ONLINE SUBSCRIBER LICENSE

 

This online subscriber License (“License”) is made as of the Effective Date by and between Chart Software, Inc (“Chart Software”) a Florida corporation with offices located at 352 Flanders Dr, Indialantic, FL 32903 and the entity who logs-in as Subscriber (“Subscriber”).

WITNESSETH

WHEREAS, Chart Software develops, markets and owns that certain Software and Internet website for accessing the Software, as identified hereunder; and

WHEREAS, Chart Software provides certain Services as identified hereunder for using the Software online according to the Documentation by accessing the Software using an Internet website; and

WHEREAS, Subscriber has evaluated the Software, examined the capabilities of the Services, and subscriber desires to use the Software by accessing the Software on an Internet website, subject to the terms and provisions of this License.

NOW, THEREFORE, in consideration of the mutual benefits of the covenants and restrictions herein contained, Chart Software and Subscriber hereby agree as follows:

 

Section 1 -- Recitals: The above recitals and identification of parties are true and correct.

Section 2 -- Terms and Conditions: The Online Chart Software Subscriber Terms and Conditions are incorporated herein by this reference and shall apply to this License (“Terms and Conditions”).

Section 3 -- Definitions: The following definitions shall apply:

(1)    Additional Services: The term “Additional Services” shall mean Backup Services, Support Services, Enhancements, and other services as requested and selected hereunder by Subscriber and as approved by Chart Software.

(2)    Documentation: The term “Documentation” shall mean user’s guide for the Software and Services in electronic or printed form as made available to Subscriber by Chart Software.

(3)    Effective Date: The term “Effective Date” shall mean the date Chart Software and Subscriber sign this Online Subscriber License and Chart Software assigns a Password to Subscriber (whichever is later).

(4)    Enhancement:  The term “Enhancements” shall mean modifications to the Software or Services which improve or expand the functionality or features of the Software or Services as may be released by Chart Software from time to time for a fee at Chart Software’s discretion or such modifications as requested by Subscriber and approved by Chart Software in writing.

(5)    License Term: The term “License Term” shall mean a period of time starting on the Effective Date and continuing until terminated or cancelled pursuant to this License.

(6)    Password: The term “Password” shall mean that certain password and user name assigned by Chart Software to Subscriber for purposes of accessing the Software and Services.

(7)    Online Services: The term “Online Services” shall mean services as provided by Chart Software to Subscriber for using the Software online according to the Documentation by accessing the Software and Subscriber Data using the Password on the Internet website located at: http://www.dealsynergy.com, Updates, Telephone Consultations, and Defect Resolution.

(8)    Services:  The term “Services” shall mean Online Services and Additional Services.

(9)    Software:  The term “Software” shall mean the executable code for the following computer software accessible online on the Internet by Subscriber using the Online Services, including Internet websites in connection therewith, Updates and Enhancements, entitled: “Deal Synergy”

(10)Subscriber Facilities: The “Subscriber Facilities” shall mean the following office facilities of Subscriber:

(11)Update: The term “Update” shall mean modifications to the Software or Services which improve or expand the performance of the Software or Services (as the case may be) as may be provided by Chart Software from time to time, excluding Enhancements.

(12)User Limit: The “User Limit” shall mean the maximum number of Users as stated in Appendix A authorized by Chart Software to concurrently access the Software and Services using the Passwords provided by Chart Software. For each password only one (1) user may be logged in at any given time.

Section 4 -- Fees: Subscriber agrees to the Fees stated in Appendix A.

Section 5 -- Grant of License: Chart Software hereby grants to Subscriber a non-exclusive and non-transferable license to access the Software subject to the User Limit and to use the printed Documentation at the Subscriber Facilities for the License Term, subject to the terms and provisions of this License.

Section 6 – Password: Upon payment of the Start-Up Fee to Chart Software by Subscriber, Chart Software shall assign Subscriber one or more Passwords for purposes of accessing the Software and using the Services during the License Term.

Section 7 – Access: Subscriber hereby acknowledges that the Online Services require establishment and maintenance of a dedicated Internet access to the Software by Subscriber with capacity and bandwith as specified by Chart Software from time to time and as may be modified by Chart Software from time to time.  The Online Services do not include establishment and maintenance of Internet access to the Software.  Subscriber shall be responsible for any costs in connection with accessing the Software and Services on the Internet, including (without limitation) telephone, communications, Internet service provider costs, computer hardware, modem, fees charged by third parties, insurance, Internet access software, or any other costs incurred by Subscriber in accessing the Software.

