Banckle Live Chat for WordPress distribution permissions and end-user license agreement
This Services Agreement ("Agreement") governs the provision by Banckle, Inc. ("Banckle") and the access and use by you, its customer ("You" or "Customer") of Banckle's Collaboration SaaS services ("Services"). BY CLICKING ON "I ACCEPT" BELOW OR OTHERWISE, YOU ACKNOWLEDGE HAVING REVIEWED AND ACCEPTED THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS, YOU SHOULD NOT BEGIN USE OF YOUR ACCOUNT OR BANCKLE'S SERVICES, AND YOU SHOULD IMMEDIATELY NOTIFY BANCKLE.
2. License and Restrictions
2.1 License: Subject to the terms of this Agreement, Banckle hereby grants You a limited, personal, non-commercial, non-exclusive, non-sublicensable, non-assignable, free of charge license to download, install and use the Licensed Software on Your computer, phone or PDA.
2.2 No Granting of Rights to Third Parties: You will not sell, assign, rent, lease, distribute, export, import, act as an intermediary or provider, or otherwise grant rights to third parties with regard to the Licensed Software or any part thereof.
2.3 No Modifications: You will not undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Licensed Software or any part thereof except to the extent permitted by law.
2.4 Third Parties: The Licensed Software may be incorporated into, and may incorporate itself, software and other technology owned and controlled by third parties. Any such third party software or technology that is incorporated in the Licensed Software falls under the scope of this Agreement. Any and all other third party software or technology that may be distributed together with the Licensed Software will be subject to You explicitly accepting a license agreement with that third party. You acknowledge and agree that You will not enter into a contractual relationship with Banckle or its Affiliates regarding such third party software or technology and you will look solely to the applicable third party and not to Banckle or its Affiliates to enforce any of your rights.
2.5 Exclusive Ownership: Any and all IP Rights in the Licensed Software, the Banckle Website, the Banckle Online Material and the Banckle Promotional Materials are and shall remain the exclusive property of Banckle and/or its licensors. Nothing in this Agreement intends to transfer any such IP Rights to, or to vest any such IP Rights in, You. You are only entitled to the limited use of the IP Rights granted to You in this Agreement. You will not take any action to jeopardize, limit or interfere with Banckle's IP Rights. Any unauthorized use of Banckle's IP Rights is a violation of this Agreement as well as a violation of intellectual property laws and treaties, including without limitation copyright laws and trademark laws. All title and IP Rights in and to any third party content that is not contained in the Licensed Software, but may be accessed through use of the Licensed Software, is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties.
2.6 No Removal of Notices: You agree that You will not remove, obscure, make illegible or alter any notices or indications of the IP Rights and/or Banckle's rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to any materials.
4. INTELLECTUAL PROPERTY
4.1 Infringing or Inappropriate Content. Banckle reserves the right, in its sole discretion, to remove or disable access to any Content or other materials that violate or otherwise allegedly infringe on any Intellectual Property Rights, violate any applicable law, expose Banckle to civil or criminal liability or violate the End User Terms ("Restricted Content"); provided, however, that such right shall not place an obligation on Banckle to monitor or exert editorial control over the Branded Application, Web Applications, Marketing or Content. Banckle shall in no event be liable for the good faith removal of or disabling of access to the Branded Application or Web Applications (or to any part thereof) or any other Content or materials hosted by Banckle pursuant to this Section. Consistent with the Digital Millennium Copyright Act, it is the policy of Banckle to suspend or terminate the access and other rights of any party who repeatedly furnishes or transmits Restricted Content in connection with the Branded Application or Web Applications. Banckle shall use its reasonable efforts to provide Customer with notice of any such removal of or disabling of access with respect to the Restricted Content.
4.2 Rights Regarding Other Property. Customer owns the Content. Customer grants to Banckle a non-exclusive, worldwide right and license to modify, adapt, reproduce, display, perform, distribute, transmit, prepare derivative works from and otherwise use the Content-related process as may be reasonably necessary or appropriate for Banckle to perform its obligations hereunder. Notwithstanding the foregoing, all proprietary materials of Banckle and/or its licensors (including any software, processes and tools) and any other inventions, developments, discoveries, software, processes, tools or designs that are created, conceived of, developed, invented, delivered, provided or used by Banckle during the Term of this Agreement, including the Deployed Services, and any improvements or modifications thereof, (collectively, the "Banckle IP"), but excluding any Content, are, and shall at all times remain, the sole and exclusive property of Banckle, including, without limitation, all worldwide Intellectual Property Rights embodied in, related to or otherwise represented by the Banckle IP.
5. FEES AND PAYMENTS
5. 1. Fees and Payment Terms. In consideration of the rights and obligations provided hereunder, Customer shall pay Banckle an annual charge on the Effective Date prior to providing the Deployed Services to End Users and on each anniversary of the Effective Date thereafter. Customer shall pay Banckle the then current applicable fees determined by Banckle corresponding to the Customer's selected plan. Customer shall pay any and all applicable value added or sales taxes or similar charges relating to the products and services provided under this Agreement or to payments made by Customer hereunder. All applicable fees are due immediately upon receipt by Customer of an invoice from Banckle and are non-refundable. Payment of all applicable fees is a pre-requisite to the renewal of the Term of this Agreement. All payments under this Agreement will be made in US Dollars.
