DATA AGE MASTER TERMS & CONDITIONS
Updated February 1, 2021
I. End User License Agreement
This LICENSE AGREEMENT is incorporated by reference and forms an integral part of the Purchase Agreement to which it is referenced and linked (the “Purchase Agreement”) and governs the use of the software provided by DATA AGE BUSINESS SYSTEMS, INC. ( hereinafter referred to as “DATA AGE”) to each of its customers (hereinafter referred to as “Licensee”).
A. DATA AGE has developed and is the sole and exclusive owner of the proprietary computer software package and related documentation known as PawnMaster ®, the Software Serial Number for which is set forth in the Purchase Agreement furnished to Licensee (hereinafter collectively referred to as the “Software”), which has been purchased by Licensee pursuant to the Purchase Agreement.
B. Use of the Software by the Licensee identified in the Purchase Agreement and the rights of Licensee is subject to and governed by the terms of this Agreement.
C. DATA AGE consents and agrees to the granting of certain License Rights pertaining to the Software to Licensee, upon and subject to the terms, conditions and limitations as stated in this Agreement.
THEREFORE, in consideration of the payment of the License Fee stated in Article 4, below, and the mutual covenants between the parties stated in this Agreement and the Purchase Agreement, DATA AGE grants to Licensee, and Licensee accepts a personal, non-transferable and non-exclusive right and license to use the Software upon the terms, conditions and limitations which are stated below:
- LICENSE RIGHTS: The rights and entitlements of Licensee under this Agreement include the following:
1.1 The license granted under this Agreement conveys to Licensee ONLY a personal, non-exclusive, non-transferable right and license to use the Software for the term of License which is stated in Article 3, below.
1.2 DATA AGE warrants to Licensee that the Software will substantially perform in the manner described in the Software’s documentation. The warranty and obligation of DATA AGE herein-stated is conditioned upon: (1) the Software being used in connection with proper and compatible hardware and computer system; (2) there having been no alterations or modifications to the Software by persons other than DATA AGE; and (3) there having been no default by Licensee of the terms and conditions of this License, the Purchase Agreement, and any software support, or customer care agreements between the parties concerning the Software licensed herein. EXCEPT AS SPECIFICALLY PROVIDED FOR HEREIN, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR USE.
1.3 DATA AGE will make available to Licensee all standard updates. Custom enhancements and/or improvements to the software will be charged a fee.
1.4 Licensee agrees to advise DATA AGE in writing of any suspected error, malfunction or defect and provide DATA AGE with all relevant information upon request in order that DATA AGE may render the services set forth herein. The License Rights shall not be deemed to include any right of access to or use of DATA AGE’s source codes pertaining to the Software.
- LIMITATIONS: The License Rights granted by DATA AGE to Licensee, as described in Article 1, above, are subject to and limited by the following:
2.1 Licensee acknowledges and agrees that the Software and all information, sources and other matters collectively comprising the License Rights, as described in Article 1, above, are solely and exclusively owned by DATA AGE and shall not be utilized by Licensee for any purpose except as specifically provided for in this Agreement.
2.2 Licensee will not make any alteration or modification to the Software, including any customization or modification of installation parameters, unless first authorized in writing by DATA AGE.
2.3 The Software shall be used by Licensee only at the business location(s) designated in the Purchase Agreement.
2.4 Neither this Agreement nor any License Rights granted hereunder may be assigned by Licensee to any third party, either in whole or in part.
2.5 Licensee shall not cause or permit the Software or any documents, materials or other information comprising the License Rights or otherwise delivered by DATA AGE to Licensee pursuant to this Agreement to be disclosed, sub-licensed, published, released or transferred to any other party, unless first specifically approved in writing, by DATA AGE.
2.6 Licensee shall not cause or permit any reproduction of the Software, unless specifically approved in writing by DATA AGE.
2.7 Licensee shall not cause or permit any use or application of the Software, or of any document, material or other information provided by DATA AGE to Licensee pursuant to this agreement, for any purpose other than that for which such Software, documents, materials and information were designed and intended by DATA AGE as described in the Software’s documentation.
2.8 Licensee shall take all steps necessary to insure that communications with DATA AGE personnel shall be polite, courteous and refrain from profane or abusive language. Failure to do so shall constitute a default of this agreement.
