This agreement between Talk-A-Phone, LLC and Licensee (the “Agreement) consists of these Terms and Conditions, the terms stated on the Front Sheet of this Agreement, and all exhibits and attachments hereto. “Effective Date,” “Parties,” “Talk-A-Phone,” “Licensee,” “Licensed Site,” “Initial Term,” “Initial License Fee,” “Initial Maintenance Fee,” “Terms and Conditions” and “Front Sheet” shall have the meanings set forth on the face of the Agreement, and the terms used on face of the Agreement and defined herein shall have the meanings set forth these Terms and Conditions. In the event of a conflict between the terms and conditions on the face of this Agreement and these Terms and Conditions, these Terms and Conditions shall control.
1. Implementation and Acceptance
- Talk-A-Phone shall use commercially reasonable efforts to implement the Talk-A-Phone Software Product consistent with the specifications and statement of work set forth in Exhibit A (the “Specifications”). In the event that Licensee desires a change to the Specifications, it shall submit a written change request, and Licensee and Talk-A-Phone shall work together in good faith to reach agreement on any necessary amendments to the Specifications, including any necessary changes to the Initial License Fee. The Specifications may be changed only in writing executed by both Licensee and Talk-A-Phone and are subject to modification fees, outlined in Exhibit B and incorporated herein by reference.
- Licensee acknowledges and agrees that Talk-A-Phone shall own all right, title and interest in and to the Talk-A-Phone Software System and all enhancements, upgrades and modifications thereto, including all patent rights, copyrights, trademarks, know-how, trade secrets and other intellectual property rights, and Licensee agrees and does hereby assign to Talk-A-Phone any such rights that it has or may at any time acquire in or to the Talk-A-Phone Software System or any part thereof.
- Licensee acknowledges and agrees that Talk-A-Phone is in the business of providing software and services to a variety of customers and clients, including clients that may be in competition with Licensee, that Talk-A-Phone will continue such activities, and that Talk-A-Phone may license third parties to use the Talk-A-Phone Software System on such terms and conditions as it deems appropriate in its sole discretion.
2. Grant of License
- Upon Acceptance and subject to payment of the License Fee (including the Initial License Fee) and compliance with the other terms and conditions of this Agreement, Talk-A-Phone grants Licensee a limited, non- exclusive, non-transferrable right and license to remotely access and use the Talk-A-Phone Software System and the user and instruction manuals applicable thereto (the “Documentation”) in object code form only solely for the Authorized Purpose (the “License”). Licensee shall be solely responsible for ensuring that it has the appropriate hardware, software and network access necessary to remotely access and use the Talk-A-Phone Software System as made available to IT by Talk-A-Phone.
- Nothing in this Agreement confers on the Licensee any right, title or interest in or to any of Talk-A-Phone’s or any third party’s intellectual property rights, whether in patent, copyright, trademark, trade secret or otherwise, in or to the Talk-A-Phone Software System, the Documentation, storage or print media or any other tangible or intangible product or service provided to Licensee by or on behalf of Talk-A-Phone.
- Licensee shall not: (i) permit any third party to access or use the Talk-A-Phone Software System on its behalf of or for the benefit of any third party except as expressly permitted in Section 3; (ii) modify, decompile, disassemble, reverse engineer or translate the source code or other part of the Talk-A-Phone Software System; (iii) create derivative works based on or using the Talk-A-Phone Software System; or, (iv) sell, lease, license, sublicense, encumber or otherwise deal with the Talk-A-Phone Software System. Licensee shall promptly notify Talk-A-Phone in writing if it becomes aware of any unauthorized use of the Talk-A-Phone Software System or Documentation by any person or entity.
3. Access and Use
- Following Acceptance and subject to Licensee’s payment of the all fees set forth herein, Talk-A-Phone will host and provide Licensee with remote access to the Talk-A-Phone Software Product. Licensee (and anyone acting for or on its behalf or with its permission) only may access and use the Talk-A-Phone Software System using the remote access facilities designated and expressly made available to Licensee by Talk-A-Phone for such purpose.
- Licensee’s right to access and use the Talk-A-Phone Software System is expressly limited to supplementing (but not replacing) Licensee’s other safety and security measures at the Licensed Site (the “Authorized Purpose”). Licensee acknowledges and agrees that, as between it and Talk-A-Phone, it alone has sole responsibility for providing all necessary safety and security measures at the Licensed Site and that such responsibility includes determining whether the Talk-A-Phone Software System is (and at all times continues to be) useful and appropriate for such purposes. Licensee (and anyone acting for or on its behalf or with its permission including Permitted Users) shall not access, use or otherwise exploit any other features or functionality of the Talk-A-Phone Software System or any information stored within the Talk-A-Phone Software System to which it may have access for any other purpose, and may not access or use the Talk-A-Phone Software System at or for the benefit of any third party or at any location or facility other than the Licensed Site.
