SOFTWARE LICENSE AGREEMENT
THIS AGREEMENT is entered into as by and between Spork Marketing, LLC (SPORK), with offices at 8801 E Hampden Ave, Suite 210, Denver, Colorado, 80231 and electronic mail address [email protected] ("LICENSOR") and the plugin purchaser ("LICENSEE").
WHEREAS, Licensee wishes to license software for the purpose of offering a part catalog lookup on a WordPress website and SPORK desires to license this software to licensee.
NOW THEREFORE, the parties hereto agree as follows:
1. GRANT OF LICENSE
Subject to the terms and conditions of the Agreement, SPORK grants to Licensee a non-exclusive, non-transferable license to use the Spork SMTP Catalog Lookup Plugin ("Licensed Plugin") for the purpose of adding a part catalog lookup to a WordPress website. Licensee may use the Licensed Plugin for its own use, and may translate or modify the licensed program to incorporate it into other software. Licensee may not, however, transfer or sublicense the Licensed Plugin to any third party, in whole or in part, in any form, whether modified or unmodified.
2. CONSIDERATION TO SPORK
- Licensee shall pay a one-time licensing fee of $999, which includes the use of the Licensed Plugin, a one-time installation and configuration of the Licensed Plugin by SPORK, and verification of the Licensed Plugin’s core functionality upon completed installation by Licensee.
- Licensee agrees to provide SPORK a fully functional and fully licensed ShowMeTheParts API key for the purpose of installing the Licensed Plugin on the Licensee’s website. The API key must be obtained from Vertical Development, Inc., a third party that is not affiliated with SPORK.
- Licensee agrees to provide a fully-functional WordPress website and hosting environment to SPORK for the purpose of installing and configuring the Licensed Plugin, including FTP or SSH access to the hosting environment and full administrator access to the WordPress software.
- Licensee acknowledges that Licensed Plugin compatibility and functionality is limited by Licensee’s agreement with Vertical Development, Inc., which provides use of an API for a fee separate from this agreement. Licensee further acknowledges that installation of Licensed Plugin may conflict with existing WordPress themes, add-ons, customizations, or plugins, and that Licensee agrees to allow SPORK to disable or modify any themes, add-ons, customizations, or plugins that interfere with Licensed Plugin.
- Licensee acknowledges that License fees do not include any customization of the Licensed Plugin’s appearance, including but not limited to the appearance of any forms or search results generated by the Licensed Plugin.
- Licensee understands that the initial $999 license fee does NOT include updates to Licensed Plugin that occur more than 12 months after date of the license agreement. The Licensee may extend access to Licensed Plugin updates for one year (12 months) for a fee of $300 per year, subject to the terms of this agreement.
- Should the Licensee require Spork to re-install or re-configure the Licensed Plugin after the initial installation and configuration has been verified and completed, SPORK shall provide these services at a rate of $95 per hour, with a total cost estimate provided to the Licensee before work begins.
3. COPIES
Licensee may make copies of the Licensed Plugin in executable code form as necessary for use by Licensee and for backup or archive purposes. Each Licensed Plugin is copyrighted but unpublished by SPORK. Licensee agrees to reproduce and apply the copyright notice and proprietary notice of SPORK to all copies made hereunder, in whole or in part and in any form, of Licensed Plugin.
4. OWNERSHIP
The original and any copies of the Licensed Plugin, made by Licensee, including translations, compilations, partial copies, modifications, and updates, are the property of SPORK.
5. PROPRIETARY RIGHTS
Licensee recognizes that SPORK regards the Licensed Plugin as its proprietary information and as confidential trade secrets of great value. Licensee agrees not to provide or to otherwise make available in any form the Licensed Plugin, or any portion thereof, to any person other than employees of Licensee without the prior written consent of SPORK. Licensee further agrees to treat the Licensed Plugin with at least the same degree of care with which Licensee treats its own confidential information and in no event with less care than is reasonably required to protect the confidentiality of the Licensed Plugin.
6. TERM
The license granted hereunder shall continue unless and until terminated pursuant to Section 7 hereof and subject to Licensee's proper performance of its obligations hereunder.
7. TERMINATION
SPORK may terminate this Agreement if Licensee is in default of any of the terms and conditions of this Agreement and fails to correct such default within ten (10) days after written notice thereof from SPORK. In the event of termination, Licensee will immediately discontinue use of the Licensed Plugin. Within one (1) month after termination of this Agreement, Licensee will furnish to SPORK an electronic mail message that certifies with respect to the Licensed Plugin that, through its best effort and to the best of its knowledge, the original and all copies, in whole or in part and in any form, of each of the Licensed Plugin have been destroyed. The provisions of Sections 4, 5, 7, 10, and 12 hereof shall survive any termination of this Agreement.
