APPLICATION SERVICES AGREEMENT
THIS AGREEMENT ("Agreement") between:
LICENSOR: ControlBox Corp. 7801 NW 37th Street Suite LP201 Miami, FL 33166 USA
And LICENSEE
RECITALS
WHEREAS, Licensor is engaged in the business of licensing Software and leasing
time/access to certain remote application Servers;
WHEREAS, Licensee desires to retain Licensor to license software and to provide
corresponding services relating thereto;
NOW, THEREFORE, Licensor and Licensee agree as follows:
1. Grant of License
Subject to the terms and conditions herein, Licensor hereby grants Licensee a
nonexclusive license to (i) access and execute ControlMoney (the "Software") on
Licensor's application server over the Internet, and (ii) transmit data related
to Licensee's use of the Software over the Internet for legitimate and lawful
purposes.
2. Use and Access
A. Subject to the restrictions on use as set
forth herein, Licensee will have access to the Software and Licensor's
application server for the purpose of using the software for its intended
purpose and in accordance with the specifications set forth in any documentation
relating to the Software provided by Licensor (which will be attached hereto or
otherwise deemed not applicable). Such use and access will be on a continuous
twenty four (24) hour per day basis except for interruptions by reason of
maintenance or downtime beyond Licensor's reasonable control.
B. Licensee will only use the Software for
its internal business operations and will not permit the Software to be used by
or for the benefit of anyone other than Licensee. Licensee will not use the
Software or related applications/services for any unlawful purpose whatsoever.
Licensee will not have the right to re-license or sell rights to access and/or
use the Licensed Software or to transfer or assign rights to access or use the
Software, except as expressly provided herein. Licensee may not modify,
translate, reverse engineer, decompile or create derivative works based upon the
Software. Licensee agrees to use the Software in a manner that complies with all
applicable laws including but not limited to intellectual property and copyright
laws. Licensor expressly reserves all rights not expressly granted to Licensee
herein.
C. Licensee will not: (i) transmit or share
identification or password codes to persons other than authorized users
permitted hereunder (ii) permit the identification or password codes to be
cached in proxy servers and accessed by individuals who are not authorized users
permitted hereunder, or (iii) permit access to the software through a single
identification or password code being made available to multiple users on a
network.
D. The Licensor shall not be liable for any
illegal Licensee activity that may or may not relate to the use of Licensor’s
software or servers. Furthermore, the Licensee agrees to pay all reasonable
legal fees, accounting expenses, costs, etc. that Licensor may incur as a direct
result of any investigation that has begun as a result of Licensee’s work or
conduct. The Licensee agrees to have sufficient controls and protocols in place
so as to insure that Licensee complies with the laws that regulate their
industry and business. The Licensee hereby agrees to reimburse all expenses that
Licensor may have to incur as a result of any investigation derivate from the
Licensee work of conduct. Furthermore, Licensee agrees that Licensor may file
liens against Licensee for the expenses incurred by Licensor due to the
investigations, terminate all services, etc. when Licensor is made aware of any
investigation whatsoever. Licensee hereby agrees and understands that NO fees
will be refunded if Licensor has to terminate services for any such cause.
E. All modifications requested by the
Licensee can be used in futures releases of the Software.
F. Licensee shall provide access to their
agent network, all agencies accessing the software must have a signed “Agent
Agreement” between Licensee and agent.
3. Pricing and Fees
Subject to prices and fees shown on www.controlbox.net
4. Technical Support
Licensor will provide hosting maintenance and database daily backup with a
secondary site for replication. Licensor will supply telephone support regarding
the Software to Licensee on a reasonable and necessary basis during normal
weekday business hours from Monday to Saturday 8am to 6pm. Eastern Standard
Time, excluding legal holidays. Additionally, Licensor will, if necessary,
provide reasonable support to Licensee through electronic and/or written
correspondence.
5. ASP – Application service provider
Licensor will provide servers and physical location to host the software
assuring:
• Up time 24/7/365 • Excellent response time for USA, Europe and
Latin America
• State-of-the-art facilities located in a AAA-rated building
• Fully redundant core switches, routers, and load balancers
• 24 x 7 environment and network monitoring and response
• SSL / HTTPS access to the software
• CA validation if requested
6. Term and Termination
A. The initial term of this Agreement will
commence the day the web site interface for the Software is accessible via the
Internet, (within a commercially reasonable time after payment is received) and
will continue for a period of six (6) months. Thereafter this Agreement will
automatically renew for successive six (6) months periods unless either party
may gives the other party not fewer than thirty (30) days written notice of its
intent not to renew, or unless terminated earlier under the terms contained
within this Agreement.
B. Either party may terminate this agreement
for material breach, provided, however, that the terminating party has given the
other party at least twenty-one (21) days written notice of and the opportunity
to cure the breach. Termination for breach will not preclude the terminating
party from exercising any other remedies for breach. Licensor may unilaterally
terminate this contract without notice if in fact Licensor is made aware of any
investigation relating to Licensee.
C. Licensee may terminate this agreement with
twenty-one (21) days written notice after one (1) month of service.
