END USER LICENSE AGREEMENT
This End User License Agreement (“Agreement”) is entered into by and between you (“you” “your” or “Customer”) and Bolt On Technology, LLC (“Company”, “we” “our” or “us”) as of the date that you accept or agree to this Agreement (the “Effective Date”). The terms and conditions set forth in this Agreement, together with any documents they expressly incorporate by reference, govern your access to and use of the Software, including any specific functionalities you selected on our account creation and/or purchase page, or on a separate purchase order executed by the parties (each referred to herein as the “Order Form”).
a. Fees. Unless otherwise stated in an Order Form, Customer shall pay all fees set forth in each Order Form (the “Fees”) within thirty (30) days of Customer’s receipt of an invoice. The Fees are subject to change upon thirty (30) days prior notice to Customer, except that unless otherwise set forth in an Order Form, no individual Fee may be increased by more than five percent (5%) per annum. In addition to the Fees, Company shall bill Customer for the actual cost of any out-of-pocket expenses (such as telephones, meals, travel, etc.) with respect to any expenses incurred in connection with the provision of the Software.
b. Automatic Payments. To the extent Customer elects to pay any Fees electronically, Customer authorizes Company, or Company’s payment processor, to charge Customer’s debit or credit card or process other means of payment for those Fees. To the extent such payment method fails, Company reserves the right to suspend Customer’s access to the Software.
c. Taxes. All invoiced amounts are exclusive of any and all value added, use, sales, service, property or other taxes or contributions. Customer shall be responsible for payment of any such value added, use, sales, service, property or other taxes or contributions that are, or should ultimately be, assessed against or required to be collected by Company in connection with Company’s performance hereunder.
d. Disputes; Suspension of Software. In the event that Customer disputes, in good faith, any charges on an invoice, Customer shall notify Company of such dispute, including a detailed written explanation, prior to the date that the invoiced amount is due. The parties shall use good faith efforts to resolve the dispute within ten (10) days after Customer notifies Company; provided, however, that Customer shall continue to timely pay Company any portion of the invoice not subject to a good faith dispute. In the event that Company does not receive payment of any Fees when due, interest shall accrue at the rate of one and half percent (1.5%) per month (or the maximum rate allowed by law) and Company reserves the right, in addition to any other rights and in its sole discretion, to terminate access to the Software by Customer and/or stop any and all related services being performed. In addition, Customer shall reimburse Company for the costs of collection including, without limitation, attorneys’ fees and expenses.
a. Ownership. All right, title and interest in and to the Company Materials and any and all Intellectual Property Rights therein shall belong exclusively to Company, and all rights granted to Customer under this Agreement are expressly limited to the license granted herein. In the event Customer obtains any right, title or interest in or to any Company Materials and/or Intellectual Property Rights therein, Customer hereby transfers, conveys and assigns to Company all such right, title and interest. “Company Materials” mean all Software, technology, hardware, data and information (other than Customer Information) and any and all other components and materials, including any modifications and enhancements to any of the foregoing, provided by or on behalf of Company to or for the benefit of Customer hereunder. “Intellectual Property Rights” means, without limitation, any and all patents, trademarks, trade secrets, copyrights, and all other similar items of intellectual property, whether registered or unregistered, any and all applications thereto, including any common law or other rights created by use thereof, all proceeds thereof (such as by the way of example any licenses, royalties and proceeds of current infringements), and the right to sue for past, present and future infringements.
b. License. Subject to the terms and conditions of this Agreement and subject to receipt of all applicable Fees and other amounts due hereunder, Company hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable license during the Term of the relevant Order Form to access and use, solely by Customer’s Authorized Users, the Software, solely for Customer’s internal business use. “Authorized Users” means the personnel, authorized representatives and/or end customers for whom Customer has purchased a license to use the Software, provided that such Authorized User is legally bound to comply with the terms and conditions of this Agreement.
c. Limitations. Customer may only use the Company Materials in its own business and pursuant to the terms and conditions of this Agreement and related Order Forms and shall ensure that its Authorized Users comply with the terms herein. Customer agrees that it shall not, in whole or in part, at any time during or after the Term: (i) sell, assign, sub-license, lease, rent, timeshare, grant a security interest in, distribute, transfer, communicate or disclose any of the Company Materials to any third party; (ii) modify or attempt to modify any of the Company Materials or decompile, reverse engineer, create or recreate any related source code; (iii) use any of the Company Materials to provide services to, or to otherwise benefit, any third party, other than the Authorized Users (which may include Company’s customers); (iv) use any of the Company Materials to create a program having similar features or functions of the Company Materials; (v) remove or modify any copyright or other proprietary notice contained in any of the Company Materials; (vi) use, possess, or transfer any of the Company Materials in and/or to any foreign jurisdiction in violation of any trade laws or regulations; or (vii) allow others to do any of the foregoing. Customer’s access to the Software does not entitle it to any professional services from Company unless expressly mutually agreed to in an Order Form.
