SPECIAL SOFTWARE LICENSE AGREEMENT
THIS AGREEMENT is entered into on this 13th day of September, 2018 by and between ThomCo Enterprises Inc. ("Company") and Jelly What, LLC ("Jelly What").
WHEREAS, Jelly What is a developer and the owner of special software ("Software") that can be adopted to special uses for the working with Company's customers; and
WHEREAS, Jelly What has the capability of tailoring it Software to meet the unique requirements of a licensee; and
WHEREAS, Jelly What, as part of its license Agreement offers periodically adjust its software to meet the special and sometimes to the ever-changing needs of a licensee; and
WHEREAS, Company desires to license this Software for use in its business; and
WHEREAS, Jelly What and Company have been operating under a short form Agreement since June 2018 and are now desirous to redefine its obligations and requirements of each other by adopting this Agreement as the continuing Agreement between Jelly What and Company;
NOW THEREFORE, in consideration of the foregoing Recitals and the covenants and the mutual promises set forth below the parties agree as follows:
1. Grant of License. Jelly What here by grants to Company a right to utilize Jelly What's Software. During the term of this Agreement Jelly What agrees to provide an Effectiveness Liaison to ensure the most effective collaboration between Jelly What's staff and the company.
2. Duration of Agreement. This Agreement shall remain in full force and effect under the following conditions:
a. So long as Company makes its timely weekly Mobilization / Onboard, and License Fee payments set forth in paragraph 2., the license shall continue to be in force unless terminated pursuant to paragraph 3.b below. However, the failure of Company to timely pay any of the Fees set forth in Paragraph 2 above will be an act of default and give Jelly What the absolute right to cancel the Agreement.
b. This Agreement may be terminated by Jelly What and/or by Company by serving a thirty (30) days written notice written notice on the other party. Notice may be served by Priority or Certified Mail and/or by e-mail at the party's designated email address set forth in this Agreement.
3. Effects of Termination or Expiration. Upon any expiration or termination of this Agreement, whichever occurs first, (a) the rights granted under this Agreement will be immediately revoked and Jelly What may immediately cancel the license, deactivate the software, and proceed in collection of any amounts still owed to Jelly What under this agreement; (b) Your Data may be deleted by Jelly What; and (c) the return or destruction of Confidential Information will be handled as contemplated in the final sentence of Section 4. Sections 1, 2, 3, 4, 5 and 6 survive termination or expiration of this Agreement.
4. Confidentiality. The parties acknowledge that in the course of performing their obligations under this Agreement, each may receive Confidential Information. Each party covenants and agrees that neither it nor its agents, employees, officers, directors or representatives will disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (a) to those employees, representatives, or contractors of the Receiving Party who require access to the Confidential Information to exercise its rights under this Agreement and who are bound by written Agreement, with terms at least as restrictive as these, not to disclose third-party confidential or proprietary information disclosed to such party, or (b) as such disclosure may be required by law or governmental regulation, subject to the Receiving Party providing to the Disclosing Party written notice to allow the Disclosing Party to seek a protective order or otherwise prevent the disclosure. Nothing in this Agreement will prohibit or limit the Receiving Party's use of information: (i) previously known to it without obligation of confidence, (ii) independently developed by or for it without use of or access to the Disclosing Party's Confidential Information, (iii) acquired by it from a third party that is not under an obligation of confidence with respect to such information, or (iv) that is or becomes publicly available through no breach of this Agreement. The Receiving Party acknowledges the irreparable harm that improper disclosure of Confidential Information may cause; therefore, the injured party is entitled to seek equitable relief, including temporary restraining order(s) or preliminary or permanent injunction, in addition to all other remedies, for any violation or threatened violation of this Section. The terms of this Agreement, Original Code and the structure, sequence and organization of the Jelly What products are Confidential Information of Jelly What or its licensors. Within five (5) days after a Disclosing Party's request, the Receiving Party shall return or destroy the Disclosing Party's Confidential Information; provided, however, that the Receiving Party shall be entitled to retain archival copies of the Confidential Information of the Disclosing Party solely for legal, regulatory or compliance purposes unless otherwise prohibited by law.
5. Software Ownership. Jelly What owns all rights, title and interest, including all intellectual property rights. These rights also include any and all modifications, updates created by Jelly What for itself or for Company.
6. Software Use Suggestions. From time to time Company shall have the right to provide in writing prospective or enhanced use suggestion that could facilitate changes to further customize the software. Any such changes that are incorporated into the Software for Company shall remain the exclusive ownership of Licensor, Jelly What.
