Master Services and Software Agreement
IMPORTANT, READ CAREFULLY: YOUR USE OF THE FUSE SOFTWARE PLATFORM (AND ANY ASSOCIATED SOFTWARE AND WEBSITES) AND PRODUCTS AND SERVICES DESCRIBED ON YOUR ORDER FORM(S) (COLLECTIVELY, THE “SERVICES”) PROVIDED BY FUSE TECHNOLOGIES, INC. AND ITS AFFILIATES (“FUSE” OR “LICENSOR”) IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS AND CONDITIONS, INCLUDING USE IN ACCORDANCE WITH THE CURRENT VERSION OF ANY SUPPORTING TECHNICAL DOCUMENTATION PROVIDED TO YOU BY FUSE OR AVAILABLE ON FUSE’S WEBSITES (“DOCUMENTATION”). PLEASE REVIEW THOROUGHLY BEFORE ACCEPTING.
BY PURCHASING, USING, OR OTHERWISE ACCESSING ANY OF THE SERVICES YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS AND ALL ORDER FORMS AND POLICIES INCORPORATED HEREIN BY REFERENCE (THE “AGREEMENT”). THE SERVICES ARE NOT AVAILABLE TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THESE TERMS.
If you are an entity, organization, or company, the individual accepting this Agreement on your behalf represents and warrants that they have authority to bind you to this Agreement and you agree to be bound by this Agreement.
Fuse will provide the Services, and you may access and use the Services, in accordance with this Agreement. If you order the Services through an Order Form (as defined herein), the Order Form may contain additional terms and conditions and information regarding the Services you are ordering.
Master Services and Software Subscription Agreement
Licensor operates certain software, materials, and services, which can be used to purchase tickets, hotel reservations, transportation, and other travel-related services (collectively, “Travel Packages”) for events organized by participating third parties, including the Customer.
Licensor wishes to grant to Customer, and Customer desires to obtain from Licensor, certain rights to use certain software, materials and services provided by Licensor, as more particularly described below and in accordance with the terms and conditions of this Agreement;
For purposes of this Agreement, the following terms shall have the following meanings:
1.1. “Client Program” shall mean the object code form of those portions of the Licensed Software that are branded for Customer’s exclusive use and otherwise made available by Licensor in connection with the Service
1.2. “Close-Out” shall mean the day all expenses and costs related to Travel Packages subject to an Order Form shall have been finally determined by Licensor, with a detailed summary having been emailed to the Customer.
1.3. “Customer Data” shall mean information about third parties that register for Travel Packages subject to an Order Form (including personal data) submitted through the Licensed Software and the Service.
1.4. “Derivative Work” shall mean a new or modified work that is based on or derived from a preexisting work, including, without limitation, a work that, in the absence of a license, would infringe the copyright in such preexisting work or that uses trade secrets or other proprietary information with respect to such preexisting work.
1.5. “Fees” shall have the meaning provided in Section 5.
1.6. “Intellectual Property Rights” shall mean worldwide statutory and common law rights associated with (a) patents and patent applications; (b) works of authorship, including copyrights, copyright applications, copyright registrations, and “moral rights”; (c) the protection of trade and industrial secrets and confidential information; (d) Trademarks (as defined herein); and (e) divisions, continuations, renewals, and re-issuances of any of the foregoing, now existing or acquired in the future.
1.7. “Licensed Software” shall mean, collectively, (a) those Server Programs and, if any, Client Programs, that are set forth in Exhibit A; and (b) any Updates.
1.8. “Event” shall mean a concert, festival, trip, or other event attended by third parties which is promoted or sponsored by the Customer.
1.9. “Server Program” shall mean the object code form of those portions of the Licensed Software that are both designed to be installed and used on a server, and are expressly designated as “Server Programs” in Exhibit A.
1.10. “Service” shall mean the service by which software products and services (including, without limitation, the Server Programs) hosted on servers controlled by Licensor and, as applicable, its designees, are made available through the Internet for remote use by Customer and Travel Package purchasers, together with any other services Licensor provides to Customer under any Order Form.
1.11. “Order Form” shall mean a statement of work agreed to in writing by Licensor and Customer which provides a detailed description of Customer’s desired use of the Licensed Software a Services for the sale of Travel Packages to an Event, and sets forth, inter alia, the timing of the Event, its location, the services (if any) that Customer desires from Licensor and the Fees to be charged for such use, the form of which is attached hereto as Exhibit B.