a. Duly Authorized. Each party represents and warrants that it is duly authorized to enter into this Agreement, it has the authorization to grant the rights herein, its performance of this Agreement will not breach any separate agreement to which it is bound, and that this Agreement, upon execution and delivery, represents a binding obligation of such party, enforceable in accordance with its terms.
b. Customer Obligations. Customer warrants (i) it will provide and maintain all necessary hardware and telecommunications connections necessary for Customer to utilize the Software, including with respect to any API(s) provided by Company; (ii) it will provide Company with the requisite Customer Information and any other information or assistance reasonable requested by Company as may be necessary for Company to perform its obligations hereunder; and (iii) that Customer has obtained all necessary rights, permissions and authorizations to provide the Customer Information to Company, including, but not limited to, with respect to information regarding Authorized Users. “Customer Information” means data of or concerning Customer, its Authorized Users, consumers, customers or clients, and/or its parent, subsidiaries, affiliates and agents provided by Customer to Company in connection with the Software. Customer Information includes all information entered into the Software by Authorized Users.
a. THE SOFTWARE AND ANY RELATED SERVICES ARE PROVIDED “AS IS” AND, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 4, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE OR SERVICES PROVIDED HEREUNDER OR THAT THE SOFTWARE OR SERVICES PROVIDED WILL BE UNINTERRUPTED, TIMELY, OR ERROR-FREE.
b. COMPANY SHALL HAVE NO LIABILITY WHATSOEVER FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST REVENUE OR PROFITS, LOSS OF OPPORTUNITY OR DISRUPTION OF BUSINESS) OF CUSTOMER OR ANY THIRD PARTY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
c. NOTWITHSTANDING ANYTHING TO THE CONTRARY, CUSTOMER’S EXCLUSIVE REMEDY FOR ANY CAUSE OF ACTION AGAINST COMPANY IN CONNECTION WITH THE PERFORMANCE OF THE SOFTWARE AND/OR SERVICES AND REGARDLESS OF THE FORM OF ACTION (INCLUDING BREACH OF CONTRACT, STRICT LIABILITY, TORT INCLUDING NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE ACTION) SHALL BE LIMITED TO PAYMENT FOR ACTUAL DAMAGES UP TO A MAXIMUM AGGREGATE AMOUNT EQUAL TO THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO COMPANY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE CAUSE OF ACTION AROSE.
a. Term. The term of this Agreement shall commence on the Effective Date and shall continue until terminated as set forth below. Unless otherwise set forth in an Order Form, the term of each Order Form shall be for a period of one year(s) following the Effective Date (the “Initial Term”). After the Initial Term, this Agreement shall automatically renew for successive periods of one (1) year (each, a “Renewal Term” and the Initial Term and any Renewal Terms shall be collectively known as the “Term”) unless either party provides written notice of its intent not to renew at least ninety (90) days prior to the end of the then-current Term.
b. Termination. This Agreement and/or any Order Form may only be terminated prior to the expiration of the Initial Term of any active Order Form or then-current Renewal Term as follows:
(i) In the event Customer fails to pay Company any Fees or other payments due hereunder, in addition to any other available rights and remedies, Company shall have the right, in its sole discretion, to terminate this Agreement upon providing written notice of default to Customer and a ten (10) day opportunity to cure such default. All Fees and other payments due hereunder shall continue to be due and immediately payable.
(ii) In the event that either party breaches any term or condition of this Agreement in any material respect, the other party shall have the right to terminate this Agreement if the breaching party fails to cure such breach within thirty (30) days of receipt of written notice from the non-breaching party, which notice shall specify the nature of the default.
(iii) Either party may terminate this Agreement immediately upon written notice in the event: (A) the other party commences or becomes the subject of any bankruptcy, insolvency, or equivalent case or proceeding; (B) the other party makes a general assignment for the benefit of its creditors; (C) a trustee or receiver is appointed for the other party, or for any of its property; or (D) any petition by or on behalf of the other party is filed to take advantage of any debtor’s act or to reorganize under the bankruptcy or similar laws, which petition is not removed within sixty (60) days after filing.
(iv) Company may, in its sole discretion, terminate this Agreement immediately upon written notice in the event of any unauthorized or unlawful usage by Customer or any third party gaining access to the Software, directly or indirectly, through or as a result of Customer’s use of the Software.
c. Effect of Termination.