5.2 Late Payment. In the event that any unpaid amounts are referred to collection by Banckle, Customer shall reimburse Banckle for all costs and expenses of collection, including all reasonable attorneys' fees incurred therefor. Banckle reserves the right to setoff amounts due from Customer against amounts otherwise due from Banckle to Customer or to suspend performance hereunder until overdue accounts are paid in full.
6. WARRANTIES AND DISCLAIMER
6.1 Banckle Warranty. Banckle warrants that: (a) it has the power and authority to enter into and perform its obligations under this Agreement; and (b) it owns or licenses all rights in and to Banckle IP necessary to perform its obligations hereunder.
6.2 Customer Warranty. Customer warrants that: (a) it has the power and authority to enter into and perform its obligations under this Agreement; (b) it owns or licenses all rights in and to the Content necessary to perform its obligations hereunder.
6.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.1 AND 6.2, EACH PARTY DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. Banckle DOES NOT WARRANT THAT THE DEPLOYED SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
6.4 DAMAGES. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, BANCKLE SHALL IN NO EVENT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), INDEMNITY OR OTHER LEGAL, CONTRACTUAL OR EQUITABLE THEORY FOR: (i) ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER OR NOT ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES; OR (ii) DAMAGES FOR LOST PROFITS OR LOST DATA; OR (iii) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES.
7.1 Customer Indemnity. Customer shall indemnify, defend and hold harmless Banckle, its directors, officers, managers, members, shareholders, attorneys and agents from and against any and all third party claims, costs, demands, expenses, liabilities and losses, including reasonable attorneys' fees and expenses, arising from or related to: (a) any of the Marketing or Content, including, without limitation, any infringement upon or violation of the Intellectual Property Rights or other rights of any third party; (b) breach by Customer of Customer's warranties under Section 6.2; (c) any warranties or representations made by Customer or Customer's agents which differ from those provided by Banckle; or (d) the gross negligence or willful misconduct of Customer.
7.2 Banckle Indemnity. Banckle shall indemnify, defend and hold harmless Customer its directors, officers, managers, members, shareholders, attorneys and agents from and against any and all third party claims, costs, demands, expenses, liabilities and losses, including reasonable attorneys' fees and expenses, arising from or related to: (a) infringement upon or violation of the Intellectual Property Rights or other rights of any third party by the Banckle IP; (b) breach by Banckle of Banckle 's warranties under Section 6.1; or (c) the gross negligence or willful misconduct of Banckle.
7.3 Indemnification Procedures. In claiming any indemnification hereunder, the indemnified party shall: (a) promptly provide the indemnifying party with notice of any claim which the indemnified party believes falls within the scope of Section 7.1 or 7.2; and (b) reasonably cooperate with the indemnifying party, at the indemnifying party's expense, including providing all reasonably necessary information within its control for the indemnifying party to conduct a defense. The indemnified party may, at its own expense, assist in the defense if it so chooses, provided that the indemnifying party shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the indemnified party shall not be final without the indemnified party's written consent, which shall not be unreasonably withheld.
7.4 Remedies for Infringement. Should any portion of the Banckle IP or its intended use with respect to the Deployed Services become, or in Banckle's opinion likely to become, the subject of a claim of infringement, violation or misappropriation of any Intellectual Property Rights of any third party, in addition to Banckle's indemnity obligations hereunder, Banckle may, at its sole option and expense, perform the following: (a) procure for Customer the right to continue using the Banckle IP under the terms of this Agreement; (b) replace or modify the Banckle IP so that it is non-infringing and substantially equivalent in function to the enjoined Banckle IP; or (c) terminate the Agreement.
8. LIMITATION OF LIABILITY
Banckle SHALL NOT BE LIABLE TO Customer OR ANY THIRD PARTY FOR: (A) ANY CONTENT OR DATA FURNISHED OR TRANSMITTED BY Customer, ITS REPRESENTATIVES OR ANY THIRD PARTY OUTSIDE Banckle's REASONABLE CONTROL; (B) ANY INTERRUPTIONS OR IMPAIRMENTS IN SERVICE CAUSED BY Customer, ITS REPRESENTATIVES OR ANY THIRD PARTY OUTSIDE Banckle's REASONABLE CONTROL; OR (C) ANY FAILURE OF HARDWARE, SOFTWARE OR CONTENT FURNISHED BY Customer, ITS REPRESENTATIVES OR ANY THIRD PARTY OUTSIDE Banckle's REASONABLE CONTROL. EXCEPT FOR EACH PARTY'S PERFORMANCE OF ITS INDEMNIFICATION OBLIGATIONS HEREUNDER, EITHER PARTY'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREIN OR EITHER PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ARISING UNDER THIS AGREEMENT, THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY ARISING FROM OR RELATED TO THIS AGREEMENT, FOR ANY REASON, SHALL BE LIMITED TO THE FEES PAID HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CAUSE OF THE DAMAGES AROSE. THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS.