1.12. “Term” shall have the meaning set forth in Section 12.1.
1.13. “Trademarks” shall mean (a) the trademarks, trade names, and service marks used by a party, whether registered or unregistered; (b) the respective stylistic marks and distinctive logotypes for such trademarks, trade names, and service marks; and (c) such other marks and logotypes as either party may designate from time to time in writing.
1.14. “Updates” shall mean the object code forms of any modifications, error corrections, bug fixes, new releases, or other updates of or to the Server Programs and Client Programs that may be provided or otherwise made available hereunder by the Licensor to Customer during the Term.
1.15. “Website Data” shall mean information collected about persons using the website relating to purchasing a Travel Package to an Event, subject to an Order Form, which, at the Licensor’s absolute sole discretion, may include social media pixels, number of visits, average time spent on the website, pages viewed, page response times, download errors, length of visits to certain pages, page interaction information (such as scrolling, clicks, and mouse-overs), methods used to browse away from the page, and any phone number used to call us.
2. Grant of License; Restrictions
2.1. Grant of License in Server Programs. Subject to the terms and conditions of this Agreement and the timely payment of all Fees, Licensor hereby grants to Customer a non-exclusive, non-transferable (except pursuant to Section 13.2), non-sublicensable, limited right and license, during the Term, to use the Server Programs and Client Programs as made available by Licensor through the Service, solely pursuant to an Order Form. Customer may only use the Server Programs with the valid user number and password granted to Customer by Licensor pursuant to Section 3.1. Except as set forth in this Section 2.1, no other right or license of any kind is granted by Licensor to the Customer hereunder with respect to the Server Programs.
2.2. Restrictions. Customer hereby acknowledges and agrees that it shall not use the Service for any purpose other than in connection with an Order Form, and that it shall use the Licensed Software and the Service in accordance with all applicable laws, rules, and regulations. Except as expressly provided in Section 2.1, Customer shall not, and shall not permit any third party to, without the prior written consent of Licensor: (a) copy all or any portion of the Licensed Software or the Service; (b) decompile, disassemble or otherwise reverse engineer the Licensed Software or the Service, or any portion thereof, or determine or attempt to determine any source code, algorithms, methods, or techniques used or embodied in the Licensed Software or Service or any portion thereof; (c) modify, translate, or create any Derivative Works based upon the Licensed Software or the Service; (d) distribute, disclose, market, rent, lease, assign, sublicense, pledge, or otherwise transfer the Licensed Software or the Service, in whole or in part, to any third party; (e) remove or alter any copyright, Trademark, or other proprietary notices, legends, symbols, or labels appearing on or in the Licensed Software or the Service; (f) perform, or release the results of, benchmark tests or other comparisons of the Licensed Software or the Service with other software or materials; (g) permit the Licensed Software to be used for or in connection with any facility management, service bureau, or time-sharing purposes, services, or arrangements, or otherwise used for processing data or other information on behalf of any third party; (h) incorporate the Licensed Software or any portion thereof into any other compilations, materials, products, or services, or use the Licensed Software for production purposes; or (i) use the Licensed Software for any purpose other than in accordance with the terms and conditions of this Agreement. In the event of any violation of this Section 2.2, Licensor may immediately terminate this Agreement, and shall be entitled to equitable relief in accordance with Section 8.4.
2.3. Grant of License in Customer Materials. Customer hereby grants to Licensor a worldwide, royalty-free, non-exclusive, limited, nontransferable (except pursuant to Section 13.2) right and license to: (a) use, reproduce, distribute, transmit, perform (publicly, digitally, or otherwise), display (publicly or otherwise), and make derivative works of any and all data, information, content, and other materials prepared by Customer through the use of, stored by Customer in connection with, or transmitted by Customer by or through, the Licensed Software and/or the Service (the “Customer Materials”) for purposes of making the Licensed Software and the Service available to Customer and for analytic, statistical, security, quality control, and other business purposes; and (b) sublicense the foregoing rights to Licensor’s designees. Customer represents and warrants to Licensor that it has the right to grant the foregoing licenses in the Customer Materials.
2.4. Grant of License in Website Data. Licensor hereby grants to Customer a worldwide, royalty-free, non-exclusive, limited, nontransferable (except pursuant to Section 13.2) right and license to use, reproduce, modify, translate, or analyze such Website Data to market and promote the sale of Travel Packages to an Event, which is the subject of an Order Form. ALL WEBSITE DATA IS PROVIDED "AS IS." LICENSOR MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY WEBSITE DATA.
