Renewal Terms and Conditions
1.1 Hosted Application.Subject to the terms of this Agreement, including without limitation, the payment of the fees set forth in this Agreement, RO hereby grants to Client a non-sub-licensable, non-transferable, non-exclusive license to access the RO hosted application software via the world wide web (the “Application”) for use by Client’s employees, independent contractors, Client’s direct customers and Client prospective customers (“Customers”), and Client’s channel partners (“Partners”) and with a maximum number of User accounts as specified in this Agreement. A “User” is defined as a single individual. Logins may not be shared. Client may add additional Users at anytime by notifying RO via email or postal mail. Client may reduce the number of Users only after the first year anniversary of this Agreement. RO will provide updates and modifications to the software from time to time. Client shall make no attempt to: (a) alter, modify, improve, reverse engineer, disassemble or de-compile the Solutions; (b) interfere in any manner with the hosting of the Application or the RO Solution associated therewith; or (c) sublicense or transfer any of Client’s rights under this Agreement, except as otherwise provided in this Agreement, or otherwise use the RO Solution for the benefit of a third party to this Agreement.
2.1 Late fees.Fees not paid within the specified time will accrue interest at a rate of 1% per month compounded monthly and Client shall be liable to RO for all costs associated with collecting such fees, including attorneys’ fees, court and other collection costs.
2.2 Increases. After the initial term of this Agreement, RO may increase license fees upon sixty (60) days email or written notice to Client but no more often than once every twelve (12) month period.
3.1 Term.This Agreement shall have an initial 12 month term. After that period the Agreement shall be automatically renewed for successive one (1) year periods (“Renewal Terms”) and payment for the renewal shall be due per this Agreement, unless either party indicates its intention in writing to the other party not to renew the Solutions under this the Agreement sixty (60) days’ prior to the end of the then current term.
3.2 Termination.In the event that Client fails to make any payments due hereunder, is late in making any payment, or defaults in any other term of this Agreement, and fails to cure such breach within 30 days of receiving written notice of such breach, RO may terminate this Agreement immediately by giving written notice of its intent to do so. Failure of RO to terminate this Agreement for any default, or any nonpayment or late payment of one payment shall not be construed as a waiver of its right to terminate this Agreement should a subsequent default occur, or a subsequent payment or payments be late or not made. RO’s right to terminate this Agreement as stated in this paragraph shall be in addition to any other remedy it may have, and RO may collect any amounts due, plus late fees, interest, costs, attorneys fees, and other damages incurred as the result of Client’s default after termination of this Agreement. Client may terminate this Agreement on written notice to RO, if RO materially breaches this Agreement and fails to cure such material breach within 30 days of written notice by Client to RO specifying the breach.
3.3 Effect of Termination. Upon termination of this Agreement RO will promptly cease performing the RO Solutions and all services and all Client access to the RO Solution and the Applications shall be immediately terminated. The following provisions shall survive the termination or expiration of this Agreement: The obligation to pay all amounts due under Article 3 which accrue prior to termination, Articles 5, 6, and 7 in their entirety and this paragraph.
4.1 RO will make commercially reasonable efforts to provide the Solutions error-free, uninterrupted, secure and virus-free. The Applications, Reports, Solutions, and all other data, services and materials provided in connection with this Agreement by RO and its suppliers are provided “as is” without representations or warranties of any kind other than explicitly stated in this Agreement. Neither RO, nor its third-party service or software providers, shall have any liability whatsoever for any decision made or action taken by Client or Client’s Customers in reliance upon the RO Solution.
4.2 RO shall defend and indemnify Client, their respective directors, officers, shareholders, employees, agents, and subcontractors (the “Indemnitees”) from and against any and all liability, claims or demands and causes of action resulting from RO’s infringement of any third party’s intellectual property rights which may be asserted against the Indemnitees or which the Indemnitees individually or collectively, may suffer, arising in any way out of any action taken by the other party or any other person or entity. Client shall indemnify RO, its respective directors, officers, shareholders, employees, agents and subcontractors (the “RO Indemnitees”) from and against any and all liability, claims, demands and causes of action resulting from Client’s prospective customers utilization of Client’s marketing collateral that is accessed through the RO Solution.
