any such matters or any part of the Software, except
as otherwise expressly authorized, is strictly prohibited. Greenshades
expressly reserves all intellectual property rights in all text, programs,
products, processes, technology, content, and other materials relating to the
Software. Any and all logos, emblems, company names, product names, and service
names (“Trademarks”) referenced in
or by the Software or accessible within any application of the Software are
Trademarks of their respective owners. In particular, the name
"Greenshades" and Greenshades's logo are trademarks of Greenshades. Licensee shall not acquire permission to use
any Trademark owned by Greenshades or any third party Trademark referenced on,
in, or by the Software without express permission from Greenshades or the
applicable owner of the Trademark.
8.2 Prohibitions.
Licensee shall not: (a) delete the copyright notices or any other
proprietary legends on or in the Software; (b) decompile, modify, reverse
engineer, disassemble or otherwise reproduce the Software, or create derivative
works based on the Software; (c) copy, rent, lend, lease, sublicense,
distribute, assign, or commercially exploit the Software; (d) use the Software
in any manner that could damage, disable, overburden, or impair Greenshades's
or any other party's search services, servers, or other services; (e) use, download
or otherwise transmit the Software to a location other than as authorized in
this Agreement; (f) permit the use of the Software or Software Documentation by
unauthorized persons; or (g) export the Software or Software Documentation into
any country that does not have copyright laws that will protect the copyright
of Greenshades. Greenshades reserves all
rights not expressly granted in this Agreement. Each of the terms and
conditions of this Agreement is material to the Agreement and failure of
Licensee to comply with any of these terms and conditions will result in
automatic termination of the License.
9. WARRANTIES, LIMITATION OF LIABILITY, AND DISCLAIMERS
9.1 As-Documented Warranty.
(a) Operation.
SUBJECT TO THE REMEDY LIMITATIONS SET FORTH BELOW, Greenshades warrants
to Licensee that during the Term, the Software will operate in all material
respects in accordance with the Software Documentation (the "As-Documented Warranty").
(b) Deadline for Reports of Breaches of As-Documented Warranty. No instance of noncompliance with the
As-Documented Warranty will be deemed to be a Breach of that warranty unless
the procedure set forth in Section 7.2 is followed.
(c) Exclusive Remedies for Breach of As-Documented Warranty. Licensee's sole remedy for any Breach of the
As-Documented Warranty, to the exclusion of all other remedies therefor, in
contract, tort, or otherwise, is a refund of a pro
rata portion of any Fees for any remaining portion of the Initial Term or
Renewal Term, as the case may be.
9.2 No Surreptitious Code Warranty. Greenshades warrants to Licensee that the
Software does not contain any Unauthorized Code (the “No Surreptitious Code Warranty”).
9.3 Non-infringement.
Greenshades warrants that the use of the Software by Licensee pursuant
to this Agreement will not infringe any valid and subsisting intellectual
property right owned by any person.
9.4 Warranty Limitations.
(a) Limitations of Greenshades's
Warranties. Greenshades does not
warrant:
(i) that
the operation of the Software will be error free in all circumstances;
(ii) that
all defects in the Software that are not material with respect to the
functionality thereof as set forth in the Software Documentation will be
corrected;
(iii) that the operation of
the Software will not be interrupted for short periods of time by reason of
defect therein or by reason of fault on the part of Greenshades; or
(iv) anything
with respect to any information, content, goods, or services provided by any
third party and accessed via link from any Greenshades website.