3.1. Hosting. During the Term, Licensor and/or its designees shall host and maintain the Server Programs and the Service. Licensor and/or its designees shall use commercially reasonable efforts to provide, in connection with the foregoing obligations: system security; backup of Customer Materials stored on the Service, and generally uninterrupted service, provided that Customer acknowledges that Licensor uses third parties to host its platform, and as such agrees that Licensor shall have no liability for unavailability of the Services or Licensed Software related to (a) third party service providers failing to provide service, or (b) scheduled maintenance.
3.2. Sales Authorization. The Customer authorizes and appoints the Licensor to act as the Customer’s commercial agent to conclude the sale of Travel Packages for the Event, subject to an Order Form, including the prices set out in the Pricing Table in this Order Form, on the Customer’s behalf via the Server Programs and Client Programs, subject to the Licensor’s then applicable terms of service. In this limited capacity, the Licensor is neither the customer nor the seller (or reseller) of the Event. Finally, the Licensor may in its sole discretion investigate or decline to process any transaction involving any item purchased via the Server Programs and Client Programs, for example, due to actual or reasonably suspected fraud.
3.3. Updates, Maintenance, and Technical Support. During the Term, Licensor shall make available to Customer Updates as they are made generally available by Licensor to its other, similarly situated customers. Any Update made available by Licensor hereunder shall be deemed part of the Licensed Software and shall be subject to the terms and conditions of this Agreement. Customer acknowledges that to the extent Licensor licenses some or all of the Licensed Software and/or other components of the Service from third party vendors (“Vendors”), such Vendors, and not Licensor, are responsible for creating Updates.
4. Statements of Work
4.1. The Licensed Software and Services shall only be used in connection with Event(s) specified in an Order Form. Licensor and Customer shall from time to time during the Term enter into one or more mutually Order Form(s) that specify the Event(s) for which Customer desires to use the Licensed Software and Services. Customer agrees to not use the Licensed Software or Services other than the sale of Travel Packages subject to an Order Form. It is anticipated that in addition to the Customer utilizing the Licensed Software, the Customer may use the Licensor’s network of affiliate sales personnel and relationships with a hotel, transportation, and entertainment providers as provided in an Order Form.
5. Fees and Payment
5.1. Fees. Customer shall pay to Licensor the fees set forth in each Order Form according to the terms of such Order Form (the “Fees”). Payment will be made by deducting the Fees from the revenue Licensor collects from third parties that register for Travel Packages subject to an Order Form.
5.2. Revenue Collection. Customer acknowledges and agrees that (i) Licensor shall collect all payments from third parties that register for Travel Packages subject to an Order Form, (ii) if any such third party pays Customer directly, Customer shall promptly, and in any event within three (3) business days, remit such payment to Licensor with sufficient detail so that Licensor can properly account for such funds (Section 5.2(i) and (ii), collectively, “Travel Package Revenue”), and (iii) Licensor will disburse Travel Package Revenue per the Event’s Order Form.
5.3. Interest. Any Fees and other amounts payable by Customer to Licensor hereunder or any Order Form which remain overdue for thirty (30) days or longer, other than due to Licensor’s failure to deduct such Fees or amounts from sums collected by Licensor for any given Event, shall be subject to interest equal to the lesser of one and one-half percent (1.5%) per month and the maximum amount permitted by law, calculated daily.
5.4. Taxes. Customer shall be responsible for all determinations with respect to the collection, payment, and reporting of any sales, use, or other similar taxes applicable to the sale of the Travel Packages or products pursuant to this Agreement. Customer shall give Licensor reasonable advance notice if any such taxes are required to be collected by Licensor and its agents in connection with the sale of Travel Packages or products pursuant to this Agreement. When Licensor has the legal obligation to pay or collect any such taxes and charges, the appropriate amount will be included in Net Profit, excluding taxes on the income of the Licensor, and paid by the Customer within thirty (30) days of the date of invoice. Licensor and their Affiliates and agents shall have the right to deduct and withhold taxes from any payments to be made hereunder if such withholding is required by applicable law. To the extent that any of the aforementioned amounts are so withheld and paid over to the appropriate taxing authority, such withheld amounts shall be treated for all purposes of this Agreement as having been delivered and paid to the recipient of payments in respect of which such deduction and withholding was made. Customer will provide Licensor with official receipts issued by the appropriate taxing authority or such other evidence as is reasonably requested by Licensor to establish that such taxes have been paid.
