Exocomm system license agreement
last modified : June 13, 2016
This License Agreement (this Agreement) is between Exocomm, and you, (the licensee).
BY ACCEPTING THIS AGREEMENT, EITHER BY COMPLETING THE ONLINE APPLICATION PROCESS OR BY CLICKING A BOX INDICATING ACCEPTANCE OF THIS AGREEMENT, LICENSEE AGREES TO BE BOUND BY THE FOLLOWING AGREEMENT.
If Licensee is entering into this Agreement on behalf of a company or other legal entity, Licensee represents that it has the authority to bind such entity to these terms and conditions. If Licensee does not have such authority, or if Licensee does not agree with the terms of this Agreement, Licensee must not accept this Agreement.
WHEREAS Exocomm has developed proprietary operating system software and provides certain related hardware (routers and gateways) and services including training, technical support, and marketing materials;
AND WHEREAS Licensee wishes to obtain from Exocomm, and Exocomm desires to provide Licensee access to and use of the Exocomm operations platform, and to provide the related routers and services, all as further described and defined in this Agreement;
NOW THEREFORE, in consideration for the premises and mutual covenants and agreements herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
Marks means trade-marks, trade names, logos and designs;
Person means an individual, a corporation, a partnership, a trust, an unincorporated organization, the government of a country or any political subdivision thereof, or any agency or department of any such government, and the executors, administrators or other legal representatives of an individual in such capacity;
Personal Information means information about an identifiable individual, and includes any information that is personal information within the meaning of one or more Applicable Privacy Laws;
Processing or Process means the collection, use, modification, retrieval, disclosure, storage, anonymization, deletion, and/or management of Personal Information.
Services means the provision of the Exocomm Site and Exocomm VPN, the provision of the Exocomm Control Panel as a service for access and use by Licensee;
Exocomm Control Panel means the Exocomm proprietary real-time reporting and management software application with integrated ad server hosted by Exocomm and running on the Exocomm Site;
Exocomm Router means a wireless router or a gateway (as applicable) configured to function only with the Exocomm Control Panel, all associated router hardware such as antennae and power supply unit, and installation guides and other related material;
Training Materials means training materials and content, including videos, such as getting started checklists, system configuration, sales training techniques, and sales strategy blueprints.
Exocomm Technology means, whether licensed, acquired or developed by Exocomm, and as may be modified, enhanced or updated during the Term, all information, materials, know-how or technology, elements, data, graphics, programming and coding (including all interfaces, navigational devices, menus, menu structures or arrangements, icons, help and other operational instructions, and all other components of any source or object computer code) that comprise the Exocomm Site (and the Look and Feel thereof), the Exocomm VPN, the Exocomm Control Panel, the Marketing Templates, the Exocomm Marks, and the Exocomm Knowledge Repository, and all literal and non-literal expressions of ideas that operate, cause, create, direct, manipulate, access, or otherwise affect the Exocomm Site (and the Look and Feel thereof), the Exocomm VPN, the Exocomm Control Panel, the Marketing Templates, the Exocomm Marks, and the Exocomm Knowledge Repository, and design elements;
Exocomm VPN means the Virtual Private Network operated and managed by Exocomm that permits connection to the Exocomm Site on a secure, encrypted basis.
Exocomm shall, during the Term, operate the Exocomm Site and the Exocomm VPN for access by the Licensee as contemplated in this Agreement.
Exocomm shall, during the Term, host the Exocomm Control Panel on the Exocomm Site. In connection therewith, Exocomm hereby grants Licensee a license to remotely access and use the Exocomm Server during the Term on a non-exclusive, world-wide, fully paid-up, royalty-free basis for the purpose of managing the Licensee Network, including collecting, organizing and generating reports using End User Data and providing same to Clients, conducting marketing and promotional activities (including using the Marketing Templates as contemplated below), and using other Exocomm Control Panel functionality as may be added from time to time.
