THIS AGREEMENT ("Agreement") is entered into on this date
between Trinity Consultants, Inc. ("Licensor"), with its principal place of business
located at 12770 Merit Drive, Suite 900, Dallas, Texas, 75251 and you and, if applicable,
the company or other legal entity you represent (collectively, "Licensee"), and
shall be effective upon initial use of this service (the "Effective Date").
You agree that we may modify this Agreement or any policy
or other terms referenced in this Agreement (collectively, "Additional Policies")
at any time by posting a revised version of the Agreement or such Additional Policy
on the BREEZE-Software.com or WorldGeoData.com Websites.
By continuing to use the Services after the effective date
of any revisions to this Agreement, you agree to be bound by the revised Agreement.
It is your responsibility to check for updated Agreements or the Additional Policies
regularly, as applicable. A Web link to the Agreement is provided on the Service
submittal form. We last modified this Agreement on the date set forth at the
top of this Agreement.
By submitting a data to the BREEZE Remote Modeling Service
(“BRMS”), Licensee indicates that Licensee accepts this agreement. Licensee
agrees to be bound by the tems and conditions of this agreement. If you are entering into this agreement on behalf of a company or other legal entity, you represent
that you have the legal authority to bind the legal entity to this agreement, in
which case “Licensee” shall mean such entity. If you do not have such authority,
or if you do not agree with the terms and conditions of this agreement, you must
not select the “Send” button and you may not use the services.
RECITALS
WHEREAS, Licensor is engaged in the business of providing
access to Software and Licensor's application server;
WHEREAS, Licensee desires to retain Licensor to perform the
services provided for in this agreement.
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 the BREEZE Remote Modeling Service (the "Service" or “Software”)
on Licensor's application server over the Internet, and (ii) transmit data related
to Licensee's use of the Software over the Internet.
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. Such
use and access will be continuous on a 24 hour / 7 days a week basis except for
interruptions by reason of maintenance or downtime beyond Licensor's reasonable
control.
B.
Licensee will use the Software only 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 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 intellectual property and copyright laws. Licensor expressly
reserves all rights not expressly granted to Licensee herein.
C. Licensee
will not interfere or attempt to interfere in any manner with the functionality
or proper working of the Services.
D.
Licensor will provide 1 GB of space on the application server for
Licensee to use for storage of data necessary for use of the Software. If Licensee's
use exceeds the base storage space allotted, Licensee will pay a rate of $5.00 per
megabyte over the allotted storage.
3. Price and Payment
A.
Licensee will pay Licensor the appropriate fees for the license of
the Software and access to Licensor's application server.
B.
The fees for the license of the Software do not include taxes. If
Licensor is required to pay or collect any federal, state, local, or value-added
tax on any fees charged under this Agreement, or any other similar taxes or duties
levied by any governmental authority, excluding taxes levied on Licensor's net income,
then such taxes and/or duties will be billed to and paid by Licensee immediately
upon receipt of Licensor's invoice and supporting documentation for the taxes or
duties charged.
C.
We may specify the manner in which you will pay
any fees, and any such payment shall be subject to our general accounts receivable
policies from time to time in effect. All amounts payable by you under this Agreement
will be made without setoff or counterclaim and without deduction or withholding.
If any deduction or withholding is required by applicable law, you shall notify
us and shall pay such additional amounts to us as necessary to ensure that the net
amount that we receive, after such deduction and withholding, equals the amount
we would have received if no such deduction or withholding had been required. Additionally,
you shall provide us with documentation that the withholding and deducted amounts
have been paid to the relevant taxing authority.
4. Technical Support
Technical support
is described in detail on the attached Exhibit A (Service Level Agreement).
5. Term and Termination
A.
The initial term of this Agreement will commence the day the application
interface for the Software is available, (within a commercially reasonable
time after payment is received) and will continue for the period that the service
is used (e.g., model execution).
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.
6. 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.
7. 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; (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.
C. Licensor
may delete, without liability of any kind, any of Licensee’s data that remains on
the Licensor’s server after 15 days, or other time period specified in the user documentation.
8. 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. DEVELOPER EXPRESSLY DISCLAIMS
ALL OTHER WARRANTIES.
9. 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, 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 six month period immediately
preceding the occurrence or act or omission giving rise to the claim.
10. 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.
11. 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.
12. 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 Texas.
The arbitration will be held in Texas. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.