During the pendency of any Event subject to an Order Form and thereafter for a period of three (3) months after the Close-Out for such Event (the “Audit Period”), the Customer may, at its own expense, audit the books and records of Licensor insofar as they relate to the payments due pursuant to this Agreement or any Order Form, in order to verify the Fees paid and expenses incurred pursuant to any given Order Form. Any such audit shall be conducted with at least ten (10) days advance written notice to Licensor and only during Licensor’s business hours in such manner as not to unreasonably interfere with the normal business activities of Licensor. Licensor shall reasonable cooperate with any such audit. Customer must notify Licensor in writing of any claim relating to the amount of Fees paid and expenses incurred for Travel Packages before the end of the Audit Period for such Event, or forever after be barred from bringing any claim against Licensor relating to such Event. Any such notification shall detail with specificity the basis for the claim. The parties shall in good faith try to resolve expeditiously any such claim before filing a lawsuit.
7. Proprietary Rights
As between Licensor and Customer, Licensor shall retain all right, title, and interest, including, without limitation, (i) all Intellectual Property Rights, in and to the Licensed Software and the Service and any portions thereof, including, without limitation, any copy or Derivative Work of the Licensed Software or Service (or any portion thereof) and any Updates thereto and (ii) Customer Data. Customer agrees to take any action reasonably requested by Licensor to evidence, maintain, enforce, or defend the foregoing. Customer shall not take any action to jeopardize, encumber, limit, or interfere in any manner with Licensor’s or its licensors’ ownership of and rights with respect to the Licensed Software or Materials, or any Derivative Work or Update thereof or thereto. Customer shall have only those rights in and to the Licensed Software and Service and any Derivative Work or Update thereto as are expressly granted to it under this Agreement.
8. Confidential Information; Non-Disclosure
8.1. Confidential Information. Customer acknowledges that, in the course of using the Licensed Software and Service and exercising its rights under this Agreement, it may obtain confidential information relating to the Licensed Software, the Service, or Licensor and its Vendors or other licensors (“Confidential Information”). Such Confidential Information shall, as between Customer and Licensor, belong solely to Licensor and shall include, without limitation, the Licensed Software and the Service (including any and all Derivative Works and Updates), all identification numbers and passwords granted in connection with this Agreement, the existence of any terms of this Agreement, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, formulas, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and functional specifications, product requirements, problem reports, performance information, documents, and other technical, business, product, marketing, third party customer, and financial information, plans, and data.
8.2. Use and Disclosure Restrictions. Customer hereby acknowledges and agrees that the Confidential Information constitutes and contains valuable proprietary information and trade secrets of Licensor, and embodies substantial creative efforts and confidential information, ideas, and expressions. Customer agrees: (a) to protect the Confidential Information from unauthorized dissemination and use; (b) to use the Confidential Information only for the performance of Customer’s obligations and in connection with the exercise of Customer’s rights hereunder; (c) not to disclose or otherwise provide to any third party, without the prior written consent of Licensor, any Confidential Information or any part or parts thereof; (d) to undertake whatever action is necessary to prevent or remedy (or authorize Licensor to do so in the name of Customer) any breach of Customer’s confidentiality obligations set forth herein; (e) not to remove or destroy any proprietary or confidential legends or markings placed upon or contained within the Licensed Software or the Service, or on any other Confidential Information provided to Customer by Licensor; and (f) not to develop any other materials, products, or services containing any of the concepts or ideas contained in the Licensed Software or Service or any other Confidential Information.
8.3. Exclusions. The foregoing restrictions pertaining to the Confidential Information (other than as set forth in Section 8.2(f)) shall not apply with respect to any Confidential Information that: (a) was or becomes publicly known through no fault of Customer; (b) was known by Customer before receipt from Licensor, as evidenced by Customer’s written records, (c) becomes known to Customer without confidential or proprietary restriction from a source other than Licensor that does not owe a duty of confidentiality to Licensor with respect to such Confidential Information; or (d) is independently developed by Customer without the use of the Confidential Information. In addition, Customer may use or disclose Confidential Information to the extent (i) expressly approved by Licensor in writing and (ii) Customer is legally compelled to disclose such Confidential Information, provided, however, before any such compelled disclosure Customer shall cooperate fully with Licensor in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information.