Licensee shall not: (i) decompile, transform, modify, translate, disassemble, reverse engineer or otherwise attempt to decrypt or derive the source code, any trade secrets, or any sensitive or proprietary information of, or included in or related to the Exocomm Control Panel; (ii) modify, merge, alter, copy, or otherwise reproduce or tamper with the Exocomm Control Panel or any components of the Exocomm Services, or produce or create any derivative works of the Exocomm Control Panel; (iii) rent, share, lend or operate the Exocomm Control Panel on a time share or service bureau basis, or offer any services that would compete with or replace the Exocomm Services, (iv) use or access the Exocomm Control Panel or Exocomm Site to publish, transfer, display, store, distribute or disseminate or otherwise transmit, load upon or make available anything (including information, files, software, data or other content) that is infringing of a third partys intellectual property or other rights, inappropriate, inaccurate, illegal, profane, defamatory, obscene or indecent, or any viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software, program or device that may be damaging, or to damage, misappropriate, hack into or misuse the Exocomm Control Panel, the Exocomm Site, or any components of the Exocomm Services; or (v) otherwise use the Exocomm Control Panel, Exocomm Site, or the Exocomm Services for unlawful, prohibited, illegal, inappropriate, offensive, damaging or otherwise unsuitable purposes, including in connection with activities involving junk email, spamming, hacking, defamation, abuse, harassment, stalking, threatening or otherwise violating the rights of any person. Licensee is responsible for all Licensee Content, whether posted on the Landing Page, used in the Marketing Templates, or otherwise. Exocomm does not pre-screen Licensee Content, but Exocomm has the right (but not the obligation) in its sole discretion to refuse or remove any Licensee Content.
Exocomm may provide Licensee with a password to access and use the Exocomm Site and the Exocomm Control Panel. Licensee is responsible for maintaining the confidentiality of Licensees password, and is responsible for all activities that occur under Licensees password. Licensee agrees to immediately notify Exocomm of any unauthorized use of Licensees password or any other breach of security, which includes but is not limited to computer viruses, trojan horses, spyware, malware, adware, hacking, and other malicious or unwanted means expressly or impliedly prohibited by, or inconsistent with, any provision of this Agreement. Exocomm reserves the right to revoke Licensees access to and use of the Exocomm Site and the Exocomm Control Panel, at its sole option and discretion and without notice to Licensee, if any misuse or foul play occurs or is suspected in respect thereof. Exocomm will not be liable for any loss or damage arising from Licensees failure to provide Exocomm with accurate information or to keep Licensees password secure.
As agreed between the parties, Exocomm owns and shall continue to own all right, title and interest including intellectual property and proprietary rights in and to the Exocomm Technology. In addition to the rights granted to the Exocomm Control Panel, to the extent required to enable Licensee to provide the Exocomm Services offering and related service to Clients, Exocomm hereby grants to Licensee a non-exclusive, limited license during the Term to use, install, load, access, view, store, display, produce, reproduce, and communicate to the public the Exocomm Technology.
Exocomm's compensation for services and equipment rendered to Licensee pursuant to this Agreement shall be determined in accordance with the fees and pay schedule set out in Exocomm's standard fee schedule. Exocomm may change the fees and pay schedule at any time.
Licensee hereby authorizes Exocomm to draw monthly automatic recurring payments from Visa or MasterCard, covering the initial setup fee, all monthly dues and all other applicable payments to Licensees service and equipment as stated in a monthly invoice that shall be e-mailed by Exocomm. Licensee shall pay this invoice via an automated electronic transaction.
The fees will renew automatically on a month-to-month basis, and monthly recurring payments, where applicable, will continue until notice of cancellation is received.
All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Licensee shall be responsible for payment of all such taxes, levies, or duties.
Exocomm reserves the right to revoke access to services if Licensees balance is overdue or invoices are not paid in full. At a minimum, Exocomm will give 7 days notice to Licensee before terminating this Agreement.
If for whatever reason, Licensee defaults on payment or its invoices are not paid in full Licensee hereby authorizes Exocomm or its assignee to collect the outstanding monies, plus service charges and interest, in any method available to Exocomm. Licensee shall indemnify Exocomm for all collection or legal fees incurred by Exocomm in order to satisfy Licensees payment defaults.