2.9 In the event Licensee is in default of this License Agreement, including the Purchase Agreement, or any Software Support or Customer Care Agreements, or in the event that the License Agreement is otherwise terminated by the parties, Licensee hereby understands and acknowledges DATA AGE’s reserved right to allow the software to deactivate or “time-out”, as appropriate, in which case Licensee agrees to hold DATA AGE harmless from such deactivation occurrence or failure to operate, in accordance with the Limitation of Liability provision of this License Agreement.
- TERM OF LICENSE: This License Agreement and all rights and entitlements conveyed by DATA AGE to Licensee hereunder shall commence and be deemed effective upon the date that the Purchase Agreement is executed by DATA AGE and Licensee, and shall continue until the occurrence of a default under this License Agreement by Licensee, or until otherwise terminated in accordance with the Purchase Agreement, any Exhibit(s) or related Purchase Agreement, Software Support or Customer Care Agreements. A default under this License Agreement shall occur in the event that Licensee shall fail to comply with any term or provision of this License Agreement, the Purchase Agreement or the Exhibits attached hereto, or any Software Support, or Customer Care Agreements between the parties concerning the software licensed herein, and shall fail to cure such default(s) within 20 days from receipt of written notice thereof by DATA AGE. Any notice required under this License Agreement shall be deemed delivered when mailed, by U.S. Mail, to Licensee at the address above stated.
- LICENSE FEE: The fee and consideration to be paid by Licensee to DATA AGE for this License Agreement and all License Rights conveyed hereunder shall be as previously invoiced or as will be invoiced on payment terms. In addition to the foregoing, Licensee will pay any applicable sales and/or use taxes imposed by governmental authority upon the License Fee above stated.
- RELATIONSHIP OF PARTIES: The relationship between DATA AGE and Licensee shall be deemed and considered to be limited to the grant of the specific License Rights herein stated in this License Agreement. Licensee shall not otherwise be deemed to be a franchise, agency, subsidiary or affiliate of DATA AGE unless specifically evidenced, in writing, by and between the parties. The sole and limited responsibilities of DATA AGE shall be to provide the License Rights, which are described in this Agreement, the Purchase Agreement and any Exhibits; and DATA AGE shall not otherwise participate in any business of Licensee.
- RESPONSIBILITIES OF LICENSEE:
6.1 Licensee will timely comply with all terms and provisions of this License Agreement and the Purchase Agreement.
6.2 Licensee will not make any use of the information and materials provided by DATA AGE or make use of the name “DATA AGE” or any derivative thereof, for any unlawful or any improper purpose or in any manner not first specifically approved, in writing, by DATA AGE.
6.3 Licensee agrees to utilize only licensed copies of any third party software to which the DATA AGE Software interfaces, and further agrees to comply with all applicable state and federal rules, statutes and regulations governing its use of Software.
6.4 Licensee shall take such action as may be reasonably necessary to prohibit any violation of the terms and provisions of this License Agreement by the individual members, officers, representatives, agents, or employees of Licensee.
6.5 Licensee hereby acknowledges and confirms that Licensee has determined, based upon the information provided by DATA AGE, that the Software is suitable for the use and application desired by Licensee.
6.6 In the event of any error or apparent defect in the Software, Licensee will provide DATA AGE with reasonable computer time, and at DATA AGE’s request, run a tracer or monitor for the purpose of determining and correcting any error, malfunction or defect, or making other changes requested by Licensee and agreed to by DATA AGE.
6.7 In the event of any error or apparent defect in the Software, Licensee will provide DATA AGE a copy of the data in machine readable or interpreted form deemed necessary or desirable by DATA AGE in order to reproduce the environment in which the Software operated. If DATA AGE determines that there was no error, malfunction or defect in the Software, Licensee shall pay for all time and materials spent by DATA AGE in attempting to determine and correct Licensee’s problems.
6.8 Licensee acknowledges that the Software constitutes a valuable asset and trade secret of DATA AGE and that DATA AGE has an exclusive proprietary right and interest in and to the Software. Licensee agrees to use the Software only as provided in this Agreement and only during the Term of License granted by this Agreement. Licensee agrees to protect the Software, all documents, written materials, codes and other information pertaining to the Software, in any form, from unauthorized disclosure by Licensee’s agents, employees or customers, to any third party.
