BY AGREEING TO A DOCUMENT INCORPORATING THESE LICENSE TERMS AND CONDITIONS (“THE TERMS”) (AN “ORDERING DOCUMENT”) UNBXD AND LICENSEE AGREE THAT THESE TERMS SHALL GOVERN THE RELATIONSHIP BETWEEN THE PARTIES AS TO ANY UNBXD PRODUCTS OR SERVICES PROVIDED OR TO BE PROVIDED TO LICENSEE AS SET FORTH IN SUCH ORDERING DOCUMENT. AS TO ANY PARTICULAR ORDERING DOCUMENT, THE ORDERING DOCUMENT, THE SERVICES DEFINITIONS AND SERVICE-SPECIFIC TERMS AND CONDITIONS, AND THESE TERMS TOGETHER CONSTITUTE THE AGREEMENT OF THE PARTIES AND ARE REFERRED TO COLLECTIVELY HEREIN AS THE “AGREEMENT.” IN THE EVENT OF ANY CONFLICT BETWEEN THE ORDERING DOCUMENT AND THESE TERMS, THESE TERMS SHALL PREVAIL UNLESS THE ORDERING DOCUMENT EXPRESSLY PROVIDES THAT IT IS MODIFYING THESE TERMS WITH RESPECT TO SUCH AGREEMENT.
“Agreement” means this customer agreement, including sales order form, all Statements of Work, Sales Order Form, Ordering document, Service Plan SLA and any other agreement relating to the Services entered into by UNBXD and the Customer; “Customer” means the Party subscribing to the Service Plan; “Customer’s Website” means the website operated by the Customer in respect of which the Platform is being provided; “Contract Date” means the date on which the Parties duly execute this Agreement; “Fees” means the fees payable by the Customer to UNBXD; “Platform” means the UNBXD SmartEngage™ Platform; “Service Plan” means the package of services provided by UNBXD as set in the Sales Order Form and Service Plan SLA and as may otherwise be agreed by UNBXD and the Customer from time to time; “Services” means the services offered by UNBXD to the Customer pursuant to the subscribed Service Plan, including the access to and use of the Platform.
2. SUBSCRIPTION, ROLE AND RESPONSIBILITIES OF THE PARTIES:
1. UNBXD, directly or through an affiliate, agrees to provide to Licensee the products and/or services set forth in the Ordering Document (the “Services”). The Services may include information (the “Licensed Materials”), access to and/or use of software or other technology, or other services including premium support. Specific Services may be defined by and are subject to the Services Definitions and Service-Specific Terms and Conditions included with the Ordering Document
2.On subscription to a Service Plan and creation of account by the Customer, UNBXD shall provide the Customer a non-exclusive, non-transferable, non-sublicensable, worldwide, revocable license to use and access the Platform, and shall provide Services as per the Service Plan subscribed to by the Customer;
3. The Customer shall upload the catalog data from the Customer’s Website onto the Platform. Such data shall be categorized, indexed, and optimized by UNBXD;
4. The Services will be provided as they exist and are updated and amended throughout the Term. Information provided as part of any Licensed Materials may be updated on an ongoing basis and provided according to the criteria used to define the scope of the subscribed Services. Licensee understands and acknowledges that the contents of Licensed Materials will change over time as the data is updated, and that at any given time it has a right to access and use the data to which it is subscribed as it exists at that time. Certain portions of the Services may be provided by UNBXD’s third-party licensors, and UNBXD’s ability to provide such information may be subject to the willingness of such licensors to continue to contract with UNBXD. Features and functions of the UNBXD Technology are provided “as is” and as they may be modified, supplemented, or removed from time to time in UNBXD’s sole discretion. UNBXD shall have no liability to Licensee for any modification to any Service, provided that the product or service provided substantially conforms to the description in the Ordering Document.
5. UNBXD shall ensure that the Platform is available a minimum of 99.95% (ninety nine point nine five zero percent) of the time.
6. The Services are intended to be used by the Customer for its internal business purposes only and the Customer shall be liable for any inappropriate, illegal, fraudulent, or misleading use of the Services;
7. Both parties shall take all reasonable measures to avoid any unauthorized or fraudulent use of the Services.
8. The Customer shall not use the Platform for the following acts:
a. to transmit, distribute or store any material, including any material that may be harmful to computer systems (such as viruses, worms, Trojans, or password-cracking programs), that may adversely affect the Services or other customers.
b. in any manner that would violate the intellectual property rights of UNBXD or any third party;
c.to transmit any unsolicited email messages, or use any other service to send such unsolicited email messages (i) to promote the Customer’s Website; (ii) to harass or annoy; (iii) containing malicious data or software, (iii) containing forged TCP/IP packet header information, or (iv) addressed to people who have clearly indicated that they do not wish to receive any emails.