There will be no refunds or credits for setup fees, partial months of service, upgrade/downgrade refunds, or refunds for months unused with any service.
disclaimer of warranties
EXCEPT TO THE EXTENT NOT ALLOWED BY APPLICABLE LAW, EXOCOMM HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE EXOCOMM SITE, THE EXOCOMM APPLICATIONS, AND SERVICES AND THEIR PERFORMANCE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD TITLE, SATISFACTORY QUALITY OR NON-INFRINGEMENT, OR THOSE ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EXOCOMM DOES NOT WARRANT THAT (A) THE SERVICES WILL MEET LICENSEES SPECIFIC REQUIREMENTS, (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, OR (D) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. THE SERVICES ARE PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS.
IN NO EVENT SHALL EXOCOMM BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, LOST REVENUE, LOST PROFITS, LOSS OF USE, LOSS OF DATA OR LOSS OF OTHER ECONOMIC ADVANTAGE) HOWEVER THEY ARISE, WHETHER FOR BREACH OR IN TORT, AND EVEN IF EXOCOMM HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED AT LAW, EXOCOMM's LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNT OF MONEY PAID TO EXOCOMM BY LICENSEE UNDER THIS AGREEMENT IN THE THREE (3) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
Licensee shall indemnify and hold Exocomm and its officers, directors, employees, agents, representatives, contractors, successors and assigns harmless from and against any and all Losses arising out of or attributable to its (a) fraud, willful misconduct or gross negligence, (b) breach of its confidentiality obligations under this Agreement, (c) breach of Section 3.5 or use of the Exocomm Control Panel in a manner beyond the scope of use contemplated in Section 2.2 , (d) its infringement, misappropriation or violation of third party intellectual property rights due to Licensee Content, and (e) misuse of End User Data or breach of any Applicable Privacy Laws, including in each case where such Losses are caused by those whom such party is responsible for at law. For purposes of this Agreement, the term Losses means all losses, liabilities and damages (including taxes and related penalties) and all related costs and expenses, including reasonable legal fees on a full indemnity basis, and expenses and costs of litigation, settlement, judgment, appeal, interest and penalties.
Restriction on Use of Confidential Information. Licensee acknowledges that in connection with this Agreement it may have access to proprietary information of Exocomm, including but not limited to trade secrets, data, processes, technical information, business knowledge, pricing, service providers, hosting providers, technology partners, research and development and marketing strategies (hereinafter collectively referred to as Confidential Information). Licensee acknowledges that the disclosure of Confidential Information in any manner would be highly detrimental to the interest of Exocomm. Licensee agrees that the right to maintain such Confidential Information constitutes a proprietary right, which Exocomm is entitled to protect. Accordingly, Licensee shall not disclose or permit (either during this Agreement or thereafter) the disclosure of any Confidential Information to any person, or use or permit the use of same, for any purposes other than those of the owner of such information. Licensee shall not use any Confidential Information of Exocomm except as may be necessary to perform its obligations under this Agreement.
Licensee may disclose Confidential Information in response to a valid court order, law, rule, regulation (including without limitation any securities exchange regulation), or other governmental action provided that (a) Exocomm is notified in writing prior to disclosure of the information, and (b) Licensee assists Exocomm, at Exocomms expense, in any attempt by the other to limit or prevent the disclosure of the Confidential Information.
Licensee agrees that Exocomm shall have no adequate remedy at law if there is a breach or threatened breach of this Article 8 and, accordingly, that Exocomm shall be entitled (in addition to any legal remedies available) to injunctive or other equitable relief to prevent or remedy such breach.
Upon the termination or expiration of this Agreement or upon the earlier request of Exocomm, the Licensee shall (a) at its own expense, (i) promptly return to Exocomm all information that is in tangible form (and all copies thereof) that is the property of Exocomm (including pursuant to this Agreement) or that contains any Confidential Information (collectively, the Material Information), or (ii) upon written request from Exocomm, destroy such Material Information and provide Exocomm with written certification of such destruction, and (b) cease all further use of any Material Information, whether in tangible or intangible form.
