Last Modified: April 27, 2018
This APPLICATION LICENSE AGREEMENT (the “Agreement”) shall set forth the terms and conditions pursuant to which Aftercode Corp. (“AC”) shall license certain AC mobile, desktop and web applications (each an “Application”). Each legal entity and/or person that has agreed to license the Application shall be referred to as the “User”.
BY DOWNLOADING OR USING AN APPLICATION, USER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. USER SHOULD NOT USE THE APPLICATION IF THEY DON’T AGREE WITH THIS AGREEMENT. USE OF THE MOBILE VERSION OF THE APPLICATION IS ALSO SUBJECT TO THE TERMS AND CONDITIONS OF THE MOBILE APPLICATION’S DISTRIBUTOR (E.G. APPLE OR GOOGLE) OR THE TERMS AND CONDITIONS REQUIRED BY THE MOBILE NETWORK OPERATOR.
1. Term; Termination; Survival of Provisions
1.1. The Application to be licensed to the User shall be described in the AC order form that User has agreed to by clicking on the “I Accept” button on the AC website or mobile application or on a written order form provided by AC and signed by User (the “Order”). The Order shall also include the applicable license term for the Application (the “Term”), the price or license fee for the Application and any other terms specific to the Application. This Agreement may be terminated for cause by either party immediately and without further notice if the other party defaults in the performance of any of its material obligations under this Agreement or the Order and does not cure the default within ten (10) days after receipt of notice in writing from the non-defaulting party. Upon any such termination, User will no longer have any right to access or use of the Application. The following sections of this Agreement shall continue in full force and effect upon termination of this Agreement or the Order or expiration of the Term: 5, 6 and 8.7.
1.2. AC shall have no obligation to refund any portion of an Application Fee for any termination of the license.
2.1. Subject to the provisions of this Agreement, AC grants to the User a non-exclusive, non-transferable, revocable, limited license to download (if applicable), access and use the Application during the Term. Any such use of the Application shall be solely in a manner consistent with the terms of this Agreement. Use of the Application may be limited to the specific number of User users set forth in the Order. Except for the license granted in this Section 2.1, the User acknowledges that it acquires no other rights to the Application and that all right, title and interest in and to the Application shall remain with AC and its licensors. The User shall not decompile, copy, disassemble, modify, decrypt, translate, extract or otherwise reverse engineer the Application.
2.2. User shall not (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Application; (b) modify or make derivative works based upon the Application; (c) create Internet “links” to the Application or “frame” or “mirror” the Application on any other server or wireless or Internet-based device; (d) interfere with or disrupt the integrity or performance of the Application or the data contained therein; or (e) attempt to gain unauthorized access to the Application or its related systems or networks. 2.3. In order to use the Application, User must acquire and maintain, all at its own cost and expense, that computer or mobile hardware, software and related services further described in the Order (collectively the “Required Materials”). User shall be solely responsible for the operation, use, support, maintenance and/or any warranty issues related to the Required Materials.
3. Use of Application and Support
3.1. AC shall provide User with a user ID and password to access and use the Application. User is solely responsible for the security and use of each user ID and password. User agrees that each user who obtains a user ID and password to use the Application pursuant to this Agreement shall: (a) keep their user ID and password secure and confidential; and (b) not share or transfer User ID and password with any other person or entity. If the security of the user ID and/or password is compromised, User shall promptly contact AC by email at email@example.com.
3.2. AC does not own any data, information or material that User submits to AC in the course of using the Application or that is collected as part of the Application (the “User Data”). User, not AC, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all User Data, and AC shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any User Data. The User grants AC the royalty-free, world-wide, perpetual, non-exclusive, transferable license to use, reproduce, modify, edit, publish, distribute and display such User Data through the Application. Upon termination for User breach, AC shall have no obligation to maintain or forward any User Data. User represents and warrants to AC that User Data: (a) is original to User or that User has secured the rights to provide and use such User Data; (b) does not contain any content that is unlawful or invasive of another’s privacy or publicity rights; or (c) does not contain a virus or other harmful component.
3.3. Except as set forth in this Agreement, AC shall not (a) disclose, provide or make available the User Data to a third party without User’s prior written approval; or (b) make any other use of the User Data. User acknowledges that AC may compile certain general information related to the use of the Application. Notwithstanding the restrictions set forth in this Section 3, User agrees that AC is authorized to use, reproduce and generally make User Data available to third parties in the aggregate, provided that such User Data shall not include personally identifiable information or identify User as the source of such aggregated data.
3.4. AC shall provide email based support concerning use of the Application Monday through Friday (excluding Federal holidays) from 9:00 AM to 5:00 PM (Central Standard Time).
4. Payment and Billing. The Application shall be provided at the fee set forth in the Order (the “Application Fee”). In addition to the Application Fee, AC shall invoice Users for all applicable sales and use taxes. AC shall invoice User for the Application Fee as set forth in the Order. User shall pay the Application Fee as set forth in the Order. User shall pay the License Fee by ACH, check or by credit card, debit card or PayPal by submitting the required payment information on the Order (the “Payment Information”). User hereby grants AC the right to use the Payment Information submitted by User (e.g. card/account number, expiration date and security code) to accept payment of the Application Fee until the Application license is terminated. At no point does the credit card/account number reside or flow through AC servers; the information solely resides at AC’s PCI compliant payment provider. In addition to any other rights granted to AC herein, AC reserves the right to suspend or terminate this Agreement and the User access to or use of the Application if User fails to pay the Application Fee or AC is unable to use the Payment Information to accept payment of the Application Fee.