Section 8 – Telephone Consultations, Defect Resolution, and Additional Services: Subscriber may request from Chart Software reasonable telephone consultations in answering questions concerning use of the Software and Services (“Telephone Consultations”).  Chart Software shall provide Defect Resolution as provided in Section 1.12 of the Terms and Conditions.  Chart Software shall provide Additional Services as requested by Subscriber approved by Chart Software in writing.

Section 9 – Subscription Fees: Chart Software shall provide the Online Services to Subscriber for the Start-Up Fee and Subscription Fee.  Subscriber shall pay the Start-Up Fee to Chart Software on the Effective Date.  Subscriber shall pay in advance the monthly Subscription Fee, subject to invoicing under Section 10.

Section 10 -- Invoicing and Payment: Chart Software shall invoice Subscriber monthly for fees and costs incurred by Chart Software in providing Services under this License.  Receipts evidencing all costs shall accompany such invoices.  Subscriber shall pay any such invoice in full within thirty days of receipt.

Section 11 – Nonpayment: Subscriber hereby acknowledges that Chart Software may deactivate the Password and deny access to the Software and Services if Subscriber fails to pay any amount due under this License on or before the forty-fifth (45) day after receipt of the invoice.

Section 12 – Software Warranty: Chart Software represents and warrants that the Software shall perform substantially as represented in the Documentation for a period of thirty (30) days beginning on the Effective Date.  Chart Software represents and warrants that all services shall be provided on a reasonable effort basis.  The foregoing warranties shall be subject to Section 4.03 WARRANTY LIMITATIONS provision in the Terms and Conditions.  If within thirty (30) days from the Effective Date Subscriber cancels this License for failure of the Software to perform substantially as represented in the Documentation and such performance is not a result of User error, as reasonably determined by Chart Software, upon request by Subscriber Chart Software shall refund to Licensee the Start-Up Fee.

Section 13 -- Ownership and Title: Title to the Software, Documentation and all technology, including (without limitation) websites, in connection with the Software and Services (excluding Third Party Technology), including all ownership rights to patents, copyrights, trademarks and trade secrets in connection therewith shall be the exclusive property of Chart Software.

Section 14 -- Entire Agreement: The Terms and Conditions and this License contain the entire understanding of the parties and supersede previous verbal and written agreements between the parties concerning use of the Services.  In the event the License and the Terms and Conditions conflict, the Terms and Conditions shall prevail.


TERMS AND CONDITIONS

 

                These ONLINE SUBSCRIber TERMS AND CONDITIONS apply to the License (as defined hereinafter) made as of the Effective Date by and between Chart Software, Inc, a Florida corporation with offices located at 352 Flanders Dr, Indialantic, FL 32903 (“Chart Software”) and the party identified below as Subscriber.

 

ARTICLE I: SCOPE OF LICENSE AND SERVICES

 

Section 1.01 -- Recitals: The above recitals and identification of parties are true and correct.

 

Section 1.02 – Password: Subscriber hereby accepts responsibility for, and shall be liable for, all access to the Software and Services in connection with the Password.  Subscriber shall access the Software and Services only using the Password.  Subscriber shall be responsible for the confidentiality and maintenance of the Password.  Subscriber shall not assign the Password and all assignments of the Password by Subscriber shall be void.

 

Section 1.03 -- Authorized Use: Subscriber shall take reasonable measures to prevent Unauthorized Users from accessing the Software, Services, and Documentation and from using the Password.  Subscriber shall take reasonable measures to prevent Unauthorized Access to the Software, Services, Documentation, and Password.

 

Section 1.04 -- Site Restriction: Subscriber shall access the printed Documentation only at the Subscriber Facilities.

 

Section 1.05 -- User Limit: Subscriber shall take reasonable measures to prevent concurrent access to the Software and Services using the Password by more Users than the User Limit.

 

Section 1.06 – Subscriber Data: Subscriber hereby grants Chart Software a worldwide and non-exclusive license to use, reproduce, and modify the Subscriber Data, in whole or part, for the purpose of maintaining the Software or performing the Services under the License.  Chart Software shall not have the obligation to access, review, or maintain the Subscriber Data.  Subscriber shall be responsible for uploading, converting, and maintaining the Subscriber Data.