(b) No Warranty by Greenshades. Licensee will be exclusively responsible as
between the Parties for, and Greenshades makes no representation or warranty
with respect to:
(i) determining
whether the Software will achieve the results desired by Licensee;
(ii) selecting,
procuring, installing, operating, and maintaining computer hardware to run the
Software;
(iii) training
Licensee's Authorized Users in computer operations, other than such Greenshades
provided training as is expressly set forth in this Agreement;
(iv) ensuring
the accuracy of any input data used with the Software;
(v) establishing
adequate data backup provisions for backing up Licensee's data;
(vi) establishing
adequate operational backup provisions (e.g., alternate manual operation plans)
in the event of a defect or malfunction that impedes the anticipated operation
of the Software;
(vii) ensuring
the adequacy of any third party's information security policies and practices;
and
(viii) ensuring
the accuracy and adequacy of any information, content, goods, or services
provided by any third party, regardless of whether that information, contact,
goods, or services are accessed via a link from any Greenshades website.
9.5 DISCLAIMER OF ALL
OTHER WARRANTIES AND REPRESENTATIONS. THE EXPRESS WARRANTIES AND
EXPRESS REPRESENTATIONS SET FORTH IN THIS AGREEMENT ARE IN LIEU OF, AND
GREENSHADES DISCLAIMS, ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR
REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO THE
LICENSED SOFTWARE OR ANY PART THEREOF, INCLUDING ANY AND ALL IMPLIED WARRANTIES
OR CONDITIONS OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS OR
SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT GREENSHADES KNOWS, HAS REASON TO
KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE),
WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR
BY COURSE OF DEALING. IN ADDITION,
GREENSHADES EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY PERSON
OTHER THAN LICENSEE WITH RESPECT TO THE LICENSED SOFTWARE OR ANY PART THEREOF.
IN NO EVENT SHALL GREENSHADES BE
LIABLE TO LICENSEE OR TO ANY OTHER PARTY FOR THE USE OF A NON-PROPRIETARY
PLUG-IN THAT MAY BE ADDED TO THE SOFTWARE.
10. LIMITED POWER OF ATTORNEY
10.1 Reporting Agent Authorization. Licensee hereby authorizes and appoints
Greenshades as its agent to file and report all applicable taxes and forms as
submitted by Licensee to Greenshades.
This authorization includes the authority to sign and file returns, make
deposits and payments, and receive otherwise confidential tax information from
Governmental Authorities.
11. INSURANCE
11.1 Insurance Coverage.
Greenshades shall maintain the following insurance policies: (a) employer’s liability insurance with limits
of at least $1,000,000 for each occurrence; (b) Commercial General Liability
Insurance, ISO 1988 or later occurrence form of insurance including Blanket
Commercial Liability and Broad Form Property Damage, with limits of at least
$1,000,000 combined single limit for bodily injury and property damage per
occurrence and $1,000,000 per occurrence for personal injury and
products/completed operations; and (c) Professional Liability (errors &
omissions) coverage with a minimum limit of $1,000,000 per occurrence.
12. TERMINATION AND BREACH
12.1 Termination.
(a) End of
Term. The License shall terminate at
the end of the Term if either party gives the other party notice of cancelation
at least thirty (30) days prior to the end of the Term.
(b) Early Termination by Greenshades. Unless otherwise provided in an applicable
Purchase Order, Greenshades may terminate the License at any time upon thirty
(30) days prior notice to Licensee. In
the event Greenshades terminates the License pursuant to this Section
12.1(b), Greenshades shall refund to Licensee a pro rata portion of any
Fees for any remaining portion of the Initial Term or Renewal term, as the case
may be.
(d) Termination Upon Breach and
Failure to Cure. The Nonbreaching
Party may terminate the License immediately upon the occurrence of an uncured
Breach after providing the Breaching Party with the notice and opportunity to
cure required by Section 12.2.
12.2 Breach.
(a) Notice Required.
The Party not in breach (“Nonbreaching
Party”) shall give the Party in breach (the “Breaching Party”) notice describing the Breach and stating the time
provided below, if any, within which the Breach must be cured. If a provision of this Agreement provides a
cure period for the Breach in question (e.g., a period within which Greenshades
can attempt to remedy a Material Bug), then that provision shall take
precedence over any cure period set forth in this Section 12.2.