8. MAINTENANCE SUPPORT
Licensor will provide to Licensee the following support with respect to the Software:
- If during the first year (12 months) of this Agreement, Licensee notifies Licensor of a substantial error respecting the Software, or Licensor has reason to believe that error exists in the Software and so notifies Licensee, Licensor shall at its expense verify and attempt to correct such error within thirty (30) working days after the date of notification. If Licensee is not satisfied with the correction, then Licensee may terminate this Agreement, with a refund of the license fee. Licensee acknowledges that they must provide FTP or SSH access to the hosting environment as well as full administrator access to WordPress so that Licensor can correct any errors or forgo any claims to a refund.
- In the case that Licensee has technical questions in the use of the Software during the first year (12 months) of this Agreement, Licensee may submit those questions to Licensor via electronic mail. Licensor shall provide consulting to answer such questions without charge to Licensee up to a maximum of four (4) hours.
- If License desires to continue the Software support specified in this section, Licensee shall pay to Licensor $95 per hour of consulting time.
9. DELIVERY OF LICENSED PROGRAMS
SPORK shall use its best efforts to deliver the Licensed Plugin promptly after receipt of the purchase order.
10. WARRANTY DISCLAIMER
WordPress installations may use any number of plugins from the thousands of available plugins, and as such can create a wide variety of installation scenarios. As a result, SPORK cannot be held responsible for any Licensed Plugin incompatibility or conflicts that may occur which result in the Licensee’s plugin not working correctly.
The Licensed Plugin is dependent upon the functionality of an API provided by a third party. As such, SPORK cannot be held responsible for any failures, service interruptions, or errors of any kind caused by the failure of the API.
The Spork SMTP Catalog Lookup Plugin provided "as is" without warranty of any kind, expressed or implied. We shall not be liable for any damages, including but not limited to: direct, indirect, special, incidental or consequential damages or losses that occur out of the use or inability to use any of the Licensed Plugin.
SPORK licenses, and Licensee accepts, the licensed programs "AS IS." SPORK PROVIDES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN NO EVENT SHALL SPORK BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE LICENSED PROGRAM IS WITH LICENSEE. LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE LICENSED PROGRAMS WILL MEET LICENSEE'S REQUIREMENTS OR THAT THE OPERATION OF THE LICENSED PROGRAMS WILL BE UNINTERRUPTED OR ERROR FREE.
11. PATENT AND COPYRIGHT INDEMNITY
In the event that a Licensed Plugin becomes, or in SPORK's opinion is likely to become, the subject of a claim of infringement of a United States patent, copyright or trade secret, SPORK may at its option either secure Licensee's right to continue using the Licensed Plugin, replace or modify the Licensed Plugin to make them not infringing, or provide Licensee with a refund of the license fee. SPORK shall have no liability for any claim of patent, copyright or trade secret infringement based on the use of a Licensed Plugin in any form other than the original, unmodified form provided to Licensee or the use of a combination of the Licensed Plugin with hardware, software or data not supplied by SPORK where the used Licensed Plugin alone in their original, unmodified form would not constitute an infringement.
12. LIMITATION OF LIABILITY
SPORK'S LIABILITY TO LICENSEE UNDER ANY PROVISIONS OF THIS AGREEMENT FOR DAMAGES FINALLY AWARDED SHALL BE LIMITED TO THE AMOUNTS ACTUALLY PAID HEREUNDER BY LICENSEE TO SPORK. IN NO EVENT SHALL SPORK BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR INTERRUPTION OF BUSINESS, HOWEVER CAUSED OR ON ANY THEORY OF LIABILITY.
13. API FUNCTION INDEMNITY
In the event that the API provided by Vertical Response, Inc. shall be offline, out of service, not functioning correctly, or otherwise not available, SPORK shall have no liability for any damages, including loss of use, loss of profits or interruption of business, nor shall the Licensed Plugin be considered inoperable or non-functional as described in Section 8.
14. NOTICES
All notices in connection with this Agreement shall be in writing and may be given by certified, registered, first class mail, or electronic mail delivered at the address set forth in this agreement. For purposes of this Agreement, a notice shall be deemed effective upon electronic mail delivery to the party or if by mail five days after proper deposit in a mail box.
15. SUCCESSORS
This Agreement will be binding upon and will inure to the benefit of the parties hereto and their respective representatives, successors and assigns except as otherwise provided herein.
16. SEVERABILITY
In the event any provision of this Agreement is determined to be invalid or unenforceable, the remainder of this Agreement shall remain in force as if such provision were not a part.
17. GOVERNING LAW/FORUM
This Agreement shall be governed and interpreted by the laws of the State of Colorado. Denver, Colorado shall be the appropriate venue and jurisdiction for the resolution of any disputes hereunder. Both parties hereby consent to such personal and exclusive jurisdiction.
18. NON-ASSIGNMENT
This Agreement and the licenses granted by it may not be assigned, sublicensed, or otherwise transferred by Licensee without the prior written consent of SPORK.
19. ENTIRE AGREEMENT
This Agreement sets forth the entire understanding between the parties with respect to the subject matter hereof, and merges and supersedes all prior agreements, discussions and understandings, express or implied, concerning such matters. This Agreement shall take precedence over any additional or conflicting terms which may be contained in Licensee's purchase order or SPORK's order acknowledgment forms.
