You agree to the terms set forth in the use of our survey software, it's reporting and question components which together developed by Employee Talk Incorporated provide a process that this software license purchase agreement is based.
Use is limited by member access.
Developer has developed and licenses to users its software program (the "Software"), and Licensee desires to utilize the 21 Initiatives Software program based on Bronze, Silver and Gold access allotted in time of use. This software product Does Not include a website, and
Does Not include E-Commerce capability, the continual long term use are described in paragraph 8.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, Developer and Licensee agree as follows:
1. License. Developer hereby grants to Licensee, a non-exclusive, limited license to use the Software set forth in this Agreement as a Bronze, Silver and Gold member user. This license is valid upon payment of IAW in the provisions of paragraph 4. This license includes all support to the software for as long as the Licensee is active and has not expired in support IAW paragraph 8 below.
2. Hardware. Hardware IS NOT included in this contract. All “Hardware” (computers, etc), must be obtained by the Licensee.
3. Restrictions. The Software and the accompanying materials are copyrighted and contain proprietary information. Licensee shall not modify, rent, lease, display, copy, duplicate, reproduce, license or sublicense the Survey Software, or transfer or convey the questions in the 21 initiatives or any right in the Software to anyone else without the prior written consent of Developer.(Employee Talk)
4. Payment. In consideration for the grant of long term license use at member rate is as an active Gold member whereby expiration of membership prohibits long term member rate and use of the Software, Licensee agrees to pay Developer the total allotted under the Bronze, Silver and Gold memberships.
5. Installation/Training Support. Installation & support is available. Employee Talk does not interpret or analyze results but does provide the reporting structure to identify where to take action from internally offered solutions available to be implemented. Additional support in review of these solutions and comments for such editing as neutral entity is available for an added fee, which will be agreed upon before the additional work takes place. The charge for editing is $69 an hour and protects anonymity and possible legal ramification.
6. Warranty of Title. Developer hereby represents and warrants to Licensee that Developer is the owner of the Software and has the right to grant to Licensee the rights as set forth in this Agreement. In the event any breach or threatened breach of the foregoing representation and warranty, Licensee's sole remedy shall be to require Developer or to either: i) procure, at Developer's expense, the right to use the Software, ii) replace the Software or any part thereof that is in breach and replace it with Software of comparable functionality that does not cause any breach, or iii) refund to Licensee the full amount of the license fee upon the return of the Software and all copies thereof to Developer.
7. Warranty of Functionality. For a period of member access following use of the Survey Software due to internet downtime outside the licensee control within our network; extensions and use can be granted to Licensee, and thereafter for as long as the Service Agreement is in effect, Developer warrants that the Software shall perform in all material respects according to the Developer's specifications when used with the appropriate computer equipment. In the event of any breach or alleged breach of this warranty (regarding the functionality of the Software), Licensee shall promptly notify Developer and return the Software to Developer at Licensee's expense. Licensee's sole remedy shall be that Developer shall correct the Software so that it operates according to the warranty. This warranty shall not apply to the Software if modified by anyone or if used improperly or on an operating environment not approved by Licensor. In the event of any defect in the media upon which the Software is provided within 120 days of the date of delivery, Developer shall provide Licensee a new use of the Software upon written notification to Developer of the Software.
8. Service Agreement (Software Updates /Tech Support). The Service Agreement (SA) includes all updates, tech support, and database maintenance, for as long as Licensee maintains the membership. The charge for the membership falls within the Bronze Silver, Gold and specifically the Engagement membership access where extensions per month are limited to Gold membership only and shall continue until notified by either party in writing. If Developer elects to discontinue maintenance at any time a refund of any then unearned maintenance fees will be made to Licensee. As long as the SA is kept current, the Developer shall provide to the Licensee any new, corrected, or enhanced version of the Software as created by Developer. Such enhancement shall include all modifications to the Software that increase the speed, efficiency or ease of use of the Software, or add additional capabilities or functionality to the Software, but shall not include any substantially new or rewritten version of the Software.
9. Taxes. In addition to all other amounts due hereunder, Licensee shall also pay to Developer, or reimburse Developer as appropriate, all amounts due for property tax on the Software and for sales, use, excise taxes or other taxes which are measured directly by payments made by Licensee to Developer. In no event shall Licensee be obligated to pay any tax paid on the income of Developer or paid for Developer's privilege of doing business.
10. Warranty Disclaimer. DEVELOPER'S WARRANTIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11. Limitation of Liability. Developer shall not be responsible for, and shall not pay, any amount of incidental, consequential or other indirect damages, whether based on lost revenue or otherwise, regardless of whether Developer was advised of the possibility of such losses in advance. In no event shall Developer's liability hereunder exceed the amount of license fees paid by Licensee, regardless of whether Licensee's claim is based on contract, tort, strict liability, and product liability or otherwise.
12. Notice. Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by personal delivery or by certified mail, postage prepaid, recognized overnight delivery services, or FAX.
If to Developer, send to: Employee Talk.
13. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the state of Ohio.
14. Ownership of Changes/Improvements to the Software. Any “recommendations or suggestions” to improve and/or change the Software, regardless of source, that are incorporated into the Software, become the property of the Developer.
15. No Assignment. Neither this Agreement nor any interest in this Agreement may be assigned by Licensee without the prior express written approval of Developer.
16. Final Agreement. This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. This Agreement may be modified only by a further writing that is duly executed by both parties.
17. Severability. If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
18. Headings. Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent. IN WITNESS WHEREOF, Developer and Licensee have executed this Software License Agreement on the day of purchase.