(i) No Cure Period. No cure period is required, except as may be
otherwise provided in this Agreement, if:
(A) this
Agreement sets forth specific deadline dates for the obligation allegedly
breached, and
(B) the
Breach is a willful breach of an obligation of the Breaching Party.
(ii) Nonwillful Breach. If the Breach is nonwillful, then the
Breaching Party shall have five (5) Business Days to cure the Breach after
written notice of such Breach by the Nonbreaching Party.
(b) Cure. The
Breaching Party will be deemed to have cured such Breach if within the cure
period the Breaching Party takes steps reasonably adequate to alleviate any
damage to the Nonbreaching Party resulting from the Breach and to prevent a
similar future Breach.
13. DISPUTE RESOLUTION
13.1 Arbitration. With
the exception of any action for equitable relief, any controversy or claim
arising out of or relating to this Agreement is to be settled by arbitration
administered by the American Arbitration Association in accordance with its
rules for commercial arbitration. Any
arbitration conducted pursuant to this Agreement shall be before a single
arbitrator in Jacksonville, Florida.
Unless granted an award of attorney fees and costs pursuant to Section
13.8, each Party shall bear its own expenses in connection with any such
arbitration proceeding.
13.2 Injunctive
Relief. If Licensee uses the
Software in any unauthorized manner, or breaches any terms or conditions of
this Agreement, and such use or breach would have a devastating and serious
impact on Greenshades's continuing ability to compete profitably and would, therefore,
result in immediate and irreparable injury, loss or damage to Greenshades, then
in addition to Greenshades's right to recover damages for a breach of this
Agreement, Greenshades shall also be entitled to obtain a temporary restraining
order or a preliminary injunction from a court of competent jurisdiction,
without the necessity of posting a bond, to prevent Licensee and Licensee's
employees, agents, consultants, and independent contractors from engaging in
any further use of the Software and the continued breach of this Agreement.
13.3 EXCLUSION
OF INCIDENTAL AND CONSEQUENTIAL DAMAGES.
Independent
of, severable from, and to be enforced independently of any other enforceable
or unenforceable provision of this Agreement, OTHER THAN FOR INFRINGEMENT OF
ONE PARTY'S INTELLECTUAL PROPERTY RIGHTS BY ANOTHER PARTY, NEITHER PARTY WILL
BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM
THE OTHER PARTY'S RIGHTS) FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR
EXEMPLARY DAMAGES OF ANY KIND including
lost profits, loss of business, or other economic damage, and further including
injury to property, AS A RESULT OF BREACH OF ANY WARRANTY OR OTHER TERM OF THIS
AGREEMENT, REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED,
HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
13.4 MAXIMUM
AGGREGATE LIABILITY. Independent of, severable from,
and to be enforced independently of any other enforceable or unenforceable
provision of this Agreement, IN NO EVENT SHALL Greenshades's AGGREGATE
LIABILITY TO LICENSEE (INCLUDING LIABILITY TO ANY PERSON OR PERSONS WHOSE CLAIM
OR CLAIMS ARE BASED ON OR DERIVED FROM A RIGHT OR RIGHTS CLAIMED BY LICENSEE),
WITH RESPECT TO ANY AND ALL CLAIMS AT ANY AND ALL TIMES ARISING FROM OR RELATED
TO THE SUBJECT MATTER OF THIS AGREEMENT, IN CONTRACT, TORT, OR OTHERWISE,
EXCEED THE AMOUNT OF THE FEE AND ANY RENEWAL FEE as provided herEIN.
13.5 WAIVER
OF JURY TRIAL. EACH PARTY, TO
THE EXTENT PERMITTED BY LAW, KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES
ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR OTHER LEGAL PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT AND TO THE TRANSACTIONS, IT
CONTEMPLATES. THIS WAIVER APPLIES TO ANY
ACTION OR LEGAL PROCEEDING, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE. EACH PARTY ACKNOWLEDGES THAT
IT HAS RECEIVED THE ADVICE OF COMPETENT COUNSEL.
