THIS AGREEMENT is made by and between Contractor Success Systems, Inc., with an address of 201 N. 3rd Street, Leesburg, FL 34788 ("CSS"), and the authorized licensee ("Licensee") (collectively, the "parties").
CSS is the owner of computer software for cost estimation and pricing of electrical contractor services, marketed and sold under the name PRECISION PRICING ("Software"), as well as related user information materials pertaining to the Software ("Documentation"); and
CSS desires to grant to Licensee, and Licensee desires to obtain from CSS, a non-exclusive license to use the Software and Documentation solely in accordance with the terms and on the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the promises and agreements set forth herein, the parties, each intending to be legally bound hereby, do promise and agree as follows.
1. LICENSE GRANT
CSS hereby grants to Licensee a limited non-exclusive right and license to use and store the Software on a computer, mobile computer, mobile device or tablet. This limited non-exclusive right and license to use and store the Software is valid only during any month in which the Licensee has paid the applicable service fee, and is limited to the number of users for which the applicable service fee has been paid.
From time to time, CSS may make certain features, enhancements, modifications, error corrections, bug fixes, patches, or updates ("Improvements") to the Software and may make them available to Licensee at CSS' sole discretion. License Fee may request that CSS incorporate Improvements into the Software, and CSS may, in its sole discretion, undertake to incorporate such Improvements.
All such Improvements shall be the sole property of CSS.
a. Printed Matter. Except as specifically set forth herein, no Software or Documentation which is provided by CSS pursuant to this Agreement in human readable form, such as written or printed documents, shall be copied in whole or in part by Licensee without CSS's prior written agreement.
b. Machine Readable Matter. Except as specifically set forth herein, any Software provided in machine readable form may not be copied by Licensee in whole or in part, except for Licensee's backup or archive purposes. Licensee agrees to maintain appropriate records of the number and location of all licensed copies of the Software and make such records available upon CSS's request. Licensee may print hard-copy versions of the worksheets generated by the Software, but agrees to reproduce all copyright and other proprietary notices on all copies in the same form and manner that such copyright and other proprietary notices are originally included on the Software. Licensee agrees to maintain control of any hard-copy versions generated as set forth below.
4. LICENSE FEES, TERM AND PAYMENT
a. License Fee. In consideration of the license granted herein, Licensee shall pay a Monthly License Fee for the Software and Documentation as set forth on the payment schedule set forth at www.electricalsuccesssystems.com. Some available payment plans may require a Startup Fee, which is non-refundable and shall not grant any rights herein without payment of the corresponding Monthly License Fee. The License shall commence on the date of first payment ("Effective Date"), and subsequent payments shall be made on the monthly anniversary of the Effective Date.
b. Term. The term of this Agreement shall be agreed upon between the parties on the Effective Date.
c. Payment, Taxes and Other Charges. All amounts payable hereunder by Licensee shall be payable in United States funds without deductions for taxes, assessments, fees, or charges of any kind. Licensee shall be responsible for paying all (i) sales, use, excise, value-added, or other tax or governmental charges imposed on the licensing or use of the Software or Documentation hereunder, (ii) freight, insurance and installation charges, and (iii) import or export duties or like charges.
5. INTELLECTUAL PROPERTY RIGHTS
a. Proprietary Notices. Licensee agrees to respect and not to remove, obliterate, or cancel from view any patent, copyright, trademark, confidentiality or other proprietary notice, mark, or legend appearing on any of the Software or Documentation or output generated by the Software, and to reproduce and include same on each copy of the Software and Documentation.
b. No Reverse Engineering. Licensee agrees not to modify, reverse engineer, disassemble, or decompile the Software, or any portion thereof.
c. Ownership. CSS represents that it is the owner of the entire right, title, and interest in and to the Software and Documentation, and that it has the sole right to grant licenses thereunder, and that it has not knowingly granted licenses thereunder to any other entity that would restrict rights granted hereunder except as stated herein. Licensee acknowledges that all of the intellectual property rights, including but not limited to rights of patent, copyright, trademark and trade secrets, in the Software and Documentation, and any copies made thereof, are the sole property of CSS. Licensee shall not have any right, title, or interest to the Software or Documentation except as provided in this Agreement, and further shall secure and protect all Software and Documentation consistent with maintenance of CSS's proprietary rights therein.