 

Section 1.07 – Lawful Purpose: Subscriber represents and warrants that Subscriber Data and all Subscriber access to the Software and Services shall not violate any contract, statute, rule, regulation, or other obligation under which Subscriber is bound.  Subscriber represents and warrants that Subscriber shall not access the Software or Services to conduct or solicit the performance of any business or activity which is tortious or prohibited by law.

 

Section 1.08 – Policy Statement: Subscriber shall comply with the Policy Statement.  Chart Software may modify the Policy Statement from time to time at the exclusive discretion of Chart Software.

 

Section 1.09 -- Acceptance: Services provided by Chart Software under the License shall be deemed delivered by Chart Software and accepted by Subscriber upon performance.

 

Section 1.10 – Support Services: Subscriber may request Chart Software to provide Subscriber with Support Services concerning the Software or Services.  Performance of such Support Services shall be subject to the exclusive discretion and written approval of Chart Software.

 

Section 1.11 – Enhancements: Chart Software may release for a fee or Subscriber may request in writing a desired Enhancement to the Software or Services.  Development of such Enhancement shall be subject to the exclusive discretion and express written approval of Chart Software.

 

Section 1.12 – Defect Resolution: Chart Software shall correct Defects in the Software (“Defect Resolution”) within a reasonable time after such Defect is reported to Chart Software by Subscriber as follows:

 

(a)        Problem Reporting: Upon discovering a Defect, Subscriber shall report the Defect (“Service Request”).

 

(b)        Telephone Support: Within a reasonable time after receiving a Service Request, Chart Software shall provide telephone support in the form of consultations, assistance and advice concerning use of the Software and correction of the Defect (“Telephone Support”).

 

(c)           Off-Site Support: If a Defect is not corrected through Telephone Support within a reasonable time after receiving a Service Request, Chart Software shall conduct tests and analyses at Chart Software's facilities designed to reproduce, isolate and correct the Defect using data and information provided to Chart Software by Subscriber (“Off-Site Support”).

 

(d)           Additional Support:  If a Defect is not corrected by Chart Software through Off-Site Support within a reasonable time after receiving a Service Request,  Chart Software shall implement work around processes designed to minimize the impact of the Defect.

 

Section 1.13 -- Reasonable Assistance: All Telephone Consultations shall be subject to the discretion of Chart Software.  If Subscriber requires an excessive amount of telephone consultations with Chart Software concerning use of the Software or Services, as reasonably determined by Chart Software, Subscriber shall, at Subscriber’s sole expense, complete additional training on the use of the Software and Services with Chart Software or use of the Third Party Technology with the third party vendor.

 

Section 1.14 -- Representative: Subscriber shall appoint one employee of Subscriber as the primary representative of Subscriber under the License (“Subscriber Representative”).  The Subscriber Representative shall be the primary contact with Chart Software for purposes of enabling Chart Software to provide Defect Resolution, Support Services, and Enhancements requested by Subscriber.

 

Section 1.15 -- Schedule Restrictions: Additional Services, Defect Resolution, and Telephone Consultations to be provided by Chart Software under the License shall be performed only during the hours of 8:30 a.m. through 5:30 p.m. Eastern Time, Monday through Friday (excluding holidays), unless otherwise required (as reasonably determined by Chart Software).

 

 

ARTICLE II: PAYMENT

 

Section 2.01 – Subscription Fee: Subscriber shall pay the Start-Up Fee and Subscription Fee to Chart Software as provided in the License.

 

Section 2.02 – Additional Services: Support Services and Enhancements requested by Subscriber shall be performed by Chart Software at time and material rates of Chart Software prevailing at the time such services are rendered.  Backup Services shall be performed by Chart Software for the fee specified in the License.  Chart Software shall invoice Subscriber for any services provided by Chart Software according to Section 10.

 

Section 2.03 -- Costs: All direct costs (except telephone costs) incurred by Chart Software in providing any services pursuant to the License shall be reimbursed by Subscriber at actual cost.  Such direct costs shall include, (without limitation) postage, travel, per diem, material, and reproduction expenses.  Telephone costs incurred by Chart Software in providing any services pursuant to the License shall be reimbursed by Subscriber at actual cost plus ten percent.  Chart Software shall invoice Subscriber for direct costs according to Section 10.

 

Section 2.04 -- Taxes: Subscriber shall pay any and all applicable taxes (excluding income taxes assessed against Chart Software).

