WHEREAS, Liquifusion Studios, Inc. (“Liquifusion”) develops, maintains, and licenses access to the Reservoir System (“Reservoir System”). The Reservoir System includes software services and access to software libraries that assist with the development of third party websites (each, a “User Website”) and each such User Website is hosted on the Reservoir Website. The website development and hosting services are sometimes collectively referred to as the “Services”; and
WHEREAS, Customer wishes to use the Reservoir System and obtain such related services, and Liquifusion desires to provide such services to Customer; and
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.1 Definitions. For purposes of this Agreement, the definitions set forth below shall be applicable:
“Authorized User” means an individual who is an employee or contractor of Customer who is acting within the scope of a formal employment or agency relationship and who agrees to be bound by the terms of this Agreement.
“Front End Code” means the user interface display and usability platform. This includes but is not limited to the layout, color scheme, HTML pages and source code, etc.
“Back End Code” means the Reservoir System specific source code. This includes but is not limited to the database schema, field definitions, table relationships, work flow management, application methodology and interface coding etc.
“Customer Materials” means the graphic design of the Customer User Website and any data, images or content provided by the Customer.
“Liquifusion Materials” means the Reservoir System and all other software which is delivered or made available to Customer under this Agreement.
2.1 GRANT OF LICENSE. SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, LIQUIFUSION HEREBY GRANTS TO CUSTOMER AND CUSTOMER HEREBY ACCEPTS A NONEXCLUSIVE, NONTRANSFERABLE LICENSE TO ESTABLISH ONLINE ACCESS TO THE RESERVOIR SYSTEM TO CREATE A USER WEBSITE AND OTHER RELATED BUSINESS FUNCTIONS AS THE SOFTWARE IS DESIGNED TO PERFORM.
2.2 Title. Liquifuision shall retain all right, title, and interest (including all copyrights, patents, service marks, trademarks and other intellectual property rights) in and to the Reservoir System, including any and all updates, enhancements, customizations, revisions, modifications, future releases and any other changes thereto, and all related information, material and documentation, etc. Except for the license granted pursuant to this Agreement, Customer shall not acquire any interest in the Reservoir System or any other services or materials, or any copies or portions thereof, provided by Liquifusion pursuant to this Agreement.
2.3 Customer shall retain all right, title and interest (including all worldwide rights to copyrights, patents, service marks, trademarks and other intellectual property rights) in and to the Customer Materials in all forms. Customer hereby grants Liquifusion a limited, non-exclusive, royalty free, revocable license to use, copy, operate, process, and modify any such Customer Materials provided to Liquifusion solely for the purposes of fulfilling Liquifusion’s obligations under this Agreement. Liquifusion shall not acquire any right, title or interest of any nature whatsoever in any Customer Materials except to use them in connection with the provision of the Services hereunder.
2.4 Liquifusion intellectual property ownership and restrictions to product use. Liquifusion shall retain all rights to proprietary application development, business and technical methodologies, implementation, business processes and all other aspects of Liquifusion business, application(s) and services. Under no circumstances, will the Customer be permitted to use any Front or Back End Code to their advantage (or) the advantage of their partner company’s (or) potential partner company’s outside of the intended design and implementation for which the original service subscription agreement was executed. The technology and business methodologies are proprietary and the sole property of Liquifusion. Any technology or business replication of any aspect of the application or services provided used for the gain of the Customer or above mentioned business partners or for the use of any level of a competitive nature regarding these proprietary elements is strictly prohibited.
2.5 Usage Thresholds. Customer agrees to the following thresholds:
2.5.1 Hoover Dam plan:
Active Members: unlimited
Media Storage Space: 20GB
Discussion Forums: unlimited
Member Groups: unlimited
2.5.2 Olympic Pool plan:
Active Members: Up to 250 members
Media Storage Space: 10GB
Discussion Forums: 5 forums
Member Groups: 5 member groups
Exceeding the established usage thresholds may require the Customer to upgrade to the next higher Reservoir plan.