9.The Customer hereby grants UNBXD the right to access, collect, track and use user and user-behaviour data through the Platform, Services and Customer’s websites for (i) performing the Services pursuant to this Agreement, and (ii) developing and providing UNBXD’s products and services, and conducting analytics with respect to the Platform, provided that for the purposes of this clause (ii), UNBXD will ensure that such data is used on an aggregated and anonymized basis, and shall not identify the Customer or its actual or prospective customers, or disclose any Customer Confidential Information in violation of its obligations hereunder.
10. The Customer shall not::
a.license, sub-license, rent, loan, sell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Platform or Services, except as necessary to use the Platform and Services as permitted under this Agreement.
b.modify, reverse engineer, decompile, disassemble, make derivative works based on the Platform or any part thereof (including the Platform’s software), or otherwise derive or attempt to derive the source code of the Platform’s software, or access the Platform for any such purposes; or
c.remove or modify any trademarks, trade names, service marks, service names, logos or brands, or copyright or other proprietary notices on the Platform or Platform’s software, or add any other markings or notices to the Platform or Platform’s software.
PAYMENT OF FEES:
The Customer shall pay Fees, upon receipt of invoice or notification from UNBXD, through an agreed mode of payment within 30 days. In case of delay or non-payment of Fees, the Customer shall be liable to pay interest at the rate of 10% (ten per cent) on the unpaid amounts from the due date till the date on which the entire amount is paid. Additionally, UNBXD may suspend its obligations under this Agreement till all undisputed amounts due from the Customer are paid.
INTELLECTUAL PROPERTY, CONFIDENTIALITY AND WARRANTIES
1.All intellectual property rights in and title to the Platform, logo and any other software used in the provision of the Services by UNBXD, shall remain with and owned by UNBXD. All intellectual property rights in and title to the Customer’s Website and data contained therein shall remain with and owned by the Customer. It is expressly understood by the Parties that this Agreement does not transfer any ownership or proprietary interest in any portion of the Services provided pursuant to this Agreement or to the Customer’s Website or data contained therein.
2.Any information that a receiving Party knows or has reason to know is confidential or proprietary (due to the nature of disclosure) is “Confidential Information”. The Parties understand that all Confidential Information exchanged between the Parties in connection with the Services, whether before or after the Contract Date, shall be received in strict confidence and will be used only for purposes of this Agreement. Any disclosure of Confidential Information to any other persons shall be subject to the condition that (i) such persons are bound by similar obligations of use and confidentiality as under this Agreement, and (ii) the disclosure is necessary for the exercise of its rights and performance of its obligations under this Agreement.
3.The parties represent and warrant that they have the authority to enter into this Agreement.
4.UNBXD represents and warrants that (i) it either owns fully and outright its intellectual property for performing the Services, and/or possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder and to grant the licenses granted by it under this Agreement and (ii) the Services, as used by the Customer in accordance with this Agreement, does not, and shall not, infringe, violate or misappropriate any third party’s rights.
TERM AND TERMINATION
TERM AND TERMINATION: This Agreement shall commence on the Contract Date and shall continue to remain in full force and effect unless terminated by the Parties in accordance with this Agreement. This Agreement may be terminated (i) by the mutual consent of both Parties in writing; (ii) by the Customer at the end of the then current term as specified in –Ordering Document, after giving UNBXD prior notice of 90 (ninety) days prior to expiry of that term;; (iii) by a non-breaching party for breach of the provisions of this Agreement by the other party, which breach is not rectified by the breaching party within 30 (thirty) days of being notified of such breach; or (iv) by the Customer due to UNBXD’s failure to meet the Service Level Agreement for Services Availability for 3 (three) consecutive months.
A Party will not be liable to the other Party for any delay or failure to perform any of its obligations under this Agreement due to any circumstances beyond such Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, failures in telecommunications, internet, internet service provider or hosting facilities, power shortages and denial of service attacks (each, a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the Party claiming the Force Majeure Event will promptly give notice to the other Party and use its commercially reasonable efforts to perform its obligations under this Agreement despite the Force Majeure Event. The foregoing notwithstanding, if the Party claiming the Force Majeure Event is unable to deliver its obligations for 30 (thirty) consecutive days, the other Party shall have the right, at its sole option, to terminate this Agreement.
Upon termination of this Agreement based on Customer’s uncured breach (following any applicable cure period), Customer will pay UNBXD any unpaid amounts that would have been owed to UNBXD for the remainder of the then-current term, without limiting UNBXD’s other rights and remedies. Upon termination of this Agreement based on UNBXD’s uncured breach (following any applicable cure period), UNBXD will refund Customer any amounts pre-paid pursuant to this Agreement on a pro rata basis for the remainder of the then-current term.
expiration or termination of this Agreement, the licenses granted by UNBXD to Customer pursuant to this Agreement will cease immediately, Customer will immediately cease all use of the Platform and Services, and each party shall delete or destroy (or, at the disclosing party’s request, return) all Confidential Information in its possession or control.