(i) Upon termination of this Agreement or any Order Form, Customer may no longer access the relevant Company Materials and any rights or licenses granted to Customer under this Agreement or the terminated Order Form, as applicable, shall immediately terminate. To the extent Customer has installed copies of any Software or other Company Materials on its own systems or services, Customer shall promptly (and in any event within five (5) business days) delete all copies of such Software and/or Company Materials under Customer’s possession or control and certify such deletion in writing to Company.
(ii) The terms of Sections 3, 4, 5, 6(c), 7, 8, 9 and 10 shall survive the termination or expiration of this Agreement.
(iii) Customer will remain liable after termination or expiration (1) for all applicable Fees and other charges accrued hereunder prior to such termination, and (2) if terminated earlier than the expiration date and unless otherwise agreed to in an Order Form, for termination fees equal to the total remaining fees under all Order Forms that would have been payable by Customer for the remainder of the then current Term but for the early termination.
a. “Confidential Information” means any and all business, financial or technical information or data in any form or medium, tangible or intangible, used in or relating to the business activities or operations of the disclosing party which is disclosed, either orally or in writing, by the disclosing party to the receiving party, whether on, before or after the date of this Agreement, including without limitation Intellectual Property Rights; data, know-how, business rules, reports, summaries, processes, samples, ideas, research and development, security procedures and passwords; computer software and programs; business plans, financial information, customer lists, current price lists; personally-identifiable information, as defined under applicable law; and any other information obtained from the disclosing party which is not known to the public. Confidential Information shall include the existence of this Agreement and its Order Forms and any and all of the terms of the foregoing.
b. Each party shall take all reasonable steps to prevent the disclosure of the other party’s Confidential Information in violation of this Agreement, which shall be no less than the steps it takes to protect its own Confidential Information of a similar nature. Each party shall use its reasonable efforts to confine knowledge of the other party’s Confidential Information to its employees and agents who have a reasonable need to know Confidential Information disclosed hereunder (“Representatives”) provided that, prior to any disclosure to a Representative, such Representative has either (i) executed a written agreement to keep such Confidential Information confidential on at least the same terms as described herein, or (ii) is subject to a professional obligation to maintain the confidentiality of such information; and provided further that the receiving party shall remain liable to the disclosing party for any breaches of this Agreement by its Representatives.
c. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that, before disclosing such information, the disclosing party must provide the non-disclosing party with sufficient advanced written notice of the agency’s request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.
d. Confidential Information shall not include information that (i) is or becomes publicly available through no breach or omission of the receiving party; (ii) was lawfully in the possession of the receiving party prior to the disclosure of by the disclosing party; (iii) is lawfully disclosed to the receiving party from a source other than the disclosing party, provided that such source is not bound by any fiduciary, contractual or legal duties of confidentiality; and (iv) is lawfully and independently developed by the receiving party, which can be established by written evidence.
e. In order for Company to provide the Software and any related services, Customer may provide Customer Information. Customer hereby grants Company, during the Term, a limited, non-exclusive, royalty-free right and license to have access to and make use of the Customer Information as necessary to provide Software and/or services. In addition, Customer hereby grants Company, a perpetual, non-exclusive, royalty-free right and license to use Customer Information, on an a de-identified, aggregated or otherwise anonymized basis, for research, analytics and benchmarking purposes and to improve Company’s products and services, including the right to share the results of the foregoing with third parties so long as such results do not identify Customer or any of its Authorized Users, including individual end customers.
f. Customer expressly acknowledges and agrees that any ideas, concepts, know-how, methods, models, data, techniques, business rules, skill, knowledge and experience that were or are used, developed or gained by Company or any of its personnel and all components thereof, including without limitation the Company Materials and any websites, systems, reports or tools made available to Customer in connection with the performance of the Software are owned by Company as provided herein and are the Confidential Information of Company.
g. Upon termination of this Agreement for any reason, or upon or on the disclosing party’s request at any time, the receiving party will promptly deliver to the disclosing party, or, at the disclosing party’s option, destroy, all Confidential Information of the disclosing party and will not retain any copies thereof, other than as permitted under this Agreement. The receiving party shall promptly provide the disclosing party with written certification of such return or destruction. To the extent that any Confidential Information is retained as permitted hereunder, or to the extent that copies of any Confidential Information are stored in electronic archives or backups made in the ordinary course of business in accordance with applicable legal, disaster recovery and professional requirements, all such Confidential Information shall continue to be governed by the provisions of this Section 7.