The Confidential Information of Exocomm is, and will remain, the property of Exocomm. Licensee obtains no right, title, interest or license in or to any of the Confidential Information of Exocomm except for the rights expressly set forth in this Agreement.
Licensee shall comply with all Applicable Privacy Laws when using the Services. Without limiting the foregoing, Licensee shall only Process Personal Information for the purposes of rendering the services to Client, and shall not disclose any Personal Information, in any manner whatsoever, to any third party other than Client.
Exocomm reserves the right to audit Licensees use of the Exocomm Control Panel, including access logs and activities.
term and termination
This Agreement will commence on the Effective Date and shall continue on a monthly basis (the Term) unless it is terminated earlier.
If either party materially breaches this Agreement, and such default is not cured within thirty (30) days after written notice is given to the defaulting party specifying the default, then the party not in default may, by giving written notice thereof to the defaulting party, terminate this Agreement as of a date specified in such notice of termination.
Either party may immediately terminate this Agreement by giving written notice to the other party in the event of (a) the liquidation or insolvency of the other party, (b) the appointment of a receiver or similar officer for the other party, (c) an assignment by the other party for the benefit of all or substantially all of its creditors, or (d) the filing of a meritorious petition in bankruptcy by or against the other party under any applicable bankruptcy or debtors legislation for its relief or reorganization.
Either party may terminate this Agreement at any time for any reason by providing written notice to the other party indicating such termination.
Exocomm may assign any of its rights or obligations under this Agreement, without the prior express written consent of Licensee.
No failure or delay by either party in exercising any right, power or remedy under this Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy.
If any provision of this Agreement or part thereof is or becomes illegal, invalid or unenforceable in any jurisdiction, the illegality, invalidity or unenforceability of that provision will not affect: (a) the legality, validity or enforceability of the remainder of the provision or remaining provisions of this Agreement, as the case may be, or (b) the legality, validity or enforceability of that provision or part thereof in any other jurisdiction.
Licensee and Exocomm are independent contractors, and nothing herein shall at any time be construed to create the relationship of employer and employee, partners, principal and agent, or joint venturers between Licensee and Exocomm. Exocomm shall have no right or authority, and shall not attempt to enter into any contract, commitment or agreement, otherwise bind Licensee or incur any debt or liability of any nature in the name of or on behalf of Licensee.
Those provisions that by their nature are intended to survive the termination or expiration of this Agreement shall so survive, unless stated otherwise herein.
Exocomm may change the terms and conditions or pricing under this Agreement at any time by posting the changes to "www.exocomm.org/library". Exocomm will use reasonable efforts to notify Licensee, including by way of email, of such changes that will materially affect the scope of the services provided, or of any material price increase. Notwithstanding the foregoing, Licensee accepts responsibility for being fully informed of the changes posted to "www.exocomm.org/library". If Exocomm makes changes that are not acceptable to Licensee, Licensee may terminate the Agreement without charge by giving written notice of cancellation to Exocomm within forty-five (45) days after the date the unacceptable change was posted. If Licensee does not give written notice to Exocomm of such termination within such forty-five (45) day period, Licensee shall be deemed to have accepted the change, effective on the date of its posting. Licensee may not change this Agreement. No statement or representation (oral or written) of any sales agent, distributor, representative or employee of Exocomm made to Licensee can change this Agreement.
Exocomm will not be liable for any delay or failure to perform our obligations if such delay or nonperformance arises in connection with any cause or causes beyond its reasonable control. Such causes shall include, without limitation, any act of God, fire, flood, natural disaster, strike (or other labor dispute), unusually severe weather, vandalism, terrorism, or any act, law regulation or request of any governmental body.
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous agreements, understandings, negotiations, memoranda and representations both written and oral between the parties.
All remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law or in equity.
This Agreement shall be governed by the laws of Ontario, Canada.