5. DISCLAIMER: THE ACCESS TO AND USE OF THE SERVICES IS PROVIDED ON AN “AS IS” BASIS, AND ANY IMPLIED WARRANTY, INCLUDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW BY UNBXD. UNBXD DOES NOT WARRANT OR GUARANTEE THAT THE PLATFORM OR THE SERVICES WILL MEET CUSTOMER’S PERFORMANCE REQUIREMENTS, INCLUDING ANY OUTCOMES OR RESULTS
INDEMNITY AND LIMITATION OF LIABILITY
1.Customer shall defend UNBXD from and against any and all allegations, action, suit or proceeding (“Claim”), and shall indemnify and hold harmless UNBXD from and against any loss, damages, costs, charges, expenses, and other liabilities incurred or awarded in such Claim, that are caused by any breach or default by the Customer under this Agreement.
2.UNBXD shall defend Customer from and against any and all Claim, and shall indemnify and hold harmless Customer from and against any loss, damages, costs, charges, expenses, and other liabilities incurred or awarded in such Claim, that are caused by any breach or default by UNBXD under this Agreement; provided, however, that this Clause 8.2 shall not cover intellectual property infringement, violation or misappropriation, which is governed by Clause 3.
3.8.3 UNBXD shall defend Customer from and against any third-party Claim brought against Customer so far as it is based on a claim that the Platform or Services directly infringe any patent or other third party intellectual property right, and shall indemnify and hold harmless Customer from and against any loss, damages, cost, charges, expenses, and other liabilities incurred or awarded in such third-party Claim including but not limited to (i) all attorneys’ fees, and court or tribunal costs incurred by UNBXD with respect to defense and settlement of such third party claim, (ii) any judgments, fines, costs and penalties awarded by any court or tribunal for such third party claim and (iii) any amounts paid in settlement of such third party claim as mutually agreed by UNBXD and the third party in such claim. Customer shall promptly notify UNBXD of such Claim in writing and shall give UNBXD authority, sole control, and assistance at UNBXD’s expense for defense and settlement of same. If UNBXD reasonably believes that Customer’s use of the Platform is likely to be enjoined, or if the Platform is held to infringe such patent or other intellectual property right and all use of the Platform by Customer is thereby enjoined, UNBXD shall, at its expense and at its sole option, (i) procure for Customer the right to continue using the Platform, (ii) replace the Platform with other non-infringing services or software of substantially equivalent functionality or (iii) modify the Platform so that there is no infringement, provided that such modified services or software provides substantially equivalent functionality. If, in UNBXD’s reasonable opinion, the remedies above are infeasible or commercially impracticable, UNBXD may, in its sole discretion, terminate this Agreement and UNBXD shall refund Customer a prorated amount of the applicable Fees pre-paid by Customer covering the whole months that would have remained, absent such early termination, in the then-current term following the effective date of such early termination. Customer shall not settle any matter without the prior written approval of UNBXD. The indemnification obligation in this Clause 8.3 will not apply to the extent the infringement is directly and solely caused by any of the following: (i) the Platform is modified in an unauthorized manner by Customer or its users and such infringement would not have occurred but for such modification, or (ii) the Platform is combined by Customer or its users with other software, hardware, application (including customer applications or systems), data or process not authorized by UNBXD and such infringement would not have occurred but for such combination. THIS CLAUSE 8.3 SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND UNBXD’S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT, VIOLATION OR MISAPPROPRIATION.
4.EXCEPT FOR CUSTOMER’S MISAPPROPRIATION OF UNBXD’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO TWICE THE FEES PAID AND PAYABLE BY CUSTOMER FOR THE PLATFORM FOR THE 12 MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. FOR CLARITY, THE ABOVE LIMITATIONS SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER CLAUSE 3. The limitations of liability and exclusions of damages in this Clause 8.4 form an essential basis of the bargain between the Parties and shall survive and apply even if any remedy specified in this Agreement is found to have failed its essential purpose.
Clauses 2.8, 2.9, 3, 4, 5, 6, 7, 8, and this Clause 9 shall survive termination. This Agreement shall be governed by, and construed and enforced in accordance with the laws of the State of California, USA. In case of any dispute between the Parties under this Agreement, such dispute shall be resolved through arbitration in accordance with the laws of the State of California, USA. Arbitration shall be conducted by a sole arbitrator, nominated by the Parties. The venue of the arbitration shall be in State of California, USA and the language shall be English.This Agreement constitutes the entire understanding of the Parties and supersedes all prior understandings, negotiations, and agreements between them.. This Agreement shall not be amended except in writing and signed by authorized representatives of both Parties. If any provision of this Agreement is held unenforceable, the remainder of this Agreement shall be enforced to the maximum extent permissible. This party shall bind each party’s successors and assigns. No failure or delay by either Party to exercise or enforce any right under this Agreement operates as a waiver of such right. Neither Party is the partner, agent or representative of the other Party under this Agreement. All notices and communications under this Agreement shall be in writing and in English, and shall be deemed given if personally delivered or mailed by prepaid courier with electronic copies to the addresses set forth in this Agreement.
951 MARINERS ISLAND BLVD,
SUITE 200 SAN MATEO,