- Licensee may permit its employees, contractors and agents with a bona fide Authorized Purpose to access and use the Talk-A-Phone Software System using the mobile application made available for such use by Talk-A-Phone who agree to access and use the Talk-A-Phone Software System subject to this Agreement and any applicable end-user license agreements (“Permitted Users”). Licensee shall have sole responsibility maintaining the confidentiality of all login and usernames and all related passwords and other access control information associated with its Permitted Users, and shall be solely responsible for all access and use of the Talk-A-Phone Software System by Permitted Users regardless of whether such access or use was authorized, intended or requested by or on behalf of Licensee shall immediately report to Talk-A-Phone any actual or apparent unauthorized use or access of the Talk-A-Phone Software System by a Permitted User or any other third party as soon as Licensee reasonably becomes aware that an unauthorized access or use of the Talk-A-Phone Software System may have occurred.
- Licensee shall be solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness, ownership and right to use any and all information and materials recorded, entered, transmitted, or otherwise submitted to the Talk-A-Phone Software System by or on its behalf (“Licensee Information”), and Licensee shall be solely responsible for monitoring the Talk-A-Phone Software System and responding to all Licensee Information. Licensee acknowledges that the Talk-A-Phone Software System depends on hardware, software and other technology and factors over which Talk-A-Phone has little or no control, including cellular telephones of various makes and models and with varying software that may interact or interfere with the proper functioning of the Talk-A-Phone Software System, wired and wireless communications networks including the cellular networks of various carriers, and Global Positioning System (“GPS”) functionality. Licensee further acknowledges that the ability of the Talk-A-Phone Software System to function may be limited in whole or in part based on factors that Talk-A-Phone cannot control, including software and hardware malfunctions, network unavailability, outages and dead zones, and the availability of GPS signals and other location information.
- Licensee acknowledges that electronic communications may be accessed by unauthorized parties when transmitted across the Internet, network communication facilities, telephones or other electronic means and that Talk-A-Phone shall not be responsible for any Licensee Information transmitted or otherwise submitted by Licensee that is lost, altered, intercepted or stored without authorization during the transmission or submission of such information using networks that are not owned and operated by Talk-A-Phone.
- Talk-A-Phone shall have access to Licensee Information, and Licensee shall not take any action to impede, block, encrypt or otherwise withhold Licensee Information from Talk-A-Phone. Notwithstanding the foregoing, Talk-A-Phone takes no responsibility for any Licensee Information created or accessible on or through the Talk-A-Phone Software System. Talk-A-Phone is not obligated to monitor or exercise any control over any Licensee Information, but reserves the right to do so. In the event that Talk-A-Phone becomes aware that any Licensee Information may violate the terms of this Agreement or, in the opinion of Talk-A-Phone, risks exposing Talk-A-Phone to civil or criminal liability, Talk-A-Phone reserves the right to block access to such Licensee Information, disclose such information to appropriate legal authorities, and suspend or terminate access to the Talk-A-Phone Software System. Talk-A-Phone further reserves the right to cooperate with legal authorities and third parties in the investigation of any alleged wrongdoing.
4. Warranty and Liability
- Licensee acknowledges that the Talk-A-Phone Software System has not been prepared to meet Licensee’s individual requirements, whether or not such requirements are set out in any part of this Agreement or otherwise have been communicated to Talk-A-Phone, and that Licensee has sole responsibility to ensure that the Talk-A-Phone Software System meets its requirements. Talk-A-Phone shall not be liable for any failure of the Talk-A-Phone Software System to provide any facility or function not identified in the Specifications.
- EXCEPT AS SET FORTH IN THIS SECTION 5, THE Talk-A-Phone SOFTWARE SYSTEM, THE DOCUMENTATION AND ANY MATERIALS OR SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS-IS” AND Talk-A-Phone MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT THERETO. SPECIFICALLY, Talk-A-Phone DOES NOT WARRANT THAT THE Talk-A-Phone SOFTWARE SYSTEM WILL BE ERROR OR DEFECT FREE OR WILL PERFORM OR BE ACCESSIBLE IN AN UNINTERRUPTED TO THE GREATEST EXTENT ALLOWABLE BY LAW, Talk-A-Phone DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- In the event of any infringement of any third party’s intellectual property rights due to Licensee’s use of the Talk-A-Phone Software System in accordance with the terms and conditions of this Agreement, Talk-A-Phone shall, at its own expense and option, (i) modify or replace the Talk-A-Phone Software System or any infringing part thereof with a compatible, functionally equivalent and non-infringing software product, or (ii) secure the right of Licensee to continue using the relevant Talk-A-Phone Software System. Should options (i) or (ii) not be reasonably available within thirty (30) days of the notification of the infringement to Talk-A-Phone, Talk-A-Phone may terminate this Agreement with respect to the relevant Talk-A-Phone Software System. In such circumstances, Talk-A-Phone shall be liable only to reimburse to Licensee the fees actually paid by Licensee relevant Talk-A-Phone Software system less depreciation calculated on a five-year straight-line basis.
- If Talk-A-Phone fails to comply with its obligations under this Agreement, its maximum aggregate liability, whether in contract, tort or any other form of liability, for damages or loss, howsoever arising or caused, shall be limited to a sum equal to the amount of the fees actually paid by Licensee. In no event will Talk-A-Phone be liable for any loss of profits, loss of use, business interruption, loss of data, cost of cover or any indirect, special, incidental or consequential damages of any kind in connection with or arising out of the furnishing, performance or use of the Talk-A-Phone Software System or Maintenance or any services performed hereunder or any delay in delivery or furnishing the Talk-A-Phone Software System or Maintenance, whether contract, tort or under any other legal or equitable theory.