1. Master Software License Agreement
GoExhibit Corporation hereby grants Customer, and Customer hereby accepts from GoExhibit Corporation, a non-exclusive and non-transferable right and license to use the Products specified below, subject to the terms and conditions specified herein.
"Products" means (i) the executable object code form of the Trade Show 3D software that GoExhibit Corporation makes available, whether embedded on disc or other media (the "Software"), (ii) the published user manuals and the documentation that GoExhibit Corporation generally makes available for the Software (the "Documentation"), (iii) the performance enhancements, updates, upgrades or new versions of the Software or Documentation that GoExhibit Corporation may provide to Customer under this Agreement (the "Enhancements") and (iv) any copy of the Software, Documentation, or Enhancements.
Limitations. Customer shall not (i) assign, sublicense, transfer, lease, rent or distribute any of its rights in the Products, (ii) port, translate, localize, or create derivative works based upon the Products in any manner without GoExhibit Corporation's written consent, (iii) reverse assemble, decompile, reverse engineer, translate or otherwise attempt to derive or obtain the source code, the underlying ideas, algorithms, structure or organization of the Products, (iv) copy or duplicate the Products (except that with respect to any physical copies of the Products provided by GoExhibit Corporation to Customer hereunder, Customer may make up to two copies of such Products and the installed version of such Products for backup purposes only), or (v) use the Products in any service bureau, time sharing or third party training arrangement. No license is granted for Customer to use the Software for more than one trade show room, where a "Room" consists of a single virtual room containing eleven (11) booths. If a License Limitation Schedule is attached to this Agreement and signed by both parties, the terms of that limitation will also apply.
License Fees. Customer will pay to GoExhibit Corporation the license fees (the "License Fees") set forth in the Fee Schedule attached to this Agreement.
Payment. Initial License Fees will be due on the Effective Date unless otherwise noted. Thereafter, Subscription Fees will be due prior to the anniversary of the Monthly Subscription Term. In the event that Customer has engaged GoExhibit Corporation to provide other services, GoExhibit Corporation will invoice Customer for such services and all other non-Service Fee or non-License Fee amounts due hereunder on a monthly basis, and payment shall be due upon receipt of the invoice. GoExhibit Corporation shall have the right to amend the amounts set forth on the Schedules on ninety (90) days' prior notice to Customer and reserves the right to adjust its time and materials rates on thirty (30) days' prior notice.
Late Payment. Any amounts due hereunder which are not paid within thirty (30) days of the due date for such payment shall accrue interest at the lesser of 1.5% per month or the maximum amount permitted by applicable law. In the event that Customer fails to timely pay any amount due hereunder and does not cure such breach within 30 days of receiving notice, Customer agrees that GoExhibit Corporation may terminate this Agreement, suspend provision of any services to be provided by GoExhibit Corporation relating to the Software or the Application and/or cause an interruption in the operation of the Software until all amounts due (including interest and any then-applicable reactivation fee specified by GoExhibit Corporation) are paid in full. Customer shall also be obligated to reimburse GoExhibit Corporation for all expenses incurred by GoExhibit Corporation in connection with collecting on a late payment from Customer, including attorneys' fees and the fees of any collection agency retained by GoExhibit Corporation.
Prepaid Fees. In the event of the termination of this Agreement, Customer shall not be entitled to receive a refund of any prepaid License Fees or Support Fees.
Taxes. The fees set forth herein are exclusive of all taxes. Customer is responsible for payment of all taxes of every kind imposed in connection with the sale or license to Customer of products or services arising as a result of this Agreement (except for taxes imposed on GoExhibit Corporation's net income).
Hosting and Hosting Fees. The fees paid to GoExhibit Corporation pursuant to this Agreement do not include any Internet Service Provider ("ISP") Hosting Fees. Customer must separately pay an ISP for hosting services. GoExhibit Corporation will initially configure the Software and arrange for its installation. If customer chooses to migrate the Software to a different ISP, Customer may engage GoExhibit Corporation at GoExhibit Corporation's then-current time and materials rates.
4. Maintenance and Support
(a) Maintenance and Support. During the warranty period, which runs for sixty (60) days from the earlier of i) the date on which the Software is installed or ii) ninety (90) days after the effective date of this Agreement. GoExhibit Corporation will at no additional charge provide Customer with (x) the performance enhancements and updates that GoExhibit Corporation may make generally available as part of its standard maintenance services (the "Updates"), (y) a replacement copy of the Product if the media becomes damaged or destroyed to the extent Products are unusable, and (z) advice, consultation, assistance for those instances in which the Software does not perform in material conformity with the Documentation. GoExhibit Corporation may offer on-site support to Customer at additional fees.