7. Ownership of Intellectual Property
Title to any proprietary rights in the Software or Licensor's web site will
remain in and be the sole and exclusive property of Licensor. Licensee will be
the owner of all content created and posted by Licensee.
8. Confidentiality
A. Licensee acknowledges that the Software
and other data on Licensor's application server embodies logic, design and
coding methodology that constitute valuable confidential information that is
proprietary to Licensor. Licensee will safeguard the right to access the
Software and other software installed on Licensor's application server using the
same standard of care that Licensee uses for its own confidential materials.
B. All data pertaining to Licensee disclosed
to Licensor in connection with the performance of this Agreement and residing on
Licensor's application server will be held as confidential by Licensor and will
not, without the prior written consent of Licensee, be disclosed or be used for
any purposes other than the performance of this Agreement. Licensor will
safeguard the confidentiality of such data using the same standard of care that
Licensor uses for its own confidential materials. This obligation does not apply
to data that: (i) is or becomes, through no act or failure to act on the part of
Licensor, generally known or available; (ii) is known by Licensor at the time of
receiving such information as evidenced by its written records; (iii) is
hereafter furnished to Licensor by a third party, as a matter of right and
without restriction on disclosure; (iv) is independently developed by Licensor
as evidenced by its written and dated records and without any breach of this
Agreement; or (v) is the subject of a written permission to disclose provided by
Licensee. Further notwithstanding the forgoing, disclosure of data will not be
precluded if such disclosure: (i) is in response to a valid order of a court or
other governmental body of the United States or foreign country; (ii) is
otherwise required by law; or (iii) is otherwise necessary to establish rights
or enforce obligations under this Agreement, but only to the extent that any
such disclosure is necessary.
9. Warranty and Disclaimer
Licensor warrants the Software is developed and will be provided in conformity
with generally prevailing industry standards. Licensee must report any material
deficiencies in the Software to Licensor in writing within thirty (30) days of
Licensee's discovery of the defect. Licensor's exclusive remedy for the breach
of the above warranty will be for Licensor to provide access to replacement
Software within a commercially reasonable time. THIS WARRANTY IS EXCLUSIVE AND
IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL
OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE
EFFECTIVE DATE OF THIS AGREEMENT. LICENSOR EXPRESSLY DISCLAIMS ALL OTHER
WARRANTIES.
10. Limitation of Liability, Indemnification
Neither party will be liable to the other for special, indirect or consequential
damages incurred or suffered by the other arising as a result of or related to
the use of the Software, whether in contract, tort or otherwise, even if the
other has been advised of the possibility of such loss or damages. Licensee will
indemnify and hold Licensor harmless against any claims incurred by Licensor
arising out of or in conjunction with Licensee's breach of this Agreement,
investigations that are a result of Licensee’s behavior or lack thereof as well
as all reasonable costs, expenses and attorneys' fees incurred therein.
Licensor's total liability under this Agreement with respect to the Software,
regardless of cause or theory of recovery, will not exceed the total amount of
fees paid by Licensee to Licensor during the twelve-month period immediately
preceding the occurrence or act or omission-giving rise to the claim.
11. Relation of Parties
Nothing in this Agreement will create or imply an agency relationship between
the parties, nor will this Agreement be deemed to constitute a joint venture or
partnership between the parties.
12. Non-assignment
Neither party will assign this Agreement, in whole or in part, without the prior
written consent of the other party, and such consent will not be unreasonably
withheld. This Agreement will inure to the benefit of, and be binding upon the
parties hereto, together with their respective legal representatives,
successors, and assigns, as permitted herein.
13. Arbitration
Any dispute arising under this Agreement will be subject to binding arbitration
by a single Arbitrator with the American Arbitration Association (AAA), in
accordance with its relevant industry rules, if any. The parties agree that this
Agreement will be governed by and construed and interpreted in accordance with
the laws of the State of Florida.. The arbitration will be held in Florida. The
Arbitrator will have the authority to grant injunctive relief and specific
performance to enforce the terms of this Agreement. Judgment on any award
rendered by the Arbitrator may be entered in any Court of competent
jurisdiction.
14. Attorneys' Fees
If any litigation or arbitration is necessary to enforce the terms of this
Agreement, the prevailing party will be entitled to reasonable attorneys' fees
and costs.
15. Severability
If any term of this Agreement is found to be unenforceable or contrary to law,
it will be modified to the least extent necessary to make it enforceable, and
the remaining portions of this Agreement will remain in full force and effect.
16. Force Majeure
Neither party will be held responsible for any delay or failure in performance
of any part of this Agreement to the extent that such delay is caused by events
or circumstances beyond the delayed party's reasonable control.
17. Waiver and Modification
The waiver by any party of any breach of covenant will not be construed to be a
waiver of any succeeding breach or any other covenant. All waivers must be in
writing, and signed by the party waiving its rights. This Agreement may be
modified only by a written instrument executed by authorized representatives of
the parties hereto.
18. Entire Agreement
This Agreement constitutes the entire agreement between the parties with respect
to its subject matter, and supersedes all prior agreements, proposals,
negotiations, representations or communications relating to the subject matter.
Both parties acknowledge that they have not been induced to enter into this
Agreement by any representations or promises not specifically stated herein.