 

Section 2.05 -- Late Fee: Any amount which is not paid when due by Subscriber shall be increased by a late charge equal to 1½% of such unpaid amount for each month in which such amount is due and not paid.

 

Section 2.06 -- Refund: Excepting refund of the Start-Up Fee pursuant to Section 12, if the License is terminated or cancelled, Chart Software shall retain all amounts paid by Subscriber before the termination or cancellation date (as the case may be).

 

Section 2.07 -- Audit: Upon ten days advance written notice to Subscriber, Chart Software shall have the right once a year during business hours to audit and examine or to have an independent and qualified auditor audit and examine Subscriber’s relevant books of account, records, data and correspondence concerning information relevant to this License and for purposes of compliance with the License.  Subscriber shall keep accurate records, data, correspondence, and books of account relating to this License.  Subscriber shall retain all records and books of account for a period of three (3) years following termination or cancellation of the License.

 

ARTICLE III:  TERMINATION

 

Section 3.01 -- Termination Limitations: This License shall only be terminated and canceled as provided under this Article III.

 

Section 3.02 -- Term: This License shall be valid for the License Term.

 

Section 3.03 -- Termination: Either party may terminate the License upon providing thirty (30) days advance written notice of termination to the other party.  Upon termination of the License, Subscriber shall immediately cease and desist any and all access to and attempts to access the Software and Services.

 

Section 3.04 -- Cancellation for Cause: If a party violates its obligations under the License, the other party may cancel the License by sending Cancellation Notice describing the noncompliance to the other party.  Upon receiving Cancellation Notice, the non-complying party shall have thirty days (30) from the date of such notice to cure any such noncompliance.  If such noncompliance is not cured within the required thirty day (30) period, the party providing the written notice shall have the right to cancel the License as of the thirty-first (31) day after the date of the Cancellation Notice.

 

Section 3.05 – Nonpayment: Notwithstanding Sections 3.03 and 3.04, Chart Software shall have the right to disable and deny the Password and cancel the License without notice upon Subscriber failure to pay any amount due on or before the forty-fifth (45) day after receipt of an invoice.

 

Section 3.06 – Shut-off: Notwithstanding Sections 3.03 and 3.04, Chart Software shall have the right to disable and deny the Password and cancel the License without notice upon Subscriber violation of Section 1.07 or upon receipt of notice by Chart Software from a third party challenging use of the Software and Services by Subscriber.

 

Section 3.07 – Deactivation and Removal: Upon termination or cancellation of the License, Chart Software shall have the right to disable and deny the Password and cease all Subscriber access to the Software and Services.  Upon termination or cancellation of the License, Subscriber shall promptly remove, migrate or convert (as the case may be) the Subscriber Data and Subscriber shall be responsible for and shall pay all fees and costs in connection therewith, and Subscriber shall destroy or return (as requested by Chart Software) any copies of Documentation or Chart Software property in possession of Subscriber.

 

Section 3.08 -- Payment: Termination or cancellation of the License shall not relieve Subscriber from any payment obligation under the License.  Excepting refund of the Start-Up Fee pursuant to Section 12, all payment obligations of Subscriber under the License shall survive termination and cancellation of the License. 

 

ARTICLE IV: WARRANTY

 

Section 4.01 -- Express Warranties: Subscriber hereby acknowledges and agrees that Chart Software (including officers, employees, agents, directors and independent contractors of Chart Software) has not made any express warranties concerning the Software, Services, or Documentation, excepting the software warranty of Section 12 and the services warranty of Section 12 in the License.

 

Section 4.02 – Downtime: Subscriber hereby acknowledges and agrees that the Software and Services may be inaccessible for a period of time for purposes of maintenance, installation, updates, replacements, or backup of the Software or Services.  Chart Software hereby disclaims and Subscriber hereby waives any and all Chart Software responsibility resulting from Subscriber failure to access the Software or Services during such maintenance period.

