Terms & Conditions
1. Licensing Subscription Agreement – By signing this Agreement, Customer is entering into a revocable, non-exclusive, non-transferable, and royalty free Licensing Subscription Agreement (the “Agreement”) with Take Three Technologies (“T3T”) for individual user licenses. Said license(s) grant the limited right to use TheRuleTool in accordance with the terms and conditions of this Agreement and the Terms and Conditions listed on the user site. Customer, for purposes of this Agreement includes the Company and all associated users under this Agreement or the individual user who is a party to this Agreement.
a. Customer is authorized to use TheRuleTool solely for your internal business purposes for the Customer Account identified above.
b. If there is any conflict between this Agreement and the Terms and Conditions listed on the user site, the terms of this Agreement shall govern.
2. Activation — TheRuleTool is available for immediate use once the user log-on(s) and password(s) are issued and the user activates their account. Customer shall not share the log-on(s) and password information issued by T3T with any third party, including any individual inside of Customer’s organization, except T3T’s support desk. Each log-on and password shall have only one (1) user associated with it and only said user has authorization to access said account.
3. Subscription Term – The term of this Agreement is one (1) year from the subscription start date and will automatically renew for successive one (1) year renewal terms on the annual anniversary of the Subscription Start Date.
4. Per User Cost –$20.00/per user
a. TMC Member Discount – Members of The Mortgage Collaborative (“TMC”) are eligible for the TMC Member Discount. For as long as the Customer remains a TMC member, the TMC Member Discount will be applied against each month’s billing as described in Section 5 below. If Customer terminates their TMC Membership or is removed from TMC Membership for any reason, the TMC discount will no longer apply and pricing will revert to the T3T Standard Cost per user. T3T will use TMC’s monthly membership roster as its sole and only method of determining TMC Member Discount eligibility.
b. User Discounts – Discounts on the per user price noted above in this Section 4 may be available to Customer if Customer meets certain user minimums. Any user discount offered by T3T to Customer, if any, is in the sole discretion of an authorized T3T representative. This per user discount cannot be combined with any other discount offered by T3T.
c. 30 Day Free Trial – T3T will provide to Customer access to TheRuleTool on a 30 Day Free Trial basis. For purposes of this Agreement, Day shall mean calendar day; and for clarity, the 30 Day Free Trial Period shall end 30 calendar days from execution of the Agreement (ex. If Agreement is signed on April 1, the 30 Day Free Trail Period ends on April 30). Upon completion of the 30 Day Free Trial Period, unless otherwise cancelled by Customer as outlined in Section 4 of the Agreement, Customer will be billed as outlined in the Agreement and Attachment 1. For more information on billing, please see Section 4 of the Agreement.
i. Cancellation — If Customer elects not to continue using TheRuleTool after the 30 Day Free Trial Period, Customer must cancel the Agreement, including any and all relevant Addenda thereto, by providing written notice to: support@theruletool.com. T3T must receive notice of cancellation no later than day 30 of the 30 Day Free Trial Period; otherwise, Customer will be billed according to the Agreement.
ii. Payment Information – Customer agrees to provide T3T with full and complete Payment Information contained in Attachment 1 to the Agreement upon execution of the Agreement.
5. Billing – Customer will be billed at the beginning of each month for each user under Customer’s Subscription. Customer will be billed on a per user basis reduced by any applicable discount. T3T will produce a monthly invoice summarizing all charges due, and e-mail it to the Customer Contact E-Mail on file. Customer is responsible for paying for all users that are on the Customer Account as of the last day of the preceding month.
6. Late Payments or Non-Payment – Any amounts invoiced that remain unpaid after 30 days from invoice date will be subject to collection and T3T will suspend the Customer Account until payment is received. T3T reserves the right to terminate this Agreement at its sole discretion due to any unpaid balance. A late fee of 5% of the outstanding balance will be assessed by T3T as of the 15th day of the month in which the bill was due. In the event that the Credit Card or ACH payment information provided by the Customer is no longer valid and payment is rejected for the current billing cycle, T3T will make commercially reasonable efforts to contact the Customer Contact to obtain current billing information; however, it remains Customer’s responsibility to keep all contact and billing information up to date at all times. Returned checks will be subject to a return check fee of $50.00. Customer will be liable for any and all collection costs incurred as a result of late payment or non-payment.
7. Changes to Pricing – T3T reserves the right to modify per user cost at any time and for any reason. T3T will give Customer a 30 day notice of any intended pricing increase. customer may terminate this Agreement per Section 8 below. If Customer has not provided notice of termination pursuant to Section 8 below within 30 days after receipt of the pricing change notice, Customer will be deemed to have accepted the pricing change and this Agreement shall remain in full force and effect.
8. Termination of Agreement – Customer may terminate this Agreement at any time and for any reason by providing written notice, either physically by direct mail to Take Three Technologies, Attn: Rule Tool Cancellations, 1080 Cherokee Street, Denver, CO 80204 