3.1 Fees. In consideration of the license granted pursuant to Section 2.1, and for the Services, Customer shall pay Liquifusion the fees as specified on the Customer’s original Subscription Agreement (the "Fees"). Liquifusion shall invoice Customer for the Licensing, Setup, and Implementation Fees immediately upon execution of this Agreement. These fees shall be paid at the execution of this agreement. Thereafter, Liquifusion shall invoice Customer on a pre-paid monthly basis for monthly membership charges. All charges for Fees shall be due and payable to Liquifusion within thirty-days (30) of the date of each invoice. Any charges not paid when due are subject to interest at a rate equal to the lesser of: (i) one and one-half percent (1.5%) per month; or (ii) the maximum interest rate allowed by applicable law.
4.1 Confidentiality. Each party agrees that the company associated Data (referred to herein as the “Customer Confidential Information”) and any and all materials, documentation and information pertaining to the Reservoir System and the Services (referred to herein collectively as the “Liquifusion Confidential Information”) is the confidential property of Customer and Liquifuison, respectively (Customer Confidential Information and Liquifusion Confidential Information referred to hereinafter collectively as the “Confidential Information”). The party receiving the Confidential Information, including such party’s employees, officers, directors and agents, (collectively, the “Receiving Party”) shall hold in confidence all Confidential Information and shall not disclose or distribute Confidential Information, or any portion thereof, in any form or format to any person except on a strict “need to know” basis for the purpose of performance of this Agreement, or as required by valid legal process. Customer agrees it shall not copy, alter, decompile, disassemble, reverse engineer, or otherwise modify (except with Liquifusion’s prior written consent) or directly or indirectly disclose any Liquifusion Confidential Information. Confidential Information under this Section 4 shall not include information that: (i) is or has become publicly available without restriction through no fault of the Receiving Party; (ii) has been received without restriction from a third party lawfully in possession of such information, or (iii) receiving party lawfully had in its possession at the time of disclosure, as established by written documentation in existence at the time.
4.2 Cardholder Data Retention Policy. Customer agrees that all credit card information will be stored the minimum amount of time according to that which is required for business, legal, and/or regulatory purposes.
5.1 Term. The term of this Agreement begins on the Effective Date and shall continue for a period of one (1) year unless earlier terminated as provided for in this Section 5.
5.2 Termination Without Cause. Either party may terminate this Agreement with or without cause by providing 30 days written notice to the other party.
5.3 Fees; Return of Data. In the event of termination or expiration of this Agreement, all Fees due and payable to Liquifusion must be paid in full. At Liquifusion’s election, upon its receipt of all such Fees, or after notice of intent to terminate has been received from the Customer by Liquifusion, Liquifusion will make all company Data available for a period of 30 days and then remove Customer from the production environment.
5.4 Standard Marketing. Customer reserves the right to use Liquifusion name and credentials in an appropriate and acceptable manner for standard marketing promotions. Equally, Liquifusion reserves the right to use Customer name and credentials in an appropriate and acceptable manner for standard marketing promotions. Acceptable and standard marketing promotions include but are not limited to: Client listings, press releases, surveys, interviews, reputable business publications, television and web site presentation and promotion etc.
6.1 DISCLAIMER OF WARRANTIES. THIS AGREEMENT IS AN AGREEMENT FOR SERVICES. NOTWITHSTANDING THE FOREGOING, LIQUIFUSION SPECIFICALLY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE RESERVOIR SYSTEM AND SERVICES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, NO INFRINGEMENT, UNINTERRUPTED SERVICE OR FITNESS FOR A PARTICULAR PURPOSE.
6.2 LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF DATA, LOSS OF BUSINESS OR OTHER LOSS ARISING OUT OF OR RESULTING FROM THIS AGREEMENT EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY REGARDLESS OF THE NEGLIGENCE OR OTHER FAULT OF THE PARTY AND REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LEGAL LIABILITY. Notwithstanding the foregoing, in no event shall Liquifusion’s cumulative liability under this Agreement exceed the amount actually paid by Customer to Liquifusion in the immediately preceding six (6) month period.