5.1 Confidential Information shall be comprised of all activity and use of the RO Solution by Client and Client’s prospective customers and any other documents or information, which either party may designate in writing or clearly label as confidential. Except as necessary for delivery of the Solutions under this Agreement, each party agrees that it will not disseminate, or in any way disclose the other party’s Confidential Information nor the terms of this Agreement to any person, firm or business, except as authorized by this Agreement and to the extent necessary for performance or enforcement of this Agreement. Each party agrees that it will disclose Confidential Information only to those of its employees and contractors who need to know such information in order to perform their job duties and contractual obligations and who have previously agreed to be bound by non-disclosure terms and conditions comparable to, but in any event not less restrictive than, the non-disclosure obligations of this Agreement. Client acknowledges that RO may, however, utilize and disclose only in an anonymous and aggregated basis data on usage of the RO Solution for purposes such as conducting benchmarks, statistical studies, analysis and other such amalgamations of the data. Each party agrees that it will treat all Confidential Information of the other party with the same degree of care as it accords its own valuable Confidential Information; each party represents that it exercises reasonable care to protect its own valuable Confidential Information. However, a party bears no responsibility for safeguarding the Confidential Information of the other party that is (i) publicly available, (ii) already in such party’s possession, as of the date of disclosure hereunder, and not subject to a confidentiality obligation, (iii) obtained by such party from third parties without restrictions on disclosure, or (iv) independently developed by such party without reference to the Confidential Information of the other party. Notwithstanding the foregoing, a party receiving Confidential Information shall not be in violation of this Article 7 with regard to a disclosure that was in response to a valid order of a court or tribunal of competent jurisdiction, or pursuant to any applicable law or regulations, provided that the receiving party provides the other party with prior written notice of such disclosure in order to permit the other party to seek confidential treatment of such information.
5.2 Client authorizes RO to include Client company name on lists of existing RO customers. Client authorizes RO to conduct satisfaction surveys of Client prospects that visit the RO application as a result of invitations sent by Client. Client authorizes RO to send occasional periodic update and informational emails to registered users of the solution from Client company.
6.1 Agreement Not to Solicit: The parties hereto agrees that, during the term of this Agreement and for one year following the termination hereof for any reason, neither party shall employ or otherwise solicit for hire or use the services of any employee of the other, or former employee or agent of the other, without such other party’s prior written consent. As used in the previous sentence, the term “solicit” shall not include general advertising for applicants for a position.
6.2 Entire Agreement; Amendments; Waiver. This Agreement, including the exhibits, if any, sets forth the entire understanding and agreement of the parties, and supersedes any and all prior oral or written agreements or understandings between the parties, as to the subject matter of this Agreement. This offer and the acceptance of this offer are expressly limited to the terms and conditions stated herein. The terms and conditions contained herein shall control, and purchase orders or other offers to purchase Products or services from RO which contain language modifying, adding to or which are inconsistent with the terms and conditions contained herein are expressly rejected. Such offers are inoperative and not binding against RO. None of the terms and conditions contained herein may be amended or added to except by an agreement in writing signed by an officer of RO, which writing specifically refers to this document by its title and effective date. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
6.3 Force Majeure. Except as otherwise provided, if performance hereunder (other than payment) is interfered with by any condition beyond a party’s reasonable control, the affected party, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such condition. Each party acknowledges that website operations may be affected by numerous factors such as power outages, telephone and communication line failures, equipment failures and other matters which are outside of a party’s control.
6.4 Governing Law, Jurisdiction and Venue. Should RO be required to file a complaint, this Agreement will be governed and construed in accord¬ance with the laws of the State of Colorado without giving effect to conflict of laws principles and both parties will submit to personal jurisdiction in Colorado. Should Client be required to file a complaint then this Agreement will be governed and construed in accord¬ance with the laws of the State of Colorado without giving effect to conflict of laws principles and both parties will submit to personal jurisdiction in Colorado. Independent Contractors. The parties are independent contractors, and no agency, partnership, franchise, joint venture, or employment relationship is intended or created by this Agreement. Neither party shall make any warranties or representations on behalf of the other party.
6.5 No Implied Licenses. There are no implied licenses under this Agreement, and any rights not expressly granted to a licensee hereunder are reserved by the licensor or its suppliers. All rights not specifically granted to Client are reserved by RO.
6.6 Severability. If any provision herein is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
6.7 Costs and Attorneys’ Fees. In the event any action, proceeding or litigation, judicial or non-judicial, arises out of the subject matter of this Agreement, the prevailing party shall be entitled to payment of all costs, expenses and attorney fees incurred, including those incurred on appeal and for collection of a judgment.