SOFTWARE - The software covered by the scope of this License is commonly known under the trade name AbydeTM, in its current version (the “Software”) with all hosting obligations as Licensor, Abyde (“Abyde or “Licensor”) provides. Software includes the web portal, any modules, variations, amendments and updates that Client has or will purchase from Licensor. Licensor warrants that it has authority to supply License to Client.
All right, title and interest in and to the Software and Documentation, including all intellectual property rights therein, shall remain the property of Licensor, subject only to the license granted to Client. Any development, updates or maintenance that we perform, whether under this license or by separate agreement will remain solely our intellectual property. The license(s) set forth in this Agreement is not a sale and do not transfer to Client any title or ownership in or to the Software or the Documentation or any patent, copyright, trade secret, trade name, trademark or other proprietary or intellectual property rights related thereto.
Client shall not copy, reproduce, translate, adapt, vary or modify the Software without our express consent. It is Client’s responsibility to (1) supervise and control the use of the Software in accordance with the terms of this license; (2) ensure its employees, sub-contractors and other agents who have authorized access to the program are made aware of the terms of this license; and (3) not provide or otherwise make available the Software in any form to any person other than those bound by this Agreement without our written consent.
Abyde agrees to support and maintain the Software during the term of the License in a professional and timely manner – but is not responsible for any malfunctions due to unforeseen issues relating to Clients’ operating environment.
LICENSE TERM AND FEES – This Agreement provides Client a non-exclusive, non-transferable license to use AbydeTM Software and any other modules, which may be purchased from Abyde, for a duration of 1 year. During this term, it is the responsibility of Abyde to support and maintain the Software in the manner described herein for the Client. This license term begins upon Client sign up.
If Client is delinquent, Abyde has the right to assess a late fee to be calculated in a sum equal to 1.5% of the amount outstanding. This charge will be assessed against all fees and costs delinquent in excess of ten (10) days. Licensor reserves the right to terminate Client’s access to the software solution and terminate services where Client is delinquent in excess of ten (15) days.
MAINTENANCE AND SUPPORT - Abyde agrees to provide the following Software related maintenance and support Services: (1) corrective maintenance which shall include reactive modification to attempt to correct discovered functionality problems; (2) perfective maintenance which shall include reasonable services to improve performance or maintainability; (3) preventive maintenance which shall include modification to detect and attempt to correct latent faults central to the Software functionality.
NOTIFICATION - In the event a claim, suit or proceeding by a third party for which indemnification may be available under this Agreement is made or filed against any person, party or Entity, the person, party or Entity against which the claim, suit or proceeding is made (the "Indemnified Party"), shall promptly notify the other party (the "Indemnifying Party") in writing of the claim, suitor proceeding. The Indemnifying Party, within fifteen (15) days, or such shorter period as is required to avoid any prejudice in the claim, suit or proceeding, after the notice, may elect to defend, compromise, or settle the third party claim, suit or proceeding at its expense. In any third party claim, suit or proceeding which the Indemnifying Party has elected to defend, compromise or settle, the Indemnifying Party shall not after the election be responsible for the expenses, including counsel fees, of the Indemnified Party but the Indemnified Party may participate therein and retain counsel at its own expense. In any third party claim, suit or proceeding the defense of which the Indemnifying Party shall have assumed, the Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the matter without the consent of the Indemnifying Party and the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement affecting the Indemnified Party to the extent that the judgment or settlement involves more than the payment of money without the written consent of the Indemnified Party. The Indemnified Party shall provide to the Indemnifying Party all information, assistance and authority reasonably requested in order to evaluate any third party claim, suit or proceeding and affect any defense, compromise or settlement.
LIMITATION OF LIABILITY - NOTWITHSTANDING ANYTHING IN THIS AGREEMENT, IN NO EVENT WILL ABYDE BE LIABLE FOR ANY FINE, LOST REVENUE, PROFIT, OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Except for infringement indemnity obligations as set forth under this Agreement, in no event Abyde's liability to Client, whether in contract, tort (including negligence), or otherwise, exceed the amount paid by Client under this Agreement.
TERMINATION - In addition to the rights and remedies available to a party at law or equity, and subject to the requisites for Dispute Resolution as set out hereunder, a party may terminate this Agreement in the event the other party fails to comply with any material provision herein. Either party may terminate this Agreement without cause subject to 30 days’ written notice. Notwithstanding any termination of this Agreement, the rights and obligations relating to title, infringement indemnity, warranty, termination and limitation of liability, as well as any other provisions, which survive by their terms, shall survive termination.