d. Third Party Software. CSS makes no proprietary claim to ownership of any third party programs that may be required in order to install, execute or operate the Software. Licensee promises to respect the intellectual property rights of all third parties, and shall operate the Software only in conjunction with properly licensed mobile devices and properly licensed copies of any third party software. CSS shall not be liable for any errors, missing data, duplication or deletion errors in any third party software, including the QuickBooks platform.
a. Acknowledgement. Licensee hereby acknowledges and agrees that the Software and Documentation constitute and contain valuable proprietary information and trade secrets of CSS and/or its suppliers, embodying substantial creative efforts and confidential information, ideas, and expressions. Accordingly, Licensee agrees to treat (and take precautions to ensure that its employees treat) the Software and Documentation as confidential in accordance with the confidentiality requirements and conditions set forth below.
b. Maintenance of Confidential Information. Licensee agrees to keep confidential all confidential information disclosed to it by CSS in accordance herewith, and to protect the confidentiality thereof in the same manner it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of confidential information); provided, however, that neither party shall have any such obligation with respect to use or disclosure to others not parties to this Agreement of such confidential information as can be established to: (1) have been known publicly; (2) have been known generally in the industry before communication by the disclosing party to the recipient; (3) have become known publicly, without fault on the part of the recipient, subsequent to disclosure by the disclosing party; (4) have been known otherwise by the recipient before communication by the disclosing party; or (5) have been received by the recipient without any obligation of confidentiality from a source (other than the disclosing party) lawfully having possession of such information.
c. Injunctive Relief. Licensee acknowledges that the unauthorized use, transfer or disclosure of the Software and Documentation or copies thereof will: (1) substantially diminish the value to CSS of the trade secrets and other proprietary interests that are the subject of this Agreement; (2) render CSS's remedy at law for such unauthorized use, disclosure or transfer inadequate; and (3) cause irreparable injury in a short period of time. If Licensee breaches any of its obligations with respect to the use or confidentiality of the Software or Documentation, CSS shall be entitled to equitable relief to protect its interests therein, including, but not limited to, preliminary and permanent injunctive relief.
d. Survival. Licensee's obligations under this Section will survive the termination of this Agreement or of any license granted under this Agreement for whatever reason.
7. DISCLAIMER OF WARRANTIES
THERE IS NO WARRANTY FOR THE SOFTWARE, TO THE EXTENT PERMITTED BY APPLICABLE LAW. CSS PROVIDES THE SOFTWARE "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CSS DISCLAIMS ANY ERRORS, MISSING DATA, DUPLICATION, DELETION, CORRUPTION OR INCOMPATIBILITY CAUSED WITH OR IN THIRD PARTY SOFTWARE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE AND ANY IMPLICATED THIRD PARTY SOFTWARE IS WITH LICENSEE. SHOULD THE SOFTWARE PROVE DEFECTIVE, LICENSEE ASSUMES THE COST OF ALL NECCSSARY SERVICING, REPAIR OR CORRECTION. CSS MAKES NO WARRANTY AS TO THE FITNESS OF THIS SOFTWARE FOR ANY PURPOSE, INCLUDING BUT NOT LIMITED TO ITS USE IN CONTRACTING SERVICES, ELECTRICAL OR OTHERWISE.
CSS IS NOT RESPONSIBLE FOR ANY ERRORS OR ADMISSIONS IN THE SOFTWARE OR DOCUMENTATION TO THE EXTENT IT IS NOT IN THE SAME FORM OR NOT IN ACCORD WITH THE NATIONAL ELECTRIC CODE OR ANY STATE, COUNTY, MUNICIPAL OR OTHER JURISDICTIONAL BUILDING OR ELECTRIC CODES. THE LICENSEE IS EXPRESSLY WARNED TO CONSIDER AND ADOPT ALL SAFETY PRECAUTIONS THAT MIGHT BE INDICATED BY THE ACTIVITIES HEREIN AND TO AVOID ALL POTENTIAL HAZARDS.
NO AGENT OR REPRESENTATIVE OF CSS IS AUTHORIZED TO ALTER OR EXCEED THE WARRANTY OBLIGATIONS OF CSS AS SET FORTH HEREIN. CSS DOES NOT REPRESENT OR WARRANT THAT ANY OR ALL ERRORS IN THE SOFTWARE AND DOCUMENTATION WILL BE CORRECTED.