(b) Limitation. The Updates will include all enhancements that GoExhibit Corporation generally makes publicly available as part of its standard maintenance services and will not include any upgrade or new version of the Products that is generally made publicly available as a separately priced item. This section will not be interpreted to require GoExhibit Corporation to develop or release Enhancements that are not made generally available as part of its standard maintenance services or to customize enhancements to satisfy Customer's particular requirements. If an enhancement replaces the prior version of a Product, Customer will discontinue use and destroy the prior version upon installing the Enhancement. GoExhibit Corporation shall have no responsibility for correcting or otherwise assisting Customer with any non-conforming performance of the Software that is not due to the improper design or installation of the Software., such as a failure or non-conformity arising out of the use of the Software in connection with software not supplied by GoExhibit Corporation. If GoExhibit Corporation is asked to correct a non-conformity that does not arise out of the design or installation of the Software, GoExhibit Corporation may charge its then-current time and materials rates for such work.
5. Warranty and Remedies
(a) Limited Warranty. GoExhibit Corporation warrants it has the right to (i) enter into this Agreement and (ii) grant the licenses offered under this Agreement. GoExhibit Corporation also warrants that the Software will perform substantially as described in the accompanying Documentation during the Warranty Period. Customer acknowledges that the Products may not satisfy all of Customer's particular requirements and that use of the Products may not be uninterrupted or error free.
(b) Remedies. In case of breach of warranty, GoExhibit Corporation or its representative will correct or replace any defective Software or, if not practicable, GoExhibit Corporation will accept the return of the defective Software, terminate the applicable Product Schedule, and refund to Customer the License Fee actually paid to GoExhibit Corporation for the defective Software and all fees paid by Customer to GoExhibit Corporation for services related to the Software and pursuant separate agreements signed by GoExhibit Corporation and Customer. Customer acknowledges that this paragraph sets forth Customer's exclusive remedy, and GoExhibit Corporation's exclusive liability, for any breach of warranty or other duty related to the quality of the Products.
(c) Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR TO THE EXTENT REQUIRED BY APPLICABLE LAW, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE PRODUCTS, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY GOEXHIBIT, ITS LICENSORS OR REPRENTATIVES OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY ASSURANCE OF SATISFACTION) ARE HEREBY DISCLAIMED, OVERRIDDEN, AND EXCLUDED. NO WARRANTY AS TO THE PERFORMANCE OR RELIABILITY OF ANY INTERNET SERVICE PROVIDER, HOSTING PROVIDER, INTERNET BROWSER OPERATING SYSTEM OR DEVICE IS MADE.
(a) Indemnity. If an action is brought against Customer claiming that Product infringes a patent, trade secret or copyright, GoExhibit Corporation will defend Customer at GoExhibit Corporation's expense and, subject to this Section and Section 7, pay the damages and costs finally awarded against Customer in the infringement action, but only if (i) Customer notifies GoExhibit Corporation promptly upon learning that the claim might be asserted, (ii) GoExhibit Corporation has sole control over the defense of the claim and any negotiation for its settlement or compromise, and (iii) Customer takes no action that is contrary to GoExhibit Corporation's interests.
(b) Alternative Remedy. If a claim described in the preceding paragraph may be or has been asserted, Customer will permit GoExhibit Corporation, at GoExhibit Corporation's sole option and expense, to (i) procure the right to continue using the Product, (ii) replace or modify the Product to eliminate the infringement while providing functionally equivalent performance, or (iii) accept the return of the Product and refund to Customer the License Fee paid to GoExhibit Corporation for such Product and all fees paid by Customer to GoExhibit Corporation for services related to the Software and pursuant separate agreements signed by GoExhibit Corporation and Customer.
(c) Limitation. GoExhibit Corporation shall have no indemnity obligation to Customer under this Section of the patent or copyright infringement claim results from (i) a correction or modification of the product not provided by GoExhibit Corporation or approved by GoExhibit Corporation in writing, (ii) the failure to promptly install an Update if installation of such update would have avoided the infringement, or (iii) the combination of the Product with other non-GoExhibit Corporation software if such combination is not approved by GoExhibit Corporation in writing.
7. Limitation of Liability
GOEXHIBIT WILL NOT BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OR LIABILITIES OF ANY KIND OR FOR LOSS OF DATA, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF BUSINESS OR OTHER LOSS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE, EVEN IF GOEXHIBIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN NO CASE SHALL GOEXHIBIT'S LIABILITY EXCEED EITHER THE AMOUNT ACTUALLY PAID BY THE CUSTOMER IN LICENSE FEES (IN THE CASE OF LIABILITY) OR THE DEVELOPMENT FEES FOR ANY SOFTWARE CUSTOMER HAS ENGAGED GOEXHIBIT TO CREATE.
All intellectual property and other proprietary rights in and related to the Products are and will remain the exclusive property of GoExhibit Corporation or its licensors, whether or not specifically recognized or perfected under local applicable law. Customer will not take any action which jeopardizes GoExhibit Corporation's proprietary rights or acquire any right in the Products, except the limited use rights specified in this Agreement. GoExhibit Corporation will own all rights in any copy, translation, modification, adaptation, or derivation or the Products, including any improvement or development thereof.