6.9 Licensee agrees to not hire, solicit for hire or otherwise employ, either on a full-time or part-time basis, directly or indirectly, any employee, agent or independent contractor of DATA AGE during the term of this Agreement and for a period of two years after the termination or cancellation of this Agreement.
6.10 Licensee agrees and consents to be contacted by DATA AGE, and its Agents, employees, attorneys, affiliates, subsequent creditors, loan servicing companies, and third-party collectors through the use of email, and/or telephone calls and/or SMS text messages to Licensee’s cellular, home or work phone numbers of its employee and officers, as well as any other phone number Licensee has provided in conjunction with this Agreement, including the use of automatic telephone dialing systems, auto-dialers, or an artificial or prerecorded voice.
6.11 Licensee agrees that it shall be exclusively responsible for the supervision, management, and control of its use of the Software and/or material, including but not limited to: (i) assuring proper configuration, installation, audit controls, and operating methods, (ii) establishing adequate backup plans based on alternate procedures and/or based on access to qualified technical personnel in the event of any Software malfunction, and (iii) implementing sufficient procedures and checkpoints to satisfy its requirements for security and accuracy of input and output as well as restart and recovery in the event of a malfunction. Licensee agrees that it will take appropriate action with its employees, by agreement or otherwise, to satisfy its obligations under this Agreement with respect to use, copying, modification, and protection and security of Software and material. Licensee shall provide Data Age, in a timely manner, with all such information and assistance as Data Age may reasonably require in order to enable Data Age to provide its services to Licensee hereunder.
6.12 Licensee agrees that it shall be exclusively responsible to review all agreements generated and calculation methods utilized and charges imposed by the software and verify the same are in compliance with Licensee’s local, state and federal laws or those set forth by Licensee’s legal governing body.
- LIMITATION OF LIABILITY:
7.1 DATA AGE MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, AND SHALL NOT BE LIABLE FOR WARRANTIES OF FITNESS OF PURPOSE, COMPLIANCE WITH LOCAL, STATE, FEDERAL OR ANY OTHER GOVERNING BODY REGULATIONS, STATUTES AND RULES RELATING TO THE PAWN SHOP INDUSTRY, MERCHANTABILITY, AND NON-INFRINGEMENT. IN NO EVENT SHALL DATA AGE BE LIABLE FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES FOR ANY REASON WHATSOEVER, INCLUDING AS A RESULT OF ACTS OF GOD, FIRES, VANDALISM, ACCIDENT, MISUSE, PROGRAMMING ERRORS, ENVIRONMENTAL CONDITIONING FAILURES, OR ELECTRICAL LINE NOISE AND POWER FAILURES OR FAILURE OF Licensee TO ADHERE TO DATA AGE’S PROCEDURAL REQUIREMENTS, OR FOR LOST REVENUE, LOSS OF PROFITS, SAVINGS, OR OTHER INDIRECT OR CONTINGENT EVENT-BASED ECONOMIC LOSS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR ANY SERVICES PERFORMED OR SOFTWARE OR EQUIPMENT SUPPLIED HEREUNDER, OR BY THE INABILITY TO USE THE SOFTWARE, ANY LOSS OR INTERRUPTION OF DATA, TECHNOLOGY OR SERVICES, OR FOR ANY BREACH HEREOF, OR FOR ANY DAMAGES CAUSED BY ANY DELAY IN FURNISHING SERVICES UNDER THIS AGREEMENT, EVEN IF DATA AGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. DATA AGE’S AGGREGATE LIABILITY TO LICENSEE FOR DAMAGES FROM ANY AND ALL CAUSES WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR NEGLIGENCE, SHALL BE LIMITED TO THE AMOUNT OF ACTUAL DIRECT DAMAGES INCURRED BY LICENSEE, NOT TO EXCEED THE AMOUNT OF FEES PAID BY LICENSEE TO DATA AGE FOR THE SERVICES DURING THE YEAR IN WHICH THE CAUSE OF ACTION ACCRUED.