8. LIMITATION OF LIABILITY
IN NO EVENT WILL CSS BE LIABLE TO LICENSEE FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, LOSS-OF-PROFIT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE, INABILITY TO USE, OR RELIANCE ON THE SOFTWARE (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY LICENSEE OR THIRD PARTIES OR A FAILURE OF THE PROGRAM OR THIRD PARTY SOFTWARE TO OPERATE WITH ANY OTHER PROGRAMS), EVEN IF CSS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Any provision herein to the contrary notwithstanding, the maximum liability of CSS to any person, firm or company whatsoever arising out of or in the connection with any license, use or other employment of any Software delivered to Licensee hereunder, whether such liability arises from any claim based on breach or repudiation of contract, warranty, tort or otherwise, shall in no case exceed the actual price paid to CSS by Licensee for the Software whose license, use, or other employment gives rise to the liability. The essential purpose of this provision is to limit the potential liability of CSS arising out of this Agreement. The parties acknowledge that the limitations set forth in this Section are integral to the amount of consideration levied in connection with the license of the Software and Documentation and any services rendered hereunder and that, were CSS to assume any further liability other than as set forth herein, such consideration would of necessity be set substantially higher.
Notwithstanding the warranty provisions set forth herein, all of CSS' obligations with respect to such warranties shall be contingent on Licensee's use of the Software in accordance with the terms set forth in this Agreement and in accordance with CSS' instructions as provided by CSS in the Documentation, as such instructions may be amended, supplemented, or modified by CSS from time to time. CSS shall have no warranty obligations with respect to any failures of the Software which are the result of accident, abuse, misapplication, power surge or electromagnetic field disruption. Licensee assumes sole responsibility for the installation, use and results obtained from use of the Software.
9. EXCLUSIVE REMEDY
LICENSEE AGREES THAT CSS' ENTIRE LIABILITY AND LICENSEE'S EXCLUSIVE REMEDY SHALL BE, AT CSS'S OPTION, EITHER: (1) RETURN OF THE LICENSE FEES; OR (2) REPAIR OR REPLACEMENT OF THE SOFTWARE UPON ITS RETURN TO CSS.
a. Termination by Licensee. At any time during the term of the Agreement the Licensee may terminate the Agreement, which shall be effective when all of the following conditions are met: (1) Licensee shall delete the Software and Documentation from any mobile device or tablet on which it is installed; (2) Licensee shall send an email to email@example.com, identifying the Licensee's name, account information, and the express intention to terminate the Agreement; and (3) Receipt of a termination notice sent from CSS to Licensee acknowledging termination, such receipt to be sent within seven (7) business days.
b. Termination for Breach. Either party may terminate this Agreement on thirty (30) days written notice to the other party in the event of a breach of any provision of this Agreement by the other party, provided that, during the thirty (30) days period, the breaching party fails to cure such breach.
11. POST TERMINATION RIGHTS
Upon the expiration or termination of this Agreement, all rights granted to Licensee under this Agreement shall forthwith terminate and immediately revert to CSS and Licensee shall discontinue all use of the Software and Documentation.
Upon expiration or termination of this Agreement, CSS may require that the Licensee immediately transmit to CSS, at no cost, all material relating to the Software and Documentation.
CSS shall have the right, in its sole discretion, to prosecute lawsuits against third parties for infringement of CSS's rights in the Software and Documentation.
Licensee agrees to fully cooperate with CSS in the prosecution of any suit related to the Software and Documentation. CSS shall reimburse the other party for the reasonable expenses incurred as a result of such cooperation.
13. JURISDICTION AND DISPUTES
This Agreement shall be governed by the laws of Florida.
All disputes hereunder shall be resolved in the state or federal courts of Lake County, Florida. The parties consent to the exclusive jurisdiction and venue of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defenses otherwise available.
The license granted hereunder is personal to Licensee and may not be assigned by any act of Licensee or by operation of law unless in connection with a transfer of substantially all the assets of Licensee or with the consent of CSS.
15. AGREEMENT BINDING ON SUCCCSSORS
This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their heirs, administrators, successors and assigns.
No waiver by either party of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of this Agreement.
If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision and such invalid provision shall be deemed to be severed from the Agreement.
This Agreement constitutes the entire understanding of the parties, and revokes and supersedes all prior agreements between the parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents that may be in conflict therewith.