5. Limitation of Liability. EXCEPT FOR THE OBLIGATIONS SET FORTH IN SECTION 6 (INDEMNIFICATION), IN NO EVENT SHALL (A) AC BE LIABLE TO THE USER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO THE LOSS OF PROFITS, INCOME, GOODWILL OR DATA, OR THE INABILITY TO UTILIZE THE APPLICATION; OR (B) AC’S AGGREGATE LIABILITY TO THE USER EXCEED THE APPLICATION FEES ACTUALLY PAID BY USER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
6.1 AC shall indemnify and hold the User and its parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (a) a third party claim brought against User alleging that the Application infringes a copyright, a U.S. patent issued, or a trademark of a third party; or (b) a claim, which if true, would constitute a violation by AC of its representations or warranties set forth in Section 7.1 below, provided that the User (i) promptly give written notice of the claim to AC; (ii) gives AC sole control of the defense and settlement of the claim (provided that AC may not settle or defend any claim unless it unconditionally releases the User of all liability); (iii) provide to AC all available information and assistance; and (iv) have not compromised or settled such claims.
6.2 User shall indemnify and hold AC and its parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (a) a claim, which if true, would constitute a violation by the User of the representations and warranties set forth in Section 7.3 below; (b) User’s breach of Sections 2 or 3.2 above or (c) User’s use of the Application; provided that AC (i) gives the User prompt written notice of the claim; (ii) gives the User control of the defense and settlement of the claim (provided that the User may not settle or defend any claim unless the User unconditionally releases AC of all liability and such settlement does not affect AC); and (iii) provides the User all available information and assistance; and (iii) has not compromised or settled such claim.
7. Representations and Warranties
7.1. AC represents and warrants that: (a) it has the power and authority to enter into this Agreement and to perform all of its obligations; (b) the performance of such obligations will not conflict with or result in a breach of any agreement to which AC is a party or is otherwise bound; and (c) it is the owner or authorized licensee of the Application.
7.2. AC warrants to the User that the Application shall operate in substantial accordance with the functional descriptions of the Application found in Order. If the Application fail to so conform to that description of the Application, then AC shall, as the User’s sole remedy, make a commercially reasonable effort to correct the Application. All warranty claims related to the Application must be made within the then current Term for such Application.
7.3. The User represents and warrants that: (a) it has the power and authority to enter into this Agreement and to perform all of its obligations under this Agreement; (b) the performance of such obligations will not conflict with or result in a breach of any agreement to which the User is a party or is otherwise bound; and (c) its performance under this Agreement, its use of the Application and the User Data, shall all comply with all applicable state and federal laws, rules, regulations and policies, including without limitation those related to eavesdropping, wiretapping, or other unauthorized recording or disclosure of conversations or communications and those related to the storage of user data. User understands and agrees that (1) AC does not intend for the Application to be used to—and User shall not use the Application to—create audio recordings of or to otherwise intercept private conversations or communications or conversations or communications to which User is not a party, and (2) the disclosure or dissemination of the content of any conversation or communication to which the Application is applied is strictly prohibited. Any act by User that is inconsistent with the foregoing shall constitute a material breach of User’s representations and warranties herein.
7.4. OTHER THAN AS SET FORTH IN THIS SECTION 7, AC SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. AC DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE; (B) THE APPLICATION WILL MEET ALL OF THE USER’S REQUIREMENTS; OR (C) ALL ERRORS OR DEFECTS WILL BE CORRECTED.
8. Other Provisions
8.1. In the event that AC is unable to provide the Application because of any cause reasonably beyond its control, including, without limitation, acts of God (each a “Force Majeure event”), AC shall promptly give notice to the User and shall take all measures to resume performance. If the period of non- performance exceeds thirty (30) days from the receipt of notice, the User may give written notice to AC terminating this Agreement effective upon receipt.
8.2. User may not assign this Agreement to any person or entity without the prior written permission of AC.
8.3. This Agreement, along with each Order executed by User and AC, each of which is hereby incorporated by reference, constitutes the entire understanding of the parties and supersedes all prior discussions and agreements with respect to its subject matter. This Agreement may be amended only by written instrument signed by both parties. 8.4. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The failure of AC to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by AC in writing.
8.5. Either party may give notice by personal delivery or by nationally recognized expedited carrier (e.g. FedEx or DHL). Personal delivery shall be effective upon delivery; delivery by expedited carrier shall be deemed delivered forty-eight (48) hours after the notice is sent by such expedited carrier.
8.6. Notwithstanding the provisions of this Section 3 above, AC shall have the right during the Term to: (a) list and name User as a user of the Application (including the limited right to use User’s corporate logo, subject to User’s written guidelines on such use); and (b) issue a press release regarding this agreement subject to User’s prior written approval, which shall not be unreasonably withheld.
8.7. The Agreement shall be controlled by and interpreted under the laws of the state of Minnesota, excluding that state’s conflict of laws’ provisions. The exclusive jurisdiction for any dispute regarding this Agreement shall be the state or federal courts in Hennepin County, Minnesota. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.