 

Section 4.03 -- WARRANTY LIMITATION: THE FOREGOING WARRANTIES IN SECTION 12 OF THE LICENSE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES OF MERCHANTABILITY.  EXCEPTING THE WARRANTIES EXPRESSLY ACKNOWLEDGED HEREUNDER, Chart Software HEREBY DISCLAIMS AND SUBSCRIBER HEREBY WAIVES ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY.  Chart Software HEREBY DISCLAIMS AND SUBSCRIBER HEREBY WAIVES ANY WARRANTY THAT USE OF OR ACCESS TO THE INTERNET, SOFTWARE, AND SERVICES BY SUBSCRIBER WILL BE UNINTERRUPTED OR ERROR FREE.  Chart Software HEREBY DISCLAIMS AND SUBSCRIBER HEREBY WAIVES ANY WARRANTY OR GUARANTEE AGAINST UNAUTHORIZED ACCESS BY THIRD PARTIES TO THE SOFTWARE AND THE SERVICES.  SUBSCRIBER HEREBY AGREES THAT USE OF THE INTERNET AND THE SERVICES SHALL BE AT THE SOLE AND EXCLUSIVE RISK OF SUBSCRIBER, AND SUBJECT TO THE RESTRICTIONS, TERMS AND CONDITIONS, RULES, REGULATIONS, POLICIES, APPLICABLE LAWS, AND CODES OF CONDUCT GOVERNING THE INTERNET.

 

Section 4.04 – Subscriber Data Warranty: Subscriber hereby represents and warrants that Subscriber possesses all necessary rights, title, and interest in the Subscriber Data free and clear of any encumbrances, third-party interests, and restrictions for purposes of using the Software and Services.

 

Section 4.05 – Loss of Subscriber Data:  Programming, software design errors, maintenance of the Software and Services, or unauthorized access to the Software and Services may result in the loss of Subscriber Data.  Chart Software shall not be responsible for any loss of Subscriber Data.

 

Section 4.06 -- Merchantability Limitation: Subscriber is solely responsible for determining whether the Software and Services is suited for Subscriber’s needs, for operating the Services, and the results obtained from the Software and Services.  Chart Software makes no claim that the Software and Services is suitable for the needs of Subscriber.  Chart Software makes no representations regarding conformity with or satisfaction of any federal, state, or local laws.

 

Section 4.07 -- Indemnification: If a final judgment from a court of competent jurisdiction is entered against Subscriber upholding claims that the Software or Services violate a United States patent, copyright, or trade secret or any other proprietary rights of a third party in the United States, provided Subscriber gives Chart Software prompt written notice upon Subscriber’s knowledge of any such claim, provides Chart Software with assistance and authority to assist Subscriber in the defense of such claim or action, and permits Chart Software to answer, defend, or settle (at Chart Software’s option) any such claim, Chart Software shall perform one or more of the following actions (as reasonably determined exclusively by Chart Software) within one year of the date final judgment in favor of such third party's claim is rendered by a court of competent jurisdiction:

 

(1)                 Modification: Modify the Software or Services to avoid the infringement without substantially eliminating the functional and performance capabilities of the Software and Services;

 

(2)           Obtain License: Obtain a license for use of the technology from the third party claiming infringement of the Software or Services.

 

The remedies set forth herein shall be the sole and exclusive remedies of Subscriber under this Section 4.07 and shall be subject to Section 4.08 and 4.09

 

Section 4.08 – Exclusive Remedy: Excepting refund of the Start-Up Fee pursuant to Section 12, the exclusive remedy of Subscriber for any reason and for any cause of action whatsoever in connection with or relating to the License, the Software, Services, or any transaction involving the Software or Services, regardless of the form of action, whether in contract or in tort, shall be limited to repair or replacement of the Software or reperformance of Services, as determined by Chart Software.

 

Section 4.09 -- Limitation of Damages: Chart Software shall not be liable to Subscriber under the License for any indirect, lost profits, consequential, exemplary, incidental or punitive damages, regardless of the form of action, whether in contract or in tort, regardless of whether Chart Software has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable.

 

Section 4.10 -- Force Majeure: Chart Software shall not be liable to Subscriber for failing to perform its obligations under the License because of circumstances beyond the control of Chart Software.  Such circumstances shall include, but not be limited to, any acts or omissions of any government or governmental authority, natural disaster, act of a public enemy, riot, sabotage, dispute or differences with workers, power failure, computer failure, network telecommunications activity, telecommunications and network failure, Internet failure, third party software defects, delays in transportation or deliveries of supplies or materials, acts of God, terrorism, and any events reasonably beyond the control of Chart Software.