7.2 DATA AGE makes no representation or warranty that the Software will comply or be consistent with any Federal, State or local law ordinance, including, without limitation, those governing check cashing, loans, payday loans, the purchase and sale of firearms, pawn, and any financial disclosures or calculations as may be required under any Federal, State or local law or ordinance; and Licensee shall be solely responsible for such determinations. The Software is not certified by the International Organization for Standardization (ISO). Time is of the essence as to performance of all of the Licensee’s obligations hereunder, including the payment of all fees due and owing. Licensee and Data Age agree that the Software or materials are not intended as “Consumer Goods” under Federal or State warranty laws. Licensee acknowledges that data, as stored, is proprietary to DATA AGE. Notwithstanding, Licensee owns the data and has a right to procure its data at any time during the term of this Agreement. Licensee data procurement is subject to service charge and is only eligible for accounts that have been paid in full
- GENERAL PROVISIONS:
8.1. AMENDMENT: This agreement and the Purchase Agreement form one agreement, are entire and not divisible, and shall be construed in accordance with the laws of the State of Florida.
8.2. VENUE: The Venue of any legal proceedings based upon this License Agreement and the rights and responsibilities of Licensee and DATA AGE, hereunder, shall be Pinellas County, Florida.
8.3. GOVERNING LAW: This Agreement shall be construed in accordance with the laws of the State of Florida.
8.4. JURY TRIAL: Each party to this Agreement hereby waives any and all rights to a trial by jury as to any dispute based upon this License Agreement and the relationship of the parties created hereby.
8.5. INJUNCTIVE RELIEF: Licensee agrees that in the event of a breach or threatened breach of the covenants given by Licensee herein, DATA AGE shall be entitled, in addition to any other remedies available to it hereunder or by law, to temporary and permanent injunctive relief restraining Licensee from such breach or threatened breach.
8.6. ATTORNEYS FEES: Should DATA AGE institute legal action, whether at law or in equity, to enforce any provision contained herein, or to claim damages, the prevailing party shall be entitled to receive from the non-prevailing party all costs and reasonable attorneys’ fees, including but not limited to, fees incurred prior to and through trial and continuing through any and all appeals or other legal proceedings related thereto.
8.7 ARBITRATION: Any disputes or claims under this Agreement or its breach shall be submitted to and resolved exclusively by arbitration conducted in accordance with American Arbitration Association rules. One arbitrator appointed under such rules shall conduct arbitration. Arbitration shall exclusively be conducted in Pinellas County, Florida, and the laws of Florida shall be applied. Any decision in arbitration shall be final and binding upon the parties. Judgment may be entered thereon in any court of competent jurisdiction. Notwithstanding the above, DATA AGE may sue in any court of competent jurisdiction for injunctive relief, infringement of its proprietary or intellectual property rights or any claims relating to Licensee’s indemnification obligations to DATA AGE under this Agreement.
8.8 ELECTRONIC/FACSIMILE SIGNATURES: The Purchase Agreement may be executed in counterparts, each of which shall be deemed an original, and which together shall be deemed one and the same Agreement which are incorporated into this Agreement. Electronic acceptance via e-mail or facsimile (e.g., by digital signature and/or electronic reproduction of a handwritten signature) or by accepting on-line by clicking the appropriate box will have the same legal effect as original signatures and are binding on the parties.
8.9 NOTICES: Where notice is required to be provided to a party under this Agreement, such notice shall be deemed delivered (i) upon receipt (or refusal of delivery) by the receiving party, sent via United States Mail, first class mail, certified or return receipt requested, postage prepaid; or (ii) one (1) day following delivery when sent by FedEx, or other nationally recognized overnight carrier, to the addresses set forth on the Purchase Agreement, or to such other address(es) as the parties may designate from time to time. Notice may be sent by electronic mail (“email”) to DATA AGE by E-mail: Sales@dataage.com and copy by FAX: 727-582-9666, and to the Client at such additional contact information shown on the Purchase Agreement, as long as written notice is also simultaneously provided to the receiving party by one of the other methods set forth above in this Section.