6.3 Customer Warranty. Customer represents and warrants that it shall, at all times, comply with, and shall remain solely responsible for compliance with, all applicable Federal, State and Local laws and regulations. Customer shall indemnify and hold Liquifusion harmless from and against any and all damages, costs, losses, claims, causes of action and lawsuits and expenses, including reasonable attorneys’ fees, relating to breach of the aforementioned representation and warranty.
7.1 ASSIGNMENT OF AGREEMENT. CUSTOMER SHALL NOT ASSIGN ITS RIGHTS OR DUTIES UNDER THIS AGREEMENT WITHOUT THE PRIOR WRITTEN CONSENT OF LIQUIFUSION. THIS AGREEMENT SHALL INURE TO THE BENEFIT OF THE AUTHORIZED SUCCESSORS AND ASSIGNS OF THE PARTIES.
7.2 Independent Contractor. Liquifusion is an independent contractor, and this Agreement does not in any way create the relationship of principal and agent, franchisee, joint venture, or partnership between the parties. Neither party shall be liable for any debts or obligations of the other.
7.3 Entire Agreement; Precedence. This Agreement and Exhibit(s) (which may be attached hereto and incorporated herein by reference) contain the entire understanding between the parties and supersede any prior verbal or written agreement between the parties with respect to the subject matter hereof. No amendment or modification of the Agreement shall be valid, unless made in writing and signed by both parties hereto. In the event of any inconsistency or conflict between the terms and conditions of this Agreement and any term or condition of any Exhibit hereto, the terms and conditions of this Agreement shall, in all instances, govern and control.
7.4 Governing Law. This Agreement shall be governed by the laws of the State of Florida without giving effect to conflict of laws principles.
7.5 Arbitration. Any controversy or claim arising out of this Agreement, or the breach, termination, or invalidity of this Agreement shall be settled by arbitration in the city of Tallahassee, Florida in accordance with then-governing rules of the American Arbitration Association. The arbitrator(s) shall be bound by the Agreement and shall interpret the License in accordance with the applicable laws of the United States and the internal laws of the state of Florida. Any award, order, or judgment made pursuant to such arbitration shall be deemed final and shall be entered and enforced in any court of competent jurisdiction. The Parties agree to reimburse the prevailing Party’s reasonable attorneys’ fees, court costs, and all other expenses, in addition to any other relief to which the prevailing Party may be entitled.
7.6 Force Majeure. Neither party hereto shall be in default hereunder by reason of its delay or failure to perform any of its obligations hereunder for any event, circumstance, or cause beyond its control such as, but not limited to, acts of God, strikes, lock-outs, general governmental orders or restrictions, war, threat of war, hostilities, revolution, acts of terrorism, riots, epidemics, fire, earthquake, or flood. The performance of this Agreement shall then be suspended for as long as any such event shall prevent the affected party from performing its obligations under this Agreement.
7.7 Invalidity; Waivers. If any provision or portion of this Agreement is held invalid, illegal, void or unenforceable as it appears in this Agreement by reason of any rule of law, administrative or judicial provision or public policy, then such provision shall be construed as being enforceable to the extent such rule of law, administrative or judicial provision or public policy allows. All other provisions of this Agreement shall nevertheless remain in full force and effect. Neither of the parties shall be deemed to have waived any of its rights, powers or remedies hereunder unless the waiving party expresses such a waiver in writing.
7.8 Survival of Terms. Notwithstanding the expiration or earlier termination of this Agreement for any reason, the provisions of Articles 4, 6, 7 and Sections 2.2 and 2.3 of this Agreement shall remain in full force and effect.
7.9 HEADINGS; COUNTERPARTS. PARAGRAPH HEADINGS USED HEREIN ARE FOR CONVENIENCE PURPOSES ONLY AND ARE NOT INTENDED TO BE, NOR SHALL THEY BE, USED AS AN AID IN INTERPRETATION. THIS AGREEMENT MAY BE SIGNED IN COUNTERPARTS.