 

Section 4.11 -- Indemnification: Subscriber shall release, defend, indemnify and hold harmless Chart Software (including officers, employees, agents, directors and independent contractors of Chart Software) from and against any and all claims, damages and liability (including reasonable attorney fees) arising from or related to use of the Software and Services by Subscriber, arising from or related the Subscriber Data, and arising from or related to Subscriber breach of the License.

 

Section 4.12 -- Cooperation: Subscriber shall provide Chart Software information concerning the Software and Services, as may be reasonably requested by Chart Software from time to time, and shall fully cooperate with Chart Software in good faith in the performance of the License.

 

Section 4.13 -- Export Assurance: Subscriber shall not perform any act in conflict with or in violation of the export laws and regulations of the United States.

 

ARTICLE V: Intellectual Property

 

Section 5.01 -- Confidential Information: Receiving Party shall not disclose Confidential Information except to Authorized Persons.  Receiving Party shall not duplicate, use, or disclose Confidential Information except as otherwise permitted under the License.  Confidential Information of Chart Software shall be deemed to include all information concerning the License, the Software, Services, and Documentation.

 

Section 5.02 -- Trade Secrets: Subscriber hereby acknowledges and agrees that the Confidential Information of Chart Software derives independent economic value (actual or potential) from not being generally known to other persons who can obtain economic value from its disclosure or use and from not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; is the subject of reasonable efforts under the circumstances to maintain its secrecy; and is a trade secret as defined under Chapter 688 of the Florida Statutes [§688.002(4)] and the Restatements.

 

Section 5.03 – Third Party Technology: Subscriber hereby acknowledges that the Software and Services incorporate or use Third Party Technology (in whole or in part) for use in connection with the Software and Services.  Subscriber acknowledges that use of the Third Party Technology when accessing the Software and Services is subject to any and all terms and conditions for such Third Party Technology as provided by owner or licensor of the Third Party Technology.

 

Section 5.04 -- Reverse Engineering: Subscriber shall not reverse engineer the Software or Services and shall take reasonable measures to prevent the Software and Services from being reverse engineered.

 

Section 5.05 -- Copies: Subscriber shall not copy the Software, Services, or Documentation and shall take reasonable measures to prevent the Software, Services, or Documentation from being copied without the prior written consent of Chart Software.

 

Section 5.06 -- Modifications: Subscriber shall not modify the Software or Services and shall not allow the Software or Services to be modified without the prior written consent of Chart Software.  Subscriber shall not use the Software or Services or any materials incident thereto to develop computer software without the prior written consent of Chart Software.  If the Software or Services is modified, such modifications shall be the sole and exclusive property of Chart Software and Chart Software shall own all of the rights, title and interests to such modifications and any resulting computer software, including (but not limited to) any and all copyrights, patents and trade secrets related thereto.

 

Section 5.07 -- U.S. Government Restricted Rights: Where Subscriber is the U.S. Government or an agency or department thereof (collectively “Government”), the Software, Services, and Documentation are provided with RESTRICTED RIGHTS and use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1) and (2) of the Commercial Computer Software Restricted Rights clause at 48 C.F.R. 52.227-19, as applicable, which is incorporated herein by the reference.

 

Section 5.08 -- No Contest: Subscriber shall not contest or aid in contesting the ownership or validity of the trademarks, trade secrets or copyrights of Chart Software.

 

Section 5.09 -- Employee Pirating: Each party shall not (1) induce or solicit (directly or indirectly) any Associate of the other party to leave the employ or hire of the other party or (2) engage (directly or indirectly) the services of any Associate of the other party (as an employee, consultant, independent contractor, or otherwise) without the advance written consent of the other party.

 

ARTICLE VI: DEFINITIONS AND MISCELLANEOUS

 

Section 6.01 -- Definitions: The following definitions shall apply: 

 

(1)                 Access: The term “access” and variants thereof shall mean to store data in, retrieve data from or otherwise approach or make use of (directly or indirectly) through electronic means or otherwise.

 

(2)                 Associate: The term “Associate” shall mean an employee of Chart Software or Subscriber (as applicable) or an independent contractor hired by Chart Software or Subscriber (as applicable).

 

(3)                 Authorized Person: The term “Authorized Person” shall mean (i) employees and legal counsel of the Receiving Party who agree to maintain the confidentiality of such Confidential Information in consideration for receiving such Confidential Information; and (ii) individuals or organizations who are authorized in writing by the Disclosing Party to receive Confidential Information.