8.10 MISCELLANEOUS: This Agreement and the Purchase Agreement replace and supersede any previous agreement between the parties and constitutes the entire Agreement between the parties relative to the subject matter thereof. This Agreement replaces any prior PawnMaster End User License Agreement and acceptance of this Agreement is acceptance that all Licenses previously issued and support terms of these aforementioned Agreements are null and void and will now be superseded by this PawnMaster End User License Agreement per the terms and conditions of this Agreement and Purchase Agreement. The term of this Agreement commences as of the date of this agreement going forward and is not to be construed as continuing the term of any prior Agreements aforementioned that are now null and void. Licensee’s acceptance of future delivery of any Software or material from DATA AGE is conclusive evidence of its agreement that the subscription for such software and material is governed by the terms of this Agreement, the Purchase Agreement and any Amendments made to it. Such Amendments may occur on-line and be accepted by clicking the appropriate box upon PawnMaster startup. Licensee’s remedies in this Agreement are exclusive. Any or all of DATA AGE’S rights or obligations herein may be assigned by DATA AGE without notice to Licensee and without Licensee’s consent, and may be exercised thereafter by the assignee of such rights or obligations, and such assignee shall attorn to all of the rights and obligations of DATA AGE as set forth herein. This agreement is subject to acceptance by DATA AGE at its corporate office. This Agreement may not be assigned or transferred by Licensee without the prior written consent of DATA AGE, which shall not be unreasonably withheld. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their legal representatives, and permitted successors and assigns. No amendment or modification to this Agreement shall be effective unless such amendment or modification is in writing, specifically references this Agreement, and is signed by a designated and authorized representative of each party, or accepted on-line by clicking the appropriate box. Time is of the essence as to all of the Licensee performance obligations hereunder including the payment of all fees due and owing. If any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, illegibility or unenforceability so that the remainder of that provision and all remaining provisions of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law. The provisions contained in this Agreement that by their context are intended to survive termination or expiration of this Agreement shall survive such termination or expiration. The parties have entered into this Agreement solely for their own benefit. They intend no third party to be able to rely upon or enforce this Agreement or any part of this Agreement. It is understood and agreed that no usage of trade or other regular practice or method of dealing between the parties to this Agreement shall be used to modify, interpret, supplement, or alter in any manner the terms of this Agreement and the Purchase Agreement. Each party is an independent contractor of the other, and neither is an employee, partner or joint venture of the other.
II. Subscriber License & Professional Services Agreement
This LICENSE AND PROFESSIONAL SERVICES AGREEMENT is incorporated by reference and forms an integral part of the Purchase Agreement to which it is referenced and linked (the “Purchase Agreement”) and governs the use certain software and customer services provided other than (in addition to?) the PawnMaster® software described in Section I above provided by DATA AGE BUSINESS SYSTEMS, INC. ( hereinafter referred to as “DATA AGE”) to certain of its customers who elect to purchase such additional products and services that are set forth in the Purchase Agreement (hereinafter referred to as “Client”).
In consideration for the provision of DATA AGE’s Service’s described in the aforementioned the Purchase Agreement and for the use of the licensed application on the terms set forth in this Agreement, DATA AGE and Client agree as follows:
1. Services. DATA AGE shall provide the services and additional products set forth in said Purchase Agreement.
2. Term of Agreement. The term of this Agreement shall be as set forth in the Purchase Agreement.
a. Fees for services are set forth in the Purchase Agreement.
b. Taxes: Client shall pay all sales, use, gross receipts, GST, value-added, personal property or other tax or levy imposed on the services provided hereunder. All prices quoted are net of taxes.
c. Client will pay all one-time and setup fees prior to Products and Services being deployed as set forth in the Purchase Agreement.
d. Client will pay a one-month security fee, if applicable, equal to the monthly fee set forth on the coinciding Purchase Agreement and any Exhibit(s) thereto prior to Products and Services being deployed.
e. Client will be invoiced monthly, and payment shall be due the following month. Interest charges of 1.50% per month (or the highest rate permissible under applicable law, if less) will accrue daily on all amounts not received when due. In addition, Data Age shall be entitled to block Client’s access to the services set forth in the Purchase Agreement and any Exhibit(s) thereto with or without terminating this Agreement or affecting Client’s obligation to make monthly payments under the Agreement if Client is more than ten (10) days overdue on any payments. Under no circumstances shall Client have any right to offset its monthly payments to Data Age.
4. License. DATA AGE hereby grants to Client a limited term, non-exclusive, non-transferable, license to access and use the Product and Services, subject to the restrictions set forth in this Agreement the Purchase Agreement and its Exhibits, if any.
5. Authorized Use. The Product may be used by Client and its employees, agents and contractors for the processing of Client Data at the location(s) shown in the Purchase Agreement. Client shall not, directly or indirectly, use, copy, sublicense, rent, assign, transfer, modify, create derivative works, reverse engineer, decompile, disassemble, translate or apply any process to the Product and Services in order to ascertain, derive or appropriate the source code.
