This AGREEMENT is made and entered into as of the effective dates listed on the Quote and/or Invoice, by and between Export Internet Trade Systems, Inc. (Exits, Inc.), of 5643 S. Haseltine Rd. Brookline, MO 65619, herein referred to as the “Licensor” or “Exits,” and the “Licensee”.
NOW, THEREFORE, in consideration of the mutual understanding and commitments between the parties to this Agreement, the parties intending to be legally bound, hereby agree as follows:
(a) “Intellectual Property Rights” shall mean rights under patent, trademark, copyright and trade secret laws, and any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide, including but not limited to: moral rights and similar rights.
(b) “Licensor” shall mean Exits, Inc.
(c) “Licensee” shall mean company signing for and purchasing Global Wizard license.
(d) “License Fee” shall have the meaning as set forth in Sections II, III, IV, V, VI and as specified in the Quote and/or Invoice.
(e) “Term” shall mean the time and duration of this Agreement.
(f) “Global Wizard” or "Product" shall mean the application for which this Agreement is in effect.
(g) “Data” shall mean the information created by Licensor for use in the Global Wizard application.
(h) “Transactional Data” shall mean the results of any use of the Product by Licensee.
(i) “Licensee Denied Persons Screening” shall mean the methodology employed by Licensor for the Licensee to input data to verify if a party is prohibited by the laws of the United States from engaging in a specific transaction.
II. USE OF APPLICATION
(a) Subject to the terms and conditions of this Agreement, Licensor hereby grants to the Licensee a limited, perpetual, non-exclusive, and non-transferable license to use and to have the Licensee Approved Entities use the Global Wizard application, herein referred to as the “Product”, which is the exclusive intellectual property of Exits, Inc., via licensed access to the Product website. Be it known that this License is granted for the Licensee and Licensee Approved Entities’ internal business only. The Licensee shall not use the Product for the benefit of any third party, including without limitation, in a time-sharing arrangement or in the operation of any type of service arrangement. Licensee shall not modify the Product, as it is referred to above, nor attempt to translate, decompile, and reverse engineer or otherwise attempt to derive or interpret the Product source code. Furthermore, Licensee shall in no way attempt to adapt or modify the Product in a desire or effort to use the Product to create a derivative work therefrom.
(b) Licensor grants Licensee and the Licensee Approved Entities full access to use the Product as specified in the Quote and/or Invoice.
(c) Licensor will support the Product, its implementation, and customization, when required, as well as any upgrades thereof in accordance with normal business practices. Support time is during the normal business hours of 8:00AM - 6:00PM EST, Monday through Friday.
III. OWNERSHIP OF PRODUCT
(a) The Product is and shall remain the sole and exclusive property of the Licensor and/or its suppliers. The Licensee acknowledges and agrees that, as between the Licensor and the Licensee, the Product and Data (in all languages, formats, and media), and all improvements, enhancements, modifications, and derivative works that are embodied in, related to, or represented by the Product and Data (and all the Intellectual Property Rights of the Product and Data) are, and at all times shall be, the sole and exclusive property of the Licensor. The Licensee understands and agrees that the Licensee is not purchasing the Product, but rather obtaining a License only to access and use the Product in accordance with this Agreement.
(b) Licensor hereby acknowledges and affirms that all Licensee Denied Persons Screening for each export transaction is confidential information and to be used only by the Licensee and/or the Licensee Approved Entities, that Licensor will not reveal data in any form to any party unless so directed by the Licensee, that Licensor will continuously apply - as part of its ASP responsibilities - precautionary steps to safeguard the proprietary data being used to transact export clearance, that data will not under any circumstances be for use or for resale or accessible or be disclosed to any third party.
(c) Licensor reaffirms that ownership of all Transactional Data during the term of this license is the property of the Licensee and will be transferred to the Licensee when so directed.
IV. LICENSE, FEES, AND TAXES
Licensee agrees to pay Licensor the License Fees specified in the Quote and/or Invoice, plus any applicable sales, use, value-added, personal property, or other governmental tax imposed on the Licensee. License Fees are payable, in advance, on a basis for the term of this Agreement.