DISPUTE RESOLUTION - In the event of a dispute between the Parties, the issue will first be escalated to the individuals identified as the each Party’s project manager. If these individuals cannot resolve the dispute within ten (10) days of written notice of failure to resolve this issue, the issue will shall be escalated to a senior executive that each party may determine is respected, knowledgeable and responsible within the each Party’s company. Either Party may initiate dispute resolution by notice to the other Party. Such notice will be without prejudice to the invoking Party’s rights to any other remedy permitted hereunder. The Parties will use commercially reasonable efforts to arrange meetings or telephone conferences, as needed at mutually convenient times and places, to facilitate negotiations between the Parties. Where relevant the Products Manufacturer shall be consulted for guidance on Product issues. In the event that the Parties fail or are unable to resolve a dispute between them within five (5) days of receiving notice, and after exhausting the escalation process set forth above, then either Party may declare that a deadlock exists. In the event of a deadlock after undertaking the foregoing steps to resolve the dispute in good faith, the Parties shall attempt to resolve the dispute through mediation prior to instituting litigation or other adversary proceeding.
Mediation - A Party shall initiate mediation by serving written notice on the other Party by overnight mail courier with tracking ability. The Parties may select any mediator mutually agreeable to them. If the Parties cannot agree on a mediator within five (5) days, they will, within another five (5) days thereafter submit a joint request for mediation to the Orlando, Florida office of the American Arbitration Association (“AAA”) and request the AAA to select an appropriate mediator with experience in resolving Software License disputes. The mediation session shall occur within thirty (30) days of the selection of the mediator unless the Parties mutually agree to extend this time, and shall be scheduled for not less than one day. Each Party agrees to send a representative with full settlement authority to the mediation. The mediation shall be conducted exclusively in Pinellas County, Florida or within 100 miles thereof, unless otherwise agreed by the Parties. The Parties agree to hold the content of the mediation in confidence in accordance with Florida law, and further agree that the mediator is disqualified as a litigation/arbitration witness for any Party to the mediation. The Parties further agree that the mediation shall be considered to be a form of settlement negotiations, the content of which shall not be admissible as evidence of liability in any arbitration/ judicial proceeding. Each Party shall bear its own expenses and an equal share of the expenses of the mediator and, where applicable, the AAA. The Parties agree that mediation is a condition precedent to arbitration or litigation in court unless otherwise agreed to by the parties in writing. Except as provided below, if the Party who ultimately prevails in any arbitration or other adversary proceeding without first attempting mediation as required hereby, SUCH PREVAILING PARTY SHALL NOT BE ENTITLED TO ATTORNEYS’ FEES OR COSTS THAT MIGHT OTHERWISE BE AVAILABLE TO IT UNDER THIS CONTRACT OR IN COURT ACTION.
Arbitration - In the event the Parties are unable to dispose of a dispute through mediation, any and all claims, disputes, questions or controversies involving the parties hereto and arising out of or in connection with this Agreement, or the execution, interpretation, validity, performance, breach, or termination hereof (collectively, the “Disputes”) shall, upon satisfaction of the terms set out under Paragraph 12 (A) herein and the written request of any Party to this Agreement, be resolved by a final and binding arbitration. The arbitration shall be conducted by the Orlando, Florida office of the AAA in accordance with the Commercial Arbitration Rules of the American Arbitration Association as then existing, before a single arbitrator if such disputes involve $100,000 or less and before three arbitrators if such disputes involve more than $100,000. Judgment upon the award of the arbitrator(s) may be entered in any court having jurisdiction thereof. Subject to the terms herein, Arbitration shall be in lieu of all other remedies and procedures available to the parties, provided that the parties must mediate prior to instituting an arbitration in compliance with Paragraph 14(A) and the Parties may seek preliminary injunctive or other interlocutory relief prior to the commencement of or during such proceedings. The arbitrator(s) shall award reasonable costs and attorney fees to the party, if any, that is deemed to be the substantially prevailing party in the arbitration. All defenses based on passage of time shall be tolled pending mediation, unless otherwise prohibited by law.
Interim Relief - Nothing in this Section shall be construed to preclude any party from seeking injunctive or other provisional relief in order to protect its rights pending mediation or arbitration, provided however, that such relief may only be sought within the appropriate judicial forum as provided in this Agreement in the event a Party seeks interim relief without first attempting mediation, such Party shall not forfeit its entitlement to legal fees and costs that would otherwise be available to it only if such party initiates mediation with fifteen (15) days after initiating the action seeking interim relief. A request to a court for interim relief shall not be deemed a waiver of the obligation to mediate.
CONFIDENTIALITY - Each party must treat the confidential information of the other party as confidential and commercially valuable and ensure that its representatives do the same. The parties must not disclose each other's confidential information unless: (1) there is a legal requirement to do so; (2) or the confidential information is disclosed to employees or contractors solely for the purposes of performing this Agreement. For the protection of both parties, the confidentiality of this Agreement will survive the termination of this Agreement into perpetuity.
MISCELLANEOUS - Provider may assign or transfer any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Client. This Agreement shall inure to the benefit of, shall be binding upon and shall be enforceable by any such assignee. No delay, failure or waiver by either party to exercise any right or remedy under this Agreement shall operate to waive any exercise of such right or remedy or any other right or remedy. If any provision in this Agreement shall be found or be held to be invalid or unenforceable, then the meaning of said provision shall be construed, to the extent feasible, so as to render the provision enforceable; and the remainder of this Agreement shall remain in full force and effect. This Agreement constitutes the entire Agreement between Provider and Client with respect to the subject matter of this Agreement.