 

(4)                 Cancellation Notice: The term “Cancellation Notice” shall mean that written notice sent by a party to the other party seeking to cancel the License because of breach by the other party.

 

(5)            Confidential Information: The term “Confidential Information” shall mean all information disclosed by the Disclosing Party to the Receiving Party which is identified by the Disclosing Party as proprietary or confidential at the time such information comes into the possession or knowledge of the Receiving Party and which is not: (i) already known to the Receiving Party from a source other than a Disclosing Party; (ii) conveyed to the Receiving Party by a third party without restrictions as to confidentiality or use; (iii) independently developed by the Receiving Party; and (iv) required by Court Order to be released by the Receiving Party.

 

(6)            Defect: The term “Defect” shall mean programming or software design errors that substantially impair the performance, utility, and functionality of the Software as represented in the Documentation.

 

(7)            Disclosing Party: The term “Disclosing Party” shall mean a party to this License who discloses Confidential Information to the other party to this License.

 

(8)            Documentation: The term “Documentation” shall mean the term “Documentation” as set forth in the License.

 

(9)            Effective Date: The term “Effective Date” shall mean the term “Effective Date” as set forth in the License.

 

(10)         Enhancement: The term “Enhancement” shall mean the term “Enhancement” as set forth in the License.

 

(11)         License:  The term “License” shall mean that certain Online Subscription License between Chart Software and Subscriber for accessing the Software and Services, which incorporates these Online Subscriber Terms and Conditions by reference.

 

(12)         License Term: The term “License Term” shall mean the term “License Term” as set forth in the License.

 

(13)         Password: The term “Password” shall mean the term “Password” as set forth in the License.

 

(14)         Policy Statement: The term “Policy Statement” shall mean those certain written statements of policies, in printed or electronic form, concerning access to the Software and Services as may be adopted by Chart Software and as modified by Chart Software from time to time.

 

(15)         Receiving Party: The term “Receiving Party” shall mean a party to this License who receives Confidential Information from the other party to this License.

 

(16)         Restatements: The term “Restatements” shall mean Section 757 of the Restatement of Torts, Section 39 of the Restatement (Third) of Unfair Competition, Section 1 of the Uniform Trade Secrets Act, and 18 U.S.C. § 1839.

 

(17)         Services: The term “Services” shall mean the term Services as set forth in the License.

 

(18)         Software: The term “Software” shall mean the term Software as set forth in the License.

 

(19)         Start-Up Fee: The term “Start-Up Fee” shall mean that certain amount of money specified as the Start-Up fee in the License.

 

(20)         Subscriber: The term “Subscriber” shall mean the party identified as Subscriber on the signature page of the License.

 

(21)         Subscriber Data: The term “Subscriber Data” shall mean any information, data, or any other technology uploaded, posted, processed, transmitted, or submitted by Subscriber to the Software.

 

(22)         Subscriber Facilities: The term “Subscriber Facilities” shall mean the office facilities of Subscriber identified in the License.

 

(23)         Subscription Fee: The term “Subscription Fee” shall mean the amount of money specified as the Subscription Fee in the License.

 

(24)         Support Services: The term “Support Services” shall mean those certain consulting, implementation, support, and training services provided to Subscriber by Chart Software in connection with the Software and Services.

 

(25)         Third Party Technology: The term “Third Party Technology” shall mean any and all third party technology, including (without limitation) computers, equipment, database software and any other database software, incorporated in whole or part in the Software or Services or used in connection with the Software or Services.

 

(26)         Unauthorized Access: The term “Unauthorized Access” shall mean any access to the Software, Services, or Documentation except for (i) the exclusive purposes of using and accessing the Software and Services according to the Documentation on the Internet using the Password; (ii) searching, retrieving, processing, and downloading Subscriber Data; and (iii) training employees of Subscriber in the use of the Software or Services.

 

(27)         Unauthorized User: The term “Unauthorized User” shall mean any individual who accesses the Software, Services, or Documentation except for: (1) employees of Subscriber authorized by Subscriber to access the Software, Services, and Documentation for (i) the exclusive purpose of using and accessing the Software and Services according to the Documentation on the Internet using the Password; (ii) searching, retrieving, processing, and downloading Subscriber Data; and (iii) training employees of Subscriber in the use of the Software or Services; and (2) Authorized Persons who are authorized in writing by Chart Software to access the Software, Services, and Documentation.