Licensee agrees to provide payment information (credit card or ACH) prior to the start of any services, including those with a Free Trial. If Licensee's authorizes, the Licensor will take payment from form of payment on file (credit card or ACH) upon renewal. If Licensee does not wish to renew, Licensee must contact Licensor prior to the expiration of their current license.
If use by Licensee is under the tier originally purchased, Licensee is required to pay Licensor the difference between the tier originally purchased and the actual use tier.
Licensee acknowledges and agrees that the Product contains confidential information and proprietary trade secrets of the Licensor and its third party suppliers (the “Confidential Information”). Licensee agrees to maintain the Confidential Information using at least as great a degree of care as the Licensee uses to protect its own confidential information provided it is at least a reasonable degree of care, including by instruction to or agreement with all persons authorized to have access to the Product hereunder. Further, Licensee shall not (nor permit any party to) sell, lease, transfer, publish, disclose, or otherwise make available any portion of the Product to others, except as expressly authorized in this Agreement. Further, Licensee agrees to assist Licensor in identifying and preventing any unauthorized use, copying, or disclosure of the Product or any of the algorithms or logic contained therein. In the event Licensee breaches any of its confidentiality obligations hereunder, Licensor may immediately deny Licensee further access to the Product and terminate this Agreement upon written notice to Licensee, including all license rights granted herein. In such event, no further License Fee shall be due to Licensor by Licensee.
Confidential Information maintained in the Product is secured both physically and logically. Physically, it is maintained at the Exits, Inc. hosting facilities at AWS. AWS provides data redundancy and secured physical access to ensure that only Exits-authorized personnel have access to maintain and/or access the servers that run the Product. The Product’s data is logically separated from other Licensees. Only authorized users for a Licensee can access data owned by that Licensee. This pertains to user data, shipment data, client-specific data, and all documents produced by using this data. Exits, Inc. staff are the only authorized users able to see and otherwise administer Licensee’s data at Licensee’s request.
The restrictions on disclosure set forth in Section V(a) of this Agreement shall not apply when, and to the extent that, such information: 1) is, at the time of its disclosure, or thereafter becomes part of the public domain through a source other than Licensee; 2) is made available to the general public by Licensor or a third party who is lawfully in possession of such information, not as a result of any act or failure to act on the part of the Licensee or a breach of a confidentiality obligation to Licensor; 3) was previously known to Licensee free of any obligation to keep it confidential; 4) or is independently developed by Licensee without regard to any information or access to the Product provided by Licensor.
VI. NO WARRANTIES
(a) Representations and Warranties
Licensee acknowledges and agrees that use of the Product, its website, and related services are entirely at the Licensee’s own risk. Licensor represents and warrants that the Product contains true and accurate information that is updated on a regular basis and that Licensor has all rights necessary to provide and license the Product to Licensee, as contemplated by this Agreement, and that use of the Product, services, and related information by Licensee, will not infringe upon any third party’s patent, copyright, trade secret, or other intellectual property right.
The Product, services, and all information (including third party information, products, and content) included in or accessible from this website and any additional website as may be accessed and relevant, are provided “as is” and “as available” without warranty of any kind and are subject to change at any time upon sixty (60) days prior written notice to Licensee.
To the fullest extent permitted by law, Licensor disclaims all representations and warranties (expressed, implied and statutory, including, but not limited to the warranties of merchantability and fitness for a particular purpose) other than those set forth above as to the services and all information, products and other content (including third party information, products, and content) included in or accessible from this website and/or any other relevant website.
(b) Licensee Responsibilities
Licensee is solely and entirely responsible for the results of Licensee’s use of the services on the Product website except to the extent that any such use is based upon the accuracy or inaccuracy of the information provided by or to the Licensee through the website.
(c) Limitation of Liability
Except to the extent that any liability is caused by the inaccuracy of the information provided by or to the Licensee through the website, in no event shall Licensor or any of its affiliates, partners, or content providers be liable for any indirect, special, consequential, punitive, or incidental damages, or damages for loss of use, profits, data, or other intangibles, or the cost of procurement of substitute goods and services arising out of or related to the use, inability to use, unauthorized use, performance or non-performance of the Product website, any Licensor site or services, even if Licensor has been advised previously of the possibility of such damages and whether such damages arise in contract, negligence, tort, under statute, in equity, at law, or otherwise. Licensor’s remedy shall be a refund of License Fees, which will be prorated, based on the period the Agreement is in effect. Exits Inc. liability shall be limited to the dollar value of this contract.