9. TERM AND TERMINATION
9.1 Term of Agreement. This Agreement shall commence on the Effective Date and, unless otherwise terminated in accordance with the terms hereof, shall continue for a term of one (1) year following the Effective Date ("Term"). The Term shall automatically renew for successive one (1) year renewal terms ("Renewal Term") unless either party notifies the other in writing of its intention not to renew the Term at least thirty (30) days prior to the expiration of the then-current Term or Renewal Term.
9.2 Termination for Cause. In addition to the other termination rights set forth in this Agreement, either party may terminate this Agreement upon written notice to the other party if the other party: (a) materially breaches any obligation and fails to cure such breach within thirty (30) days after receiving notice; provided, however, that for any non-compliance with Banckle's End User Terms or Customer compromises the security of the Deployed Services or other systems, Banckle may terminate this Agreement in a shorter period of time if such termination is necessary for Banckle to avoid liability with fifteen (15) days written notice if Customer fails to cure such non-compliance within such period of time; (b) terminates or ceases operating its business in the normal course; (c) makes an assignment for the benefit of its creditors; or (d) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute, or becomes insolvent or subject to direct control by a trustee, receiver or similar authority, provided that such condition has not been cured within sixty (60) days.
9.3 Rights upon Termination; Survival. All provisions of this Agreement relating to confidentiality, proprietary rights, limitation of liability, indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement. Upon any expiration or termination of this Agreement: (a) Customer shall cease all use and/or distribution of the Licensed Software; (b) return the Confidential Information and all related materials and copies thereof to Banckle; and (c) the due date of all monies due Banckle shall automatically be accelerated so that such payments shall become due and payable on the effective date of termination, even if longer terms had been provided previously. In addition to the foregoing, Customer agrees that it shall not, following termination of this Agreement, act in any way to damage the reputation or goodwill of Banckle or any Licensed Software. Except as otherwise expressly provided herein, upon any termination of this Agreement, Customer shall not be entitled to, and to the fullest extent permitted by law waives, any statutorily prescribed or other compensation, reimbursement or damages for loss of goodwill, Clientele, prospective profits, investments or anticipated sales, commitments or business opportunities of any kind.
10.1 Confidential Information. "Confidential Information" means the terms of this Agreement, the Banckle IP and any non-public information that a disclosing party reasonably considers to be of a confidential, proprietary or trade secret including, but not limited to, financial, business and technical information, marketing, engineering and other plans, financial statements and projections, customer and supplier information, research, designs, plans, compilations, methods, techniques, processes, procedures and know-how, whether in tangible or intangible form, and whether or not stored, compiled or memorialized physically, electronically, graphically, photographically or in writing. Confidential Information shall not include information which: (a) is, as of the time of its disclosure, or thereafter becomes, part of the public domain through a source other than the receiving party; (b) was rightfully known to the receiving party as of the time of its disclosure; (c) is independently developed by the receiving party; or (d) is subsequently learned from a third party not under a confidentiality obligation to the disclosing party.
10.2 Obligations. Each party agrees to secure and protect the Confidential Information of the other party in a manner consistent with the maintenance of the other party's rights therein, using at least as great a degree of care as it uses to maintain the confidentiality of its own confidential information of a similar nature or importance, but in no event less than a reasonable degree of care. Neither party will use, sell, transfer, publish, disclose or otherwise make available to third parties any portion of the Confidential Information of the other party, except as necessary to perform its obligations under this Agreement or as expressly authorized in this Agreement or as required (and only to the extent required) to be disclosed pursuant to a duly authorized subpoena, court order, government authority or otherwise by law, in which event the party subject to same shall provide prompt written notice to the other party prior to such disclosure so that such party may seek a protective order or other appropriate remedy, if applicable. Each party acknowledges that breach of this Section 10 may cause irreparable harm to the disclosing party entitling the disclosing party to seek injunctive relief, among other remedies.
10.3 Return of Confidential Information. Upon any termination or expiration of this Agreement, or upon a request by either party hereto, all Confidential Information of one party in the possession or control of the other party shall be promptly returned or destroyed, at the other party's written instruction; provided, however, that each party shall be permitted to retain one (1) copy of such Confidential Information, as applicable, solely for archival purposes.
10.4 Non-disclosure of Agreement Terms. Neither party shall disclose the terms of this Agreement without the prior written consent of the other party, except that each party may: (a) make such disclosures as are necessary to comply with applicable laws, rules and regulations or as necessary to enforce this Agreement; and (b) disclose the terms of this Agreement to such party's auditors, attorneys, bankers or investment bankers as necessary for their rendition of services to such party, or to potential investors or purchasers in connection with their due diligence reviews of such party, provided that such persons agree to keep the information confidential subject to restrictions consistent with the restrictions set forth in this Section. The party to disclose the other party's Confidential Information must do the following: (a) gives written notice of the intended disclosure to the other party at least ten (10) days in advance of the date of disclosure or if ten (10) days is not feasible then as much notice as is possible under the circumstances; (b) upon request of the other party and at the requesting party's expense, the party to disclose the Confidential Information redacts portions of the Confidential Information to be disclosed to the extent permitted by applicable law.