6. Indemnification. DATA AGE, at its expense, shall defend or settle any threat, claim, and suit or proceedings against Client arising from or alleging that the software or services utilized or provided by Data Age constitutes an infringement, misappropriation or violation of the intellectual property rights of any third party. Client shall give notice of and cooperate with the defense of any such claim, suit or proceeding, including any appeals, negations and settlement.
Client covenants and agrees to indemnify, defend, and hold harmless Data Age and its officers, directors, employees, stockholders, assigns, successors and affiliates (“Indemnified Parties“) from, against and in respect of all liabilities, losses, claims, damages, causes of action, lawsuits, administrative proceedings, demands, assessments, adjustments, judgments, settlement payments, deficiencies, penalties, fines, interest (including interest from the date of such damage) and costs and expenses (including without limitation reasonable attorneys’ fees) (collectively, “Damages“) sustained, in connection with, resulting from or arising directly or indirectly out of (i) the use by Client of the Services or the use by any entity or person to whom Client has granted access to the Services or (ii) Client’s violation of any of the Terms of this Agreement and any other agreement between Client and Data Age. The remedies set forth in this Section are cumulative and shall not restrict or affect any other remedies that may be available to the Indemnified Parties.
7. Revisions. DATA AGE may from time to time revise or update the Product, provided, however, that the revisions or updates will not have an adverse effect on the functionality of the Product.
8. Availability of Services. The Product and Services shall be available as set forth in said Purchase Agreement and any Exhibit(s) thereto.
9. Ownership of Intellectual Property.
a. The software provided in connection with this Agreement, including without any limitation, any and all source code, object code, materials, designs, integrations, connectors, web services, plans, techniques, methods, inventions, forms, processes and any derivatives, modifications or enhancements thereto, is and shall remain the sole and exclusive property of DATA AGE or its licensors and DATA AGE or its licensors as the case may be shall own and retain all right, title and interest in and to the foregoing under copyright, trade secret, trademark, patent and other intellectual property laws.
b. “Client Data” consists of information used in populating the database, which is uploaded, posted, transmitted or otherwise disseminated by Client to DATA AGE in connection with the Product or Services. Client Data entered into the Product through the Product and Services shall be free of software traps, viruses, worms, devices or code which would disable or disrupt the operation of the Product, or cause the Product to cease functioning.
10. Confidentiality. Each party hereby acknowledges that it may be exposed to confidential and proprietary information belonging to the other party or relating to its affairs. Accordingly, each party hereto shall hold in confidence and not (except for purposes of its performance under this Agreement) use or disclose any Confidential Information as hereinafter defined, without the express, prior written consent of a duly authorized representative of the other party. DATA AGE’s “Confidential Information” shall mean information or material which DATA AGE (i) believes not to be generally known in its industry and which DATA AGE takes efforts to maintain in secrecy in its business and (ii) which DATA AGE designates as Confidential Information. Client’s “Confidential Information” shall mean specific shop information or material referring to Client’s clientele and which Client designates as Confidential Information. DATA AGE’s or Client’s Confidential Information does not include information which is now or which hereafter becomes generally known to the industry through no fault of the receiving party or which is later published or generally disclosed to the public by the disclosing party; or (iii) information which is independently developed by the receiving party, or lawfully acquired by it from a third party without any obligation of confidentiality.
11. Passwords. Client shall be provided passwords, if applicable, for access to the Product and Services hosted on DATA AGE’s servers. Such passwords shall exclusively be used by Client and its employees, agents and contractors and shall not be disclosed to or provided to any other person or entity. Any unauthorized disclosure or dissemination of passwords by Client shall be deemed a material breach of this Agreement and shall be a basis for termination of this Agreement. Passwords may be changed by DATA AGE from time to time for security purposes.