Licensee agrees to indemnify and hold Licensor harmless from any dispute alleging infringement of any third party’s patent, copyright, trade secret, or other intellectual property right.
VIII. TERM AND TERMINATION
The License granted under this Agreement shall continue for the period identified as the “Term” in the Quote and/or Invoice, unless sooner terminated by either Party in accordance with the provisions of this Agreement.
In addition to Licensor’s other rights set forth elsewhere in this Agreement, Licensor shall terminate this Agreement immediately and automatically upon a breach of Section V(a) by Licensee, its employees, or any third party acting on behalf of Licensee. Either Party may terminate this Agreement upon thirty (30) days written notice to the other Party. Licensee agrees that any termination of this Agreement shall, without further action by Licensor, automatically terminate the use of the Product, and all warranties and other obligations of Licensor shall be deemed to be revoked by Licensor and waived by Licensee.
On monthly payment plans only, early termination of services by Licensee will result in a cancellation fee equal to three months maximum usage for selected tier.
IX. RESTRICTED USE
Any use, duplication, or disclosure of the Product to the United Sates Government is subject to restrictions as set forth in subdivision (c) (1) (ii) of the Rights in Technical Data and Computer Software Clause at DFARS 252.227.7013 and the Rights in Data-General Clause at FAR 52.227.14. Use, duplication, or disclosure by the governments of any other countries is subject to restrictions of similar applicable laws.
X. GENERAL PROVISIONS
(a) No Assignment
This Agreement may not be assigned by either Party voluntarily or by operation of law, to any other person(s), entities, firm, or corporation, in whole or in part, without the prior express written approval of the non-assigning Party. Any attempt to do so shall be void. This Agreement shall apply to, inure to the benefit of, and be binding upon, “permitted” successors and assigns. Notwithstanding the foregoing, either Party shall be able to assign this Agreement to a third party that acquires all or substantially all of that Party’s assets by virtue of a purchase, merger, reorganization, or other like transaction.
(b) Governing Law
The terms and conditions set forth in this Agreement and the Quote and/or Invoice made a part hereof and attached hereto shall be governed by, and construed and enforced in accordance with the laws of the State of Missouri, notwithstanding any conflict of laws, principles, or statutes. The parties hereby consent to and agree to submit to the jurisdiction of such courts. Each of the parties hereto waives, and agrees not to assert in any such dispute, to the fullest extent permitted by applicable law, any claim that 1) such party is personally subject to the jurisdiction of such courts; 2) such party and such party’s property is immune from any legal process issued by such courts; or 3) any litigation commenced in such courts is brought in an inconvenient forum.
(c) Force Majeure
Licensor’s performance under this Agreement is subject to interruption and delay to the extent due to causes beyond its reasonable control, such as acts of God, acts of any government, war or other hostility, civil disorder, the elements, fire, explosion, power failure, equipment failure, industrial or labor disputes, inability to obtain necessary supplies, and the like.
Except as otherwise provided herein, all notices must be in writing to the addresses set forth in the Quote and/or Invoice. If applicable, a change of address must be sent to the other Party in writing by certified mail.
(e) Joint Press Releases
Upon Licensee’s prior review and written approval (which may be granted or withheld in Licensee’s sole discretion), Licensor may use Licensee’s name and logo in its marketing materials and collateral. The parties agree to work to jointly develop press releases announcing the relationship as well as future developments and milestones. All press releases are to be approved in writing by Licensee before being issued.
(f) Entire Agreement
The parties have read this Agreement and agree to be bound by its terms, and further agree that it, along with any Quotes, Invoices, Schedules, Exhibits, and Attachments hereto, constitutes the complete and entire Agreement of the parties and supersedes all and merges all previous communications, oral or written, and all other communications between said parties relating to the License and to the subject matter hereof. Any amendment must be in writing and signed by both parties.