 

(28)         Update: The term “Update” shall mean the term “Update” as set forth in the License.

 

(29)         User Limit: The term “User Limit” shall mean the maximum number of Users authorized by Chart Software to concurrently access the Software and Services, as specified in the License.

 

(30)         Users: The term “Users” shall mean employees of Subscriber who access the Software, Services, or Documentation, subject to the terms and provisions of the License.

 

Section 6.02 -- Assignments: All assignments of rights under this License by Subscriber without the prior written consent of Chart Software shall be void.

 

Section 6.03 -- Equitable Remedies: The parties hereby acknowledge that damages at law may be an inadequate remedy for Chart Software.  Therefore, Chart Software shall have the right of specific performance, injunction, or other equitable remedy in the event of a breach of this License by Subscriber.

 

Section 6.04 -- Amendments and Modifications: Waivers, alterations, modifications or amendments of a provision of this License shall not be binding unless such waiver, alteration, modification or amendment is in writing and signed by Chart Software.

 

Section 6.05 -- Severability: If a provision of this License is rendered invalid, the remaining provisions shall remain in full force and effect.

 

Section 6.06 -- Captions: The headings and captions of this License are inserted for reference convenience and do not define, limit or describe the scope or intent of this License or any particular section, paragraph, or provision.

 

Section 6.07 -- Counterparts: This License may be executed in multiple counterparts, each of which shall be an original, but which together shall constitute one and the same instrument.

 

Section 6.08 -- Governing Law: This License shall be governed by the laws of the State of Florida, without regard to any rules of conflict or choice of laws which require the application of laws of another jurisdiction, and venue shall be proper in Brevard County, Florida.

 

Section 6.09 -- Notice: All notices shall be in writing.  Notices by Subscriber to Chart Software shall be deemed delivered when delivered by commercial next business day delivery service, by hand, or by Certified or Registered Mail - Return Receipt Requested - to the address set forth below for Chart Software.  Notices by Chart Software to Subscriber shall be deemed delivered when delivered electronically, by commercial next business day delivery service, by hand, or by Certified or Registered Mail – Return Receipt Requested to the address specified in the License for Subscriber or the email address provided by Subscriber.  Notice shall be deemed given on the date notice is delivered electronically, or by hand, or on the date of receipt - as evidenced in the case of Certified or Registered Mail by Return Receipt, whichever comes first.  Notices by Chart Software to Subscriber electronically shall be deemed written notices.

 

Chart Software:

 

Chart Software, Inc     

352 Flanders Dr, Indialantic, FL 32903

                                       

 

Section 6.10 -- Pronouns/Gender: Pronouns and nouns shall refer to the masculine, feminine, neuter, singular, or plural, as the context shall require.

 

Section 6.11 -- Waiver: Waiver of breach of this License shall not constitute waiver of another breach.  Failing to enforce a provision of this License shall not constitute a waiver or create an estoppel from enforcing such provision.

 

Section 6.12 -- Relationship of the Parties: It is agreed that the relationship of the parties is primarily that of licensee and licensor.  Nothing herein shall be construed as creating a partnership, an employment relationship, or an agency relationship between the parties, or as authorizing either party to act as agent for the other.  Each party shall maintain its separate identity.

 

Section 6.13 -- Arbitration: Any controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration in accordance with the Arbitration Rules of MyTechnologyLawyer.com in Melbourne, Florida. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.  Qualified Arbitrators shall be selected by the parties in accordance with the Arbitration Rules of MyTechnologyLawyer.com.  Each party shall have the right of discovery as set forth in the Federal Rules of Civil Procedure. The Arbitration shall be administered by MyTechnologyLawyer.com.

 

Section 6.14 -- Assurances: Each party hereby represents and warrants that all representations, warranties, recitals, statements and information provided to each other under this License are true, correct and accurate as of the Effective Date of this License to the best of their knowledge.

 

Section 6.15 -- Litigation Expense: In the event of litigation arising out of this License, each party shall bear its own costs and expenses of litigation or arbitration, including, but not limited to, attorney fees, travel expenses, deposition costs, expert witness expenses and fees, court costs and other costs incurred in connection with bringing or defending such action whether or not incurred in trial or appeal (excluding fees and expenses of arbitrators and administration fees and expenses of arbitration).

 

Section 6.16 -- Continuation: The terms and provisions of Articles II, IV, V, and VI shall survive termination and cancellation of this License.