a. Customer agrees to indemnify, defend and hold harmless Company and its affiliates, subsidiaries, employees, agents, shareholders, officers, directors and attorneys from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) (collectively, “Losses”) arising out of or in connection with: (i) a claim alleging that use of the Customer Information infringes the rights of, or has caused harm to, a third party; (ii) any breach of Customer’s representations or warranties or Customer’s failure to fulfill any of its obligations under this Agreement, including, but not limited, to Customer’s failure to maintain its own hardware; (iii) Customer’s violation of applicable law.
b. Company agrees to indemnify, defend and hold harmless Customer and its affiliates, subsidiaries, employees, agents, shareholders, officers, directors, and attorneys from and against any and all Losses arising out of or in connection with any third party claims alleging that the Software (excluding any Customer Information therein) directly infringes any validly issued U.S. copyright, patent or trademark of a third party. Company shall have no indemnity obligations hereunder, and Customer shall indemnify, defend and hold harmless Company, with respect to any infringement or other third party claim is caused in whole or in part by the combination of any of the Software with any products, services, or other items of Customer or any third party or any modification of the Software by Customer or any third party. Should the Software or any part thereof become, or in Company’s opinion be likely to become, the subject of any claim of infringement, Company shall, at its option, either: (i) obtain for Customer the right to continue using the Software; (ii) replace or modify the affected portion of the Software so that the use thereof becomes non-infringing or otherwise lawful; or (iii) terminate this Agreement and refund to Customer any prepaid but unused Fees as of the date of termination.
c. Each party’s respective indemnification obligations hereunder are conditioned upon the party seeking indemnification: (i) promptly giving written notice of the claim to the indemnifying party; (ii) giving the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not settle or defend any claim unless it unconditionally releases the indemnified party of all liability); and (iii) providing to indemnifying party all available information and reasonable assistance upon request.
a. Assignment. This Agreement shall be binding upon and shall inure to the benefit of Company and Customer and their respective successors and permitted assigns. This Agreement may not be assigned by Customer, in whole or in part, without the prior written consent of Company. Notwithstanding the foregoing, Customer may assign this Agreement in its entirety, upon written notice but without consent of Company, in connection with a (i) merger, acquisition, corporate reorganization resulting in a change of voting control, or (ii) sale of all or substantially all of its assets not involving a direct competitor of Company. Any attempt by Customer to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect.
b. Force Majeure. Neither party shall be liable for any delay (except for obligations to pay all Fees and other payments hereunder) or other failure of performance caused by reasonably unforeseeable factors beyond its control, including without limitation strikes, riots, insurrection, labor shortage, earthquake, hurricane, epidemic, war, acts of terrorism, fire, acts of God, or governmental acts or regulation.
c. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the This Commonwealth of Pennsylvania without regard to its conflict of law provisions. Each party agrees that any dispute shall be brought exclusively in the state or federal courts sitting within the judiciary district of the United States District Court in the Eastern District of Pennsylvania, Philadelphia County, and that it will submit to the jurisdiction of the state or federal courts therein, and to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.
d. Additional Provisions. If any provision of this Agreement (or any portion thereof) shall be held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remainder hereof shall not in any way be affected or impaired thereby. The headings in this Agreement are intended for convenience of reference and shall not affect its interpretation. This Agreement, its Order Forms and any related exhibits or amendments contain the entire agreement of the parties with respect to its subject matter and supersede all existing agreements and all other oral, written or other communications between them concerning its subject matter. Neither party’s failure to enforce strict performance of any provision of this Agreement will constitute a waiver of a right to subsequently enforce such a provision. No written waiver shall constitute, or be construed as, a waiver of any other obligation or condition of this Agreement. This Agreement may be amended by the parties, provided that no amendment, modification or waiver of this Agreement shall be valid unless made in writing and signed by an authorized representative of the party to be charged. The parties are independent contractors, and nothing in this Agreement or the performance of any of the parties’ obligations shall be considered to create a partnership, joint venture or similar relationship between the parties.
e. Notices. All demands, notices and communications required or permitted under this Agreement shall be in writing and shall be deemed given (i) upon personal delivery to the party to be notified, (ii) upon sending if by facsimile or email (both with confirmation), if sent during normal business hours and, if not, then on the next business day, (iii) three (3) days after mailing, if sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) one day after dispatch, if sent by a nationally recognized overnight courier, with respect to Company, address to Bolt On Technology, LLC, Attn: Michael Risich, CEO, 1105 Industrial Blvd., Southampton, PA 18966; and with respect to Customer, to the address provided in the Order Form or as part of Customer’s account registration process. The address for each party may be updated by written notice according to the process set forth above.