7. Usage Data. In the course of providing Company with the services contemplated in this Agreement, Jelly What may collect, use, process and store diagnostic and usage related content from the computer, mobile phone or other devices Company uses to access the Jelly What Software or services. This may include, but is not limited to, IP addresses and other information like internet service, location, the type of browser and modules that are used and/or accessed (the "Usage Data"). Usage Data does not, however, include any Data by Company. Company agrees that Jelly What may process Usage Data to create and compile anonymized, aggregated datasets and/or statistics about the Jelly What products or services in order to: (a) maintain and improve the performance and integrity of other Jelly What products or services, (b) understand which Jelly What products or services are most commonly deployed and preferred by customers and how customers interact with Jelly What products or services, (c) identify the types of Jelly What services that may require additional maintenance or support, and (d) comply with all regulatory, legislative and/or contractual requirements, provided in each case that such aggregated datasets and statistics will not enable Company or any living individual to be identified.
8. Use Responsibilities. Company shall: (a) use commercially reasonable efforts to prevent unauthorized access to or use of any Jelly What products, and (b) notify Jelly What in writing immediately of any unauthorized use of, or access to, the Jelly What products or any user account or password thereof.
9. Use Restrictions. Company shall not, directly or indirectly: (a) sublicense, resell, rent, lease, distribute, market, commercialize or otherwise transfer rights or usage to any Jelly What products or any modified version or derivative work of the Software created by or for Company, (b) provide the Jelly What products, or any modified version or derivative work of the Jelly What products by or for Company, on a timesharing, service bureau or other similar basis, (c) remove or alter any copyright, trademark or proprietary notice in the Jelly What products, (d) develop Forked Software, (e) copy any features, functions or graphics of the Jelly What products for any purpose other than what is expressly authorized in this Agreement, (f) use or modify the Jelly What products in any way that would subject the Jelly What products, in whole in or in part, to a Copyright License, (g) send, store, or authorize a third party to send or store spam, unlawful, infringing, obscene or libelous material, or malicious code, (h) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Jelly What products, (i) use any intellectual property rights protected by applicable laws and contained in or accessible through the Jelly What products for the purpose of building a competitive product or service or copying its features or user interface, (j) use the Jelly What products, or permit it to be used, for purposes of product benchmarking or other comparative analysis intended for publication without Jelly What's prior written consent; or (k) use the Jelly What products to develop or enhance any (i) open source version of Jelly What software, (ii) derivative works of any open source version of Jelly What software, or (iii) any software code made to work with any open source version of Jelly What software.
10. Disclaimer of Warranties; Limitation of Liability.
10.1. Disclaimer of Warranties. THE JELLY WHAT PRODUCT IS PROVIDED TO COMPANY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.JELLY WHAT ORODUCTS OR SERVICES MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND JELLY WHAT IS NOT RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES.
10.2. Limitation on Damages. EXCEPT FOR A BREACH BY COMPANY OF SECTION 5., 6., 9., AND/OR 10, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUE OR FOR ANY INDIRECT, SPECIAL, COVER, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING UNDER THIS AGREEMENT AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. AND IN NO EVENT SHALL JELLY WHAT'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE, THE AMOUNT OF $100.
11. Assignment. Company shall not assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of Jelly What. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any attempted assignment in breach of this Section 6. shall be void.
12. Relationship of the Parties. Jelly What and Company are independent contractors, and nothing in this or any attachment hereto will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties.
13. Authority. The person who signs this Agreement for YOU represents that they have the complete authority to bind YOU to all the terms and obligations set forth herein. The signature affixed electronically.
14. Choice of Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of Florida and the federal U.S. laws applicable therein, excluding its conflicts of law provisions. Company and Jelly What agree to submit to the personal and non-exclusive jurisdiction of the courts located in Okaloosa County, Florida. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
15. Attorney's Fees. In any action related to this Agreement, if any party is successful in obtaining some or all of the relief it is seeking or in defending against the action, the other party shall pay, on demand, the prevailing party's reasonable attorneys' fees and reasonable costs.
16. Manner of Giving Notice. Notices regarding this Agreement shall be in writing and addressed to the e-mail address of Company at the e-mail at the address Company provides, or, in the case of Jelly What, when addressed to JELLY WHAT LLC, at the e-mail address provided by Jelly What.
17. Entire Agreement. Other Terms. This Agreement and any URLs referenced herein represent the entire agreement of the parties and supersede all prior discussions, emails and/or agreements between the parties and is intended to be the final expression of their Agreement. To the extent there is a conflict between this Agreement and any additional or inconsistent terms, the terms of this Agreement shall prevail, unless expressly stated otherwise. Notwithstanding any language to the contrary therein, no terms stated in any other order document (other than an Evaluation Order Form expressly incorporated herein) shall be incorporated into this Agreement, and all such terms shall be void. No failure or delay in exercising any right hereunder shall constitute a waiver of such right. This Agreement, including any related Evaluation Order Form may not be modified or altered except by written instrument, and no amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed (either manually or electronically) by an authorized representative by Company and Jelly What. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect. Except as otherwise provided, remedies specified herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.