12. Technology. DATA AGE is not responsible for the availability or dependability of infrastructure services such as routers, Internet connect or other network components. Client is responsible for ISP connections, data transfers, updates and Internet access.
a. The Agreement may be terminated for cause by the non-breaching party where a breach of this Agreement is not cured within ten (10) days of written notice
b. Notwithstanding the foregoing, Data Age may terminate this Agreement immediately upon giving written notice of termination to Client if Client commits a material breach of any obligation to Data Age under this or any other agreement between the parties, or if Data Age reasonably believes that Client’s use of data violates any applicable law or regulation, this Agreement, or may result in a risk to public safety, including but not limited to the safety of private individuals.
c. If Client is in Default, including termination of this Agreement other than as permitted by its terms, Client shall immediately pay DATA AGE in one lump sum the monthly fee(s) for the portion of the first year term remaining immediately prior to such Default; or if after the first year term, in one lump sum equal to three times the monthly fee(s). For purposes of this Agreement, Client shall be deemed in “Default” in the event Client becomes the subject of a voluntary or involuntary bankruptcy, insolvency, reorganization or liquidation proceeding; makes an assignment for the benefit of creditors; admits in writing its inability to pay debts when due; misuses passwords or fails within 10 days after receiving written notice to remedy any breach of this Agreement, including non-payment.
d. Upon termination of this Agreement by either party, Client shall immediately delete and destroy all program material or data maintained on a permanent storage drive.
14. Notices. Where notice is required to be provided to a party under this Agreement, such notice shall be deemed delivered (i) upon receipt (or refusal of delivery) by the receiving party, sent via United States Mail, first class mail, certified or return receipt requested, postage prepaid; or (ii) one (1) day following delivery when sent by FedEx, or other nationally recognized overnight carrier, to the addresses set forth on the Purchase Agreement, or to such other address(es) as the parties may designate from time to time. Notice may be sent by electronic mail (“email”) to DATA AGE by E-mail: Sales@dataage.com and copy by FAX: 727-582-9666, and to the Client at such additional contact information shown on the Purchase Agreement, as long as written notice is also simultaneously provided to the receiving party by one of the other methods set forth above in this Section.
15. Limitation of Remedies. CLIENT’S REMEDY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT, WHETHER ARISING OUT OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY, OR OTHERWISE, SHALL BE LIMITED TO THE FEES ACTUALLY PAID BY CLIENT TO DATA AGE HEREUNDER. WITHOUT LIMITING THE FOREGOING, DATA AGE SHALL HAVE NO LIABILITY FOR CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES OF WHATEVER NATURE.
16. DATA AGE Representations. DATA AGE represents that it has all requisite licenses for third party software used in performance of the services.
17. Client Warranties. Client represents and warrants that (i) it has authority to enter into this Agreement and to be bound hereto and (ii) it materially complies at all times with applicable laws in connection with its business operations.
18. Warranty Disclaimer. DATA AGE HEREBY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE. DUE TO FACTORS AFFECTING COMPUTERIZED COMMUNICATIONS WHICH ARE BEYOND DATA AGE’S REASONABLE CONTROL, NO GUARANTEE OF PERFORMANCE IS MADE OR IMPLIED FOR ANY ONLINE USE OF THE LICENSED MATERIAL THROUGH THE INTERNET OR OTHER TRANSMISSION MODES. DATA AGE DOES NOT WARRANT THAT THE SITE WILL BE AVAILABLE AT ALL TIMES. DATA AGE DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM THE USERS’ SERVERS AND THE INTERNET; DATA AGE DISCLAIMS ANY AND ALL LIABILITY RELATING TO A FAILURE OF ITS PRODUCT AND/OR SERVICE AS WELL AS SUCH FAILURES RESULTING FROM A DISRUPTION IN THE INTERNET CONNECTION BETWEEN THE USERS AND THEIR INTERNET SERVICE PROVIDERS.
