Software as a Service Agreement
Terms and Conditions
Please read these Terms and Conditions carefully. Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who access or use the Service.
This agreement (“Agreement”) is made as of today’s date between:
1) The Customer (“Customer”)
2) Pro-Active, a division of Mechanical Music Corporation with offices at 800 E Northwest Hwy., Suite 625, Palatine, IL 60074 (”Pro-Active”).
3) The Customer and Pro-Active are collectively (the “Parties”).
For valuable consideration, the receipt and sufficiency of which both Parties hereby acknowledge, the Parties agree as follows: Terms and Conditions ("Terms")
Term of the Agreement:
1) Pro-Active hereby the terms of this Agreement will provide the eCommerce Software as a Service (SaaS) to Customer for its own sole use, and shall be effective upon the execution of this Agreement and shall continue forward on a Monthly basis. This agreement shall automatically renew each month unless either party gives written notice of termination by certified mail, no less than 30 days prior to the current term or any subsequent renewal terms.
Details of the Service:
1) During the Term of this Agreement, Customer will have a limited, revocable, non-transferable and non-exclusive license for Customer to use an eCommerce website. Pro-Active may offer upgrades to the version of the software Customer is using under this Agreement. Additionally, Pro-Active may offer optional software modules now and in the future that complement or enhance the software. Customer may elect to utilize the optional software or modules for an additional fee(s), however, some features may require additional modules and/or services to complete functionality, and Customer has no obligation to do so.
Service Charges and Payment:
1) A monthly or yearly fee as selected by the Customer will be payable for the services. The Customer will pay by recurring transactions: The Customer will provide Pro-Active with valid ACH, credit card or PayPal information, and the Customer hereby authorizes Pro-Active to charge the Customer's credit card or bank for Automated Clearing House (ACH) automated funds transfers for all invoices to satisfy software and any service fees including collection fees if necessary when due. Pro-Active reserves the right to suspend all services immediately if the payment terms are not adhered to. All sales are final and fees are non-cancellable and non-refundable. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties excluding taxes imposed on Pro-Active net income. Customer is responsible to collect and remit sales tax on all applicable sales.
Terms and Conditions:
1) Interest will be charged on overdue amounts at the rate of the lesser of 1.5% per month or the maximum amount allowed under applicable law, and the Customer shall be liable for all collection costs and fees, including reasonable attorney’s fees, incurred by Pro-Active in the enforcement of this Agreement and in the collection of any amounts due hereunder. If the Customer fails to pay any of the fees and charges due hereunder (which are not in dispute) and fails to cure such delinquency within thirty (30) days following notice of non-payment, Pro-Active shall have the right, in its sole and absolute discretion, to immediately suspend all or a part of the Services. The Customer shall remain liable for all unpaid fees and charges incurred during any period of suspension, notwithstanding that all or a part of the Services may not have been provided by Pro-Active.
2) Pro-Active shall be entitled to terminate this Agreement immediately in the event that the Customer ceases to conduct its business, or is adjudged insolvent or bankrupt, or upon the institution of any proceeding regarding insolvency, receivership, liquidation or assignment for the benefit of creditors, with respect to the Customer’ business. Pro-Active fees and terms may be subject to modification.
3) This is an agreement for software as a service and the Customer is not granted ownership to any software, code or other intellectual property by means hereof. The Customer will not copy, translate, adapt or modify any of Pro-Active code, data feeds, images or analytics which shall remain the property of Pro-Active and its licensors absolutely at all times. For the avoidance of doubt all materials, processes, initiatives, data systems or software, code, specifications, designs, database rights, and or rights in designs or inventions shall belong to Pro-Active and its licensors absolutely at all times. Customer acknowledges that all data provided in any content and/or product data feed is the sole property of the provider and shall not be used outside of this agreement.
4) The Customer acknowledges that from time to time it may receive information about Pro-Active and/or its business that Pro-Active considers proprietary and confidential (“Confidential Information”). The Customer hereby agrees to keep in strict confidence, and not to use except as expressly permitted hereby, all Confidential Information, including but not limited to technical or commercial know-how, specifications, inventions, processes or initiatives, which is disclosed by Pro-Active. The Customer will use any data derived from the Services solely for its own internal use and will not make it available to any third party without the express written approval of Pro-Active.
5) The Customer agrees that during the Term of this Agreement, and for a period of twelve (12) months after termination of this Agreement for any reason: (i) the Customer will not hire or seek to hire any of Pro-Active employees and (ii) the Customer will not engage any services from any of Pro-Active employees or former employees which are actually or potentially competitive with the Services being provided by Pro-Active hereunder.
6) (a) EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, THE SERVICES AND ALL DATA ARE PROVIDED ON AN “AS IS” BASIS. PRO-ACTIVE AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES. PRO-ACTIVE AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (ii) THE SERVICES WILL MEET CUSTOMER REQUIREMENTS OR EXPECTATIONS, (iii) THE SERVICES WILL RESULT IN SALES, (iv) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (v) ERRORS OR DEFECTS WILL BE CORRECTED, OR (vi) THE SERVICES OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. PRO-ACTIVE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. 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 BY PRO-ACTIVE AND ITS LICENSORS.
(b) IN NO EVENT SHALL PRO-ACTIVE AND/OR ITS LICENSORS’ AGGREGATE LIABILITY FOR CLAIMS ARISING UNDER THE AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7) The Customer will indemnify, defend and hold Pro-Active and its officers, directors, employees, agents, service providers, licensors, and affiliates harmless, at its expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against Pro-Active (and/or its officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with Pro-Active to the extent that such Action is based upon or arises out of (a) Customer's use of the Services; or (b) Customer's noncompliance with or breach of this Agreement, or (c) the unauthorized use of the Services on a website other than the site specified in this Agreement. Pro-Active reserves the right to perform maintenance, statistical and performance analysis of all websites, software and hosting systems.
8) In no event shall termination of this Agreement for any reason relieve the Customer of the obligation to pay any fees payable to Pro-Active for the period prior to the effective date of termination.
9) Pro-Active reserves the right, at our sole discretion, to modify this Agreement or replace these Terms at any time. If a revision is material we will try to provide at least 30 days notice prior to any new terms taking effect. What constitutes a material change will be determined at Pro-Actives sole discretion.
10) This Agreement shall be governed by Illinois law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Cook County, Illinois. The Customer hereby submits to the jurisdiction of such courts for the adjudication of any dispute governed hereby.
11) This Agreement constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both Parties.
12) If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. Should any of the obligations of this Agreement be found illegal or unenforceable as being too broad with respect to the duration, scope or subject matter thereof, such obligations shall be deemed and construed to be reduced to the maximum duration, scope or subject matter allowable by law. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision.
13) For the purposes of this Agreement, Force Majeure Event means an event beyond the reasonable control of Pro-Active including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Pro-Active or any other party), failure of a utility service or transport network, act of God, war, riot, terrorism, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, pandemic, or default of suppliers or subcontractors. Pro-Active shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Agreement as a result of a Force Majeure Event. If the Force Majeure Event prevents Pro-Active from providing any of the Services under this Agreement for more than 8 weeks, Pro-Active shall, without limiting its other rights or remedies, have the right to terminate this Agreement immediately by giving written notice to the Customer.