13.6 Choice of Law. The
laws of the state of Florida,
without giving effect to its conflict of laws principles, govern all matters
arising out of or related to this Agreement and all transactions it
contemplates including, without limitation, its validity, interpretation,
construction, performance, and enforcement.
13.7 Forum Selection.
Any Party bringing an action for injunctive relief shall bring the legal
action or proceeding in either the United States
District Court for the Middle District of Florida, Jacksonville Division, or in
any court of the state of Florida sitting in Duval County, Florida. Each party consents to the exclusive jurisdiction
of the United States District Court for the Middle District of Florida,
Jacksonville Division, and the courts of the state of Florida sitting in Duval
County, Florida, and their respective appellate courts. Each party agrees that the exclusive choice
of forum set forth in this Section 13.7 does not prohibit the
enforcement of any judgment obtained in that forum or any other appropriate
forum.
13.8 Attorneys' Fees.
In the event that any dispute between the Parties should result in
litigation or arbitration, the prevailing party to such dispute shall be
entitled to recover from the other party all reasonable fees, costs, and
expenses of enforcing any right of the prevailing party. Attorney’s fees and costs include costs for
such items for any appeals.
14. MISCELLANEOUS
14.1 Notice. Any notice
required or permitted to be given under this Agreement shall be sufficient if
sent via email to Licensee at the email address used during the registration
process referenced in Section 4.5 or to Greenshades at
support@greenshades.com. The Parties may
designate any other or additional email addresses from time to time in a
writing delivered in accordance with this Section 14.1.
14.2 Assignment and Delegation. Licensee shall not assign the rights or
obligations of this Agreement without the prior written consent of
Greenshades. Greenshades may freely
assign its rights and obligations under this Agreement without Licensee's prior
written consent.
14.3 Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the
Parties’ permitted successors and assigns.
14.4 Third Party Beneficiaries. This Agreement does not and is not intended
to confer any rights or remedies upon any individual, group, or entity other
than the Parties.
14.5 Amendment. This
Agreement is subject to amendment by Greenshades from time-to-time and
agreement to any such amendment shall be a condition precedent to the continued
use of the Software by Licensee. Should
Licensee refuse to agree to any such amendment, at Greenshades's option this
Agreement will be deemed terminated by Greenshades as contemplated by Section
12.1(b).
14.6 Severability. If
any word, phrase, sentence, clause, section, subsection or provision of this
Agreement as applied to either Party or to any circumstance is adjudged by a
court to be invalid or unenforceable, the same shall in no way affect any other
circumstance or the validity or enforceability of any other word, phrase,
sentence, clause, action, section, subsection, or provision of this Agreement
to the extent possible without destroying the intent of this Agreement.
14.7 Waiver. The waiver
of either Party of a breach or violation of any term or provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach or violation.
14.8 Strict Construction.
The language used in this Agreement shall be deemed to be in the
language chosen by both Parties to express their mutual intent, and no rule of
strict construction shall be applied for or against any Party by reason of such
Party being deemed the draftsman of this Agreement.
14.9 Interpretation.
The terms that are defined in this Agreement may be used in the singular
or plural, as the context requires.
Whenever the context of this Agreement requires, the gender of all words
shall include the masculine, feminine, and neuter. The words "including,"
"includes," and "include" are deemed to be followed by the
words "without limitation."
References to "Sections" are to Sections of this Agreement, unless
otherwise specifically provided.
14.10 Captions. Captions
in this Agreement are asserted for convenience only and do not define,
describe, or limit the scope or the intent of this Agreement or any of the
terms of this Agreement.
14.11 Entire Agreement.
Together with any Purchase Order, this Agreement contains the entire
agreement between the Parties and supersedes all prior or contemporaneous
agreements, understandings, representations, and statements, oral or written,
between the Parties with respect to the subject matter of this Agreement.