CLIENT FURTHER ACKNOWLEDGES THAT ALL TEXTING SERVICES MADE AVAILABLE BY DATA AGE ARE OUTSOURCED THROUGH A THIRD PARTY PROVIDER, AND CLIENT AGREES THAT DATA AGE SHALL NOT BE LIABLE FOR ANY DAMAGES INCURRED BY CLIENT OR OTHERS ARISING OUT THE ACTUAL OR ALLEGED FAILURE OF ANY TEXT TRANSMISSION TO COMPLY WITH THE RULES AND REGULATIONS PROMULGATED BY THE FEDERAL TRADE COMMISSION, FEDERAL COMMUNICATIONS COMMISSION AND ANY OTHER GOVERNMENTAL ENTITIES, INCLUDING BUT NOT LIMITED TO THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. §227, (THE “TCPA”), THE TELEMARKETING AND CONSUMER FRAUD AND ABUSE PROTECTION ACT, OR THE CAN-SPAM ACT, EACH AS AMENDED FROM TIME TO TIME, REGARDLESS OF WHETHER CAUSED BY THE THIRD PARTY PROVIDER OR WHICH RESULTED FROM ANY MODIFICATIONS MADE OR EFFECTED BY THE CLIENT TO THE SOFTWARE SYSTEM TEXTING SETUP, OR FOR ANY REASON. CLIENT ALSO BEARS THE RISK OF LOSS FOR ANY SUCH MODIFICATIONS OR CHANGES MADE BY OR AT THE CLIENT’S DIRECTION AND AGREES TO INDEMNIFY AND HOLD DATA AGE HARMLESS THEREFROM.
19. Relationship of Parties. Each party and its personnel are independent contractors in relation to the other with respect to all matters arising under this Agreement. Nothing contained in this Agreement shall be deemed to create or construed as creating a joint venture or partnership between the Client and DATA AGE. Neither party is, by virtue of this Agreement or otherwise, authorized as an agent or legal representative of the other party. Neither party is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other party or to bind such other party in any manner. Further, it is not the intention of this Agreement or of the parties hereto to confer a third party beneficiary right of action upon any third party or entity, and nothing in this Agreement shall be construed so as to confer upon any third party or entity other than the parties a right of action under this Agreement.
20. No Assignment. This Agreement may not be involuntarily assigned or assigned by operation of law, and Client shall not assign or transfer this Agreement or any of its rights, duties or obligations under it, without the prior written consent of Data Age, which consent may be unreasonably withheld. In the event Client changes its trade name or store location address, Client shall pay Data Age a $75.00 administrative fee.
21. Entire Agreement. This Agreement, the Purchase Agreement, along with any Exhibit(s) thereto and the End User License Agreement constitute the entire understanding and agreement between the parties hereto regarding professional services and supersedes any and all prior or contemporaneous representations, understandings and agreements between the Client and DATA AGE with respect to its subject matter. No usage of trade or custom and practice within the industry, and no regular practice or method of dealing between the parties, shall be used to modify, supplement or alter in any manner the express terms of this Agreement or any part of it.
22. Forum and Jurisdiction. This Agreement was entered into in the State of Florida, and the laws and judicial decisions of the State of Florida shall govern its validity, construction, interpretation and legal effect without regard to principals of conflicts of law. Any action at law or in equity arising under this Agreement shall be filed only in Pinellas County, Florida. Each party hereby consents and submits to the personal jurisdiction of such courts for the purposes of litigating any such action.
23. Attorneys’ Fees. In any action to enforce this Agreement, the prevailing party shall be entitled to recover its attorney’s fees and costs, including fees and costs on appeal.
24. Arbitration. Any disputes or claims under this Agreement or its breach shall be submitted to and resolved exclusively by arbitration conducted in accordance with American Arbitration Association rules. One arbitrator appointed under such rules shall conduct arbitration. Arbitration shall exclusively be conducted in Pinellas County, Florida, and the laws of Florida shall be applied. Any decision in arbitration shall be final and binding upon the parties. Judgment may be entered thereon in any court of competent jurisdiction. Notwithstanding the above, DATA AGE may sue in any court of competent jurisdiction for injunctive relief, infringement of its proprietary or intellectual property rights or any claims relating to Client’s indemnification obligations to DATA AGE under this Agreement.
25. Force Majeure. Other than Client’s obligation to pay fees, neither the Client nor DATA AGE shall be deemed in default if its performance or obligations hereunder are delayed or become impossible or impractical by reason of any act of God, war, fire, earthquake, hurricane, labor dispute, accident, civil commotion, epidemic, act of government or government agency or officers, or any other cause beyond such party’s control.
26. Electronic/Facsimile Signatures. The Purchase Agreement may be executed in counterparts, each of which shall be deemed an original, and which together shall be deemed one and the same Agreement which are incorporated into this Agreement. Electronic acceptance via e-mail or facsimile (e.g., by digital signature and/or electronic reproduction of a handwritten signature) or by accepting on-line by clicking the appropriate box will have the same legal effect as original signatures and are binding on the parties.