8.4. Equitable Relief. Customer acknowledges and agrees that due to the unique nature of Licensor’s Confidential Information, there can be no adequate remedy at law to compensate Licensor for the breach of this Section 8 or of Section 2 that any such breach will allow Customer or third parties to compete unfairly with Licensor resulting in irreparable harm to Licensor that would be difficult to measure; and, therefore, that upon any such breach or threat thereof, Licensor shall be entitled to injunctive and other appropriate equitable relief (without the necessity of proving actual damages or of posting a bond), in addition to whatever remedies it may have at law, hereunder, or otherwise.
8.5. Non-Disparagement. Neither party shall commit any action or make any omission (including, but not limited to, posting on social media) that deceives or misleads the public, damages or impairs the reputation or value of the other party, or would lead to or reasonably be expected to lead to unwanted or unfavorable publicity of the other party. The foregoing expressly includes, without limitation, communications appearing on the Internet via blogging and/or social networking sites such as but not limited to Facebook, Instagram, Snapchat, YouTube, and Twitter.
9. Representations and Warranties
9.1. Mutual Representation. Each party represents and warrants to the other party that the execution, delivery, and performance of this Agreement does not and shall not contravene or constitute a default under, and is not and shall not be inconsistent with, any judicial decree or order, or any contract, agreement, or other undertakings, applicable to such party.
9.2. Limited Warranty. Subject to the limitations set forth in this Agreement, Licensor represents and warrants to Customer that the Licensed Software, when used in accordance with an Order Form, shall throughout the Term perform as required in such Order Form. If Customer finds what it reasonably believes to be a failure of the Licensed Software to substantially perform as required in such Order Form and provides Licensor with a written report that describes such failure in sufficient detail to enable Licensor to reproduce such failure, Licensor shall use commercially reasonable efforts to correct or provide a workaround for such failure at no additional charge to Customer. LICENSOR MAKES NO WARRANTY THAT ALL ERRORS, FAILURES, OR DEFECTS SHALL BE CORRECTED, OR THAT ACCESS TO OR USE OF THE SERVICE SHALL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY THE LICENSOR, ITS AGENTS, OR ITS EMPLOYEES, SHALL CREATE ANY WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT. Except as provided in Section 3.3, this Section 9.2 states the entire liability of Licensor and the sole and exclusive remedy of Customer with respect to any express or implied warranties hereunder or otherwise in connection with this Agreement or any Order Form.
9.3. Exclusive Warranty.
THE EXPRESS WARRANTY SET FORTH IN SECTION 9.2 CONSTITUTES THE ONLY WARRANTY MADE BY THE LICENSOR WITH RESPECT TO THE LICENSED SOFTWARE, THE SERVICE, AND ANY OTHER SUBJECT MATTER OF THIS AGREEMENT. LICENSOR MAKES NO OTHER, AND HEREBY DISCLAIMS ALL OTHER, REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, WITH RESPECT TO THE LICENSED SOFTWARE, THE SERVICE, OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT. LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABLE QUALITY, AND NONINFRINGEMENT, AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. LICENSOR DOES NOT WARRANT THAT ANY USE OF OR ACCESS TO THE LICENSED SOFTWARE OR THE SERVICE SHALL BE ERROR-FREE OR SECURE, OR THAT OPERATION OF THE LICENSED SOFTWARE OR THE SERVICE SHALL BE UNINTERRUPTED, AND HEREBY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION THEREWITH. This Section 9.3 shall be enforceable to the fullest extent allowed by applicable law.
9.4. Defects Not Covered by Warranties. Licensor shall have no obligations under Section 9.2 if any nonconformance or failure of, or error in, the Licensed Software is caused by: (a) use of any attachment, feature, hardware, software, or device in connection with the Licensed Software or the Service; (b) transportation, neglect, or misuse of the Licensed Software or the Service, or any use of the Licensed Software or the Service that is not in accordance with this Agreement; (c) alteration, modification, or enhancement of the Licensed Software or the Service, except as may be performed by Licensor; or (d) failure to provide a suitable installation or use environment for all or any part of the Licensed Software or the Service.
10. Prohibited Activities
10.1. Non-Solicitation. In order to protect Licensor’s Confidential Information and goodwill, during the Term and for one year following the termination or expiration of this Agreement (the “Restricted Period”), Customer shall not, directly or indirectly, in any manner, other than for the benefit of Licensor, (a) call upon, solicit, divert, take away, accept or conduct any business from or with any of Licensor’s customers, prospective customers or suppliers, or (b) solicit, entice, attempt to persuade any of Licensor’s employees or consultants to leave Licensor or cease working with Licensor for any reason or otherwise participate in or facilitate the hire, directly or through another entity, of any person who is employed or engaged by Licensor or who was employed or engaged by Licensor within six months of any attempt to hire such person.