Proprietary Information and Materials. Customer and GoExhibit Corporation hereby acknowledge that they will receive Proprietary Information and Materials from the other party during the term of this Agreement. "Proprietary Information and Materials" is defined to include all technical, financial, customer, personnel and other business information of GoExhibit Corporation and Customer and any materials pertaining thereto, including without limitation the Software, the Application and Documentation and the terms of this Agreement. Each party agrees to hold the other party's Proprietary Information and Materials in strict confidence, and not to use or disclose such information, except as expressly permitted hereunder. Each party also agrees that it will restrict access to the other party's Proprietary Information and Materials solely to those of its employees and agents who need to know such information in connection with the performance of such party's obligations under this Agreement, and each party shall ensure that such employees and agents fully comply with the terms set forth in this Section. Notwithstanding anything to the contrary herein, Neither party shall be permitted to disclose the other party's Proprietary Information and Materials to any party that provides services or products that are the same as or similar to the services or products provided by such other party to its customers at any time during the term hereof. The parties' respective obligations hereunder shall survive any termination or expiration of this Agreement.
Exceptions to Proprietary Information and Materials. Notwithstanding the foregoing, Proprietary Information and Materials shall not include any information which a party can prove is (i) now or hereafter, through no unauthorized act or failure to act on the disclosing party's part, in the public domain; or (ii) known to such party without an obligation of confidentiality effective at the time such party received such Proprietary Information and Materials from the other party, as evidenced by written records. If a party elects to rely on one or more of the foregoing provisions, it shall have the burden of proving the applicability of the provision to its disclosure.
10. Term and Termination
Customer may terminate this Agreement or any Product Schedule, without right to refund, by notifying GoExhibit Corporation of such termination. GoExhibit Corporation may terminate this Agreement, upon 60 days notice and without judicial or administrative resolution, if Customer or any of Customer's employees or agents breach any term or condition of this Agreement. This Agreement will terminate automatically if Customer becomes insolvent, or enters into any proceeding that relates to insolvency or protection of creditor's rights.
Upon the termination of this Agreement for any reason, all rights granted to the Customer will cease, except to the extent reasonable necessary to recover and migrate data within 60 days of termination, Customer will promptly (i) purge the Products from its systems and files, (ii) destroy any copies of the Products in its possession, and deliver to GoExhibit Corporation an affidavit which certifies that Customer has complied with these termination obligations. The provisions of Sections 7,8,9, and 10 will survive termination of this Agreement.
Customer shall not assign, delegate or otherwise transfer this Agreement or any of it rights or obligations hereunder without GoExhibit Corporation's prior approval, which approval shall not be unreasonably withheld. This Agreement will bind and inure to Customer's successors-in-interest.
12. Miscellaneous Provisions.
Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof, and supersedes all prior agreements, understandings and representations relating hereto. The Agreement shall not be varied except by written agreement signed by both GoExhibit Corporation and Customer.
Notices. Any notice provided for or permitted under this Agreement will be treated as having been given when delivered via email, on the next business day after the day on which it is sent. Any notices required or permitted to be given shall be in writing and addressed to Customer as described in the beginning of this Agreement and to GoExhibit Corporation as follows:
or at such other address of which the other party has been notified in accordance with the provisions of this Section.
Waiver; Severability. The failure by a party to exercise any right hereunder shall not operate as a waiver of such party's right to exercise such right or any other right in the future. In the event that any of the terms of this Agreement become or are declared to be invalid or unenforceable, the remainder of the term shall be amended to achieve as closely as possible the intended effect of the original term, and all remaining terms of this Agreement shall remain in full force and effect.
Arbitration. In the event of any dispute relating to this Agreement, the parties will endeavor to resolve such dispute by conducting a minimum of two (2) discussions between senior executives of each party having authority to settle such dispute. If such discussions do not result in a resolution of the dispute, such dispute will finally be settled by arbitration in Chicago, Illinois in accordance with the Arbitration Rules (and if Customer is a non-U.S. entity, the International Arbitration Rules) of the American Arbitration Association ("AAA") in tribunal on which the parties agree. The Arbitration Tribunal will not have the authority to award punitive damages to either party. Each party will bear its own expenses, but the parties will share equally the expenses of the tribunal. This Agreement will be enforceable, and any arbitration award will be final, and judgment thereon may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, claims for injunctive relief or other pre-judgment remedies, and claims for Customer's failure to pay for the services provided by GoExhibit Corporation in accordance with this Agreement, may be brought in state or federal courts located in Chicago, Illinois, and the parties hereby consent and waive any objection to jurisdiction and venue for purposes thereof.
13. ACCEPTANCE OF TERMS
BY CLICKING ON THE "AGREE" BUTTON BELOW, AND REGISTERING FOR AND USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN AS WELL AS ALL POLICIES AND GUIDELINES INCORPORATED