10.2. Customer Non-Competition. During the Restricted Period Customer shall not, directly or indirectly, (i) in any manner whatsoever engage in any capacity with any business or in an individual capacity to provide services similar to the Services or the Licensed Software or any travel-related services, including but not limited to travel packages including hotel, transportation and/or entertainment, directly-to-consumers (the “Licensor’s Business”), for its benefit or the benefit of any person or entity other than Licensor; or (ii) have any interest as owner, sole proprietor, stockholder, partner, lender, director, officer, manager, employee, consultant, agent or otherwise in any business competitive with the Licensor’s Business.
10.3. Non-Circumvent. Customer hereby agrees the Licensor may introduce (whether by written, oral, data, or other forms of communication) Customer to one or more opportunities and/or persons relating directly or indirectly to the Services or Licensor’s Business, including, without limitation, hotel, nightclub, transportation, concierge, and other travel suppliers, organizers, providers and/or operators, natural persons, corporations, limited liability companies, partnerships, unincorporated businesses, sole proprietorships and similar entities (collectively, the “Licensor Contacts”). The identity of the Licensor Contacts and all other information concerning Licensor Contacts (including without limitation, all mailing information, phone, and fax numbers, email addresses, and other contact information) introduced hereunder are the property of the Licensor, and shall be treated as trade Licensor’s secrets and Confidential Information by Customer and its affiliates, officers, directors, shareholders, employees, agents, representatives, successors and assigns. Customer shall not use or disclose such information, except as permitted under this Agreement, unless Licensor is directly and actively involved, and never without Licensor’s prior written approval. Customer further agrees that, without the prior written approval of the Licensor, neither it nor its employees, affiliates or assigns, shall enter into, or otherwise arrange (either for it/him/herself, or any other person or entity) any transaction or business relationship, contact any person regarding the Licensor Contacts, either directly or indirectly, or any of its affiliates, or accept any transaction, or compensation except directly through Licensor. Licensor is relying on Customer’s assent to these terms and its intent to be bound by the terms by evidence of its signature hereto. Without Customer’s signed assent to these terms, Licensor would not enter this Agreement or introduce any Licensor Contact or disclose any Confidential Information to Customer.
10.4. Extension of Restricted Period. Customer acknowledges and agrees that if it violates any of the provisions of this paragraph 10, the running of the Restricted Period will be extended by the time during which it engages in such violation(s).
11. Limitation of Liability and Indemnification
11.1. Limited Remedy. TO THE EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, OR INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND OR OTHER ECONOMIC LOSS ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, HOWEVER, CAUSED.
11.2. Maximum Liability. Notwithstanding anything in this Agreement to the contrary or the failure of essential purpose of any limited remedy or limitation of liability, Licensor’s entire liability arising from or relating to this Agreement or the subject matter hereof, under any legal theory (whether in contract, tort, indemnity or otherwise), shall not exceed the lesser of (a) $50,000 and (b) the Fees received during the six month period immediately preceding the action that gave rise to the liability.
11.3. Indemnification. Each party (the “Indemnifying Party”) will indemnify, hold harmless and defend the other party and its officers, directors, agents, employees, licensees, and invitees (collectively the “Indemnified Persons”) from and against any and all costs, losses, liabilities, and expenses (including insurance deductibles and including reasonable outside attorney’s fees and expenses) actually and reasonably incurred by an Indemnified Person to the extent related to the Indemnifying Party’s activities or omissions under this Agreement. Notwithstanding anything to the contrary in this Section 11.2, the Indemnifying Party has no indemnification obligations with respect to any claim or loss to the extent caused by the negligence or willful misconduct of any Indemnified Person.
12. Term and Termination
12.1. Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and continue for an initial period of one (1) year therefrom, and shall automatically renew for successive one (1) year periods unless either party notifies the other of its intention not to renew prior to ninety (90) days before the end of the then-current term.
12.2. Termination for Default. If either party materially defaults in any of its obligations under this Agreement, the non-defaulting party, at its option, shall have the right to terminate this Agreement by written notice to the other party unless, within thirty (30) calendar days after receiving written notice of such default, the defaulting party remedies the default, or, in the case of a default which cannot with due diligence be cured within thirty (30) calendar days, the defaulting party institutes within the thirty (30) day period substantial steps necessary to remedy the default and thereafter diligently prosecutes the same to completion. Notwithstanding anything herein to the contrary, in the event Customer breaches Sections 2.2 and/or 8 of this Agreement, Licensor may immediately terminate this Agreement upon notice to Customer. Customer shall notify Licensor within twenty-four (24) hours of Customer becoming aware of any breach (other than by Licensor) of the terms and conditions of this Agreement, including, without limitation, any breach of Sections 2.2 or 8.
12.3. Termination for Bankruptcy. Either party may terminate this Agreement if the other party (a) becomes insolvent; (b) fails to pay his, her, or its debts or perform its obligations in the ordinary course of business as they mature; (c) is declared insolvent or admits in writing him, her or its insolvency or inability to pay its debts or perform its obligations as they mature; or (d) becomes the subject of any voluntary or involuntary proceeding in bankruptcy, liquidation, dissolution, receivership, attachment, or composition, or makes a general assignment for the benefit of creditors, provided that, in the case of an involuntary proceeding, the proceeding is not dismissed with prejudice within sixty (60) days after the institution thereof.
12.4. Effect of Termination. Upon the expiration or termination of this Agreement, all rights and licenses granted to Customer hereunder shall immediately terminate, except if an Event subject to an Order Form is to occur after the rightful termination of this Agreement, each Party shall continue to have the same obligations due under this Agreement specifically as it relates solely to such Event(s) and until such Event(s) is concluded and Fees (if any) have been paid per the Order Form. Further, within ten (10) days after any termination or expiration of this Agreement, Customer shall, at its sole expense, return to Licensor (or destroy, at Licensor’s sole election) all Licensed Software and Confidential Information (and all copies and extracts thereof) than in the possession or under the control of Customer. Customer shall furnish to Licensor an affidavit signed by an officer of Customer certifying that, to the best of its knowledge, such delivery or destruction has been fully effected. Termination of this Agreement by either party shall not act as a waiver of any breach of this Agreement and shall not act as a release of either party from any liability for breach of such party’s obligations under this Agreement. Neither party shall be liable to the other for damages of any kind solely as a result of terminating this Agreement in accordance with its terms. Either party’s termination of this Agreement shall be without prejudice to any other right or remedy that it may have at law or in equity, and shall not relieve either party of breaches occurring before the effective date of such termination. The provisions of Sections 1 (“Définitions”), 2.2 (“Restrictions”), 2.3 (“Grant of License in Customer Materials”), and Section 5 (“Fees and Payment”) (with respect to amounts accrued but as-yet unpaid), 6 (“Audit”), 7 (“Proprietary Rights”), 8 (“Confidential Information; Non-Disclosure”), 9 (“Representations and Warranties”), 10 (“Prohibited Activities”), 11 (“Limitation of Liability”), 12 (“Term and Termination”) and 13 (“General Provisions”) shall survive the expiration or any termination of this Agreement.
13. General Provisions
13.1. Notices. Any notice, request, demand, or other communication required or permitted hereunder shall be in writing, shall reference this Agreement, and shall be deemed to be properly given: (a) when delivered personally; (b) when sent by email; (c) seven (7) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) two (2) business days after deposit with a nationally recognized private industry express courier (e.g., Federal Express or DHL), with written confirmation of receipt. All notices shall be sent to the address set forth below (or to such other address as may be designated by a party by giving written notice to the other party pursuant to this Section 13.1):
If to Customer:
The address set forth in the latest Order Form
If to Licensor:
Fuse Technologies, Inc
7165 Rafael Ridge Way
Henderson, Nevada 89119
13.2. Assignment. This Agreement may not be assigned, in whole or part, whether voluntarily, by operation of law, or otherwise, by Customer without the prior written consent of Licensor. Subject to the preceding sentence, the rights and liabilities of the parties hereto are binding on, and shall inure to the benefit of, the parties and their respective successors and permitted assigns. Any attempted assignment other than in accordance with this Section 13.2 shall be null and void.
13.3. Governing Law, Jury Waiver, and Venue. This Agreement shall be governed by, construed, and enforced, in accordance with the laws of the State of Nevada without regard to conflict of law principles. The parties agree that any and all disputes, controversies, or claims of whatever nature arising out of or relating to this Agreement or the breach thereof shall be only resolved by a state or federal court in the State of Nevada and the county of Clark, and the parties hereby consent to the exclusive jurisdiction of such courts in any action or proceeding arising under or brought to challenge, enforce, or interpret any of the terms of this Agreement, and expressly waive any claim of forum non-conveniens in connection therewith. BY ENTERING INTO THIS AGREEMENT, THE LICENSOR AND CUSTOMER EACH KNOWINGLY AND VOLUNTARILY WAIVE ANY AND ALL RIGHTS THEY HAVE UNDER LAW TO A TRIAL BEFORE A JURY.
13.4. Construction. This Agreement has been negotiated by the parties and their respective counsel. This Agreement shall be interpreted fairly in accordance with its terms and without any construction in favor of or against either party.
13.5. Attorneys’ Fees. If any legal action, including, without limitation, an action for injunctive relief, is brought relating to this Agreement or the breach hereof, the prevailing party in any final judgment, or the non-dismissing party in the event of a dismissal without prejudice, shall be entitled to the full amount of all reasonable expenses, including all court costs and actual attorney fees paid or incurred in good faith.
13.6. Waiver. The waiver by either party of a breach of or a default under any provision of this Agreement shall be in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
13.7. Severability. If the application of any provision of this Agreement to any particular facts or circumstances shall be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement shall not in any way be affected or impaired thereby, and (b) such provision shall be enforced to the maximum extent possible to effect the intent of the parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.
13.8. Relationship of the Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture, partnership, agency, employment, or fiduciary relationship between the parties. Neither party, nor either party’s agents, have any authority of any kind to bind the other party in any respect whatsoever, and the relationship of the parties is, and at all times shall continue to be, that of independent contractors.
13.9. Force Majeure. Except for the payment of monies due hereunder, neither party shall be responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including, without limitation, any foreign or domestic embargo, product detention, seizure, an act of God, fire, flood, storm, explosion, riot, strike, insurrection, pandemic and/or public health crisis, mass shooting, an act of terrorism, a continuance of war, error in the coding of electronic files, Internet or other network “brownouts” or failures, power failures, the novelty of product manufacture or other unanticipated product development problems, acts of civil and military authorities or the passage or enactment of any law or ordinance, regulation, ruling or order (each a “Force Majeure Event”). Subject to the provisions herein, a party’s performance of its obligations affected by Force Majeure Events will be suspended for the duration of such Force Majeure Event. If any Force Majeure Event prevents a party’s performance for thirty (30) days or more, either party may terminate this Agreement without any further liability, except for any outstanding payments for obligations fulfilled by the party that are outstanding before the date of termination.
13.10. Public Announcements. Customer shall cooperate with Licensor so that Licensor may issue a press release concerning this Agreement; provided, however, Licensor may not release any such press release without the prior approval of Customer (which shall not be unreasonably withheld, delayed, or conditioned). Licensor shall have the right to use Customer’s name as a customer reference on Licensor’s customer lists.
13.11. U.S. Government Rights. If the Customer is or is entering into this Agreement on behalf of, any agency or instrumentality of the United States Government, the Licensed Software is “commercial computer software” and “commercial computer software documentation”, and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction, and disclosure of the Licensed Software are governed by the terms of this Agreement.
13.12. Export Controls. Customer shall abide by all applicable export laws and regulations in its use of the Licensed Software and the Service. None of the Licensed Software, and no part of the Service, may be downloaded or otherwise exported or re-exported (a) into any country for which the United States has a trade embargo, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. Customer represents and warrants that he or she is not located in, under the control of, or a national or resident of any such country or on any such list.
13.13. Captions and Section Headings. The captions and Section and paragraph headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.
13.14. Counterparts. This Agreement may be executed in one or more counterparts, with the same effect as if the parties had signed the same document. Each counterpart so executed shall be deemed to be an original, and all such counterparts shall be construed together and shall constitute one Agreement.
13.15. Entire Agreement; Amendment; Hierarchy. This Agreement, including the Exhibit(s), attached hereto, and each Order Form constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes (a) all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, agreements, and communications, whether oral or written, between the parties relating to the subject matter of this Agreement; and (b) all past courses of dealing and industry custom. No amendment or modification of any provision of this Agreement (including exhibits) or any Order Form shall be effective unless in writing and signed by a duly authorized signatory of the Licensor and Customer. To the extent that the terms and conditions of any Order Form differ from or conflicts with the term of this Agreement, the terms of the Order Form shall control the interpretation and any conflict resolution thereof.
Licensed Software. The following software products shall be included in the Licensed Software:
- Client Program(s): White-labeled booking website
- Server Program(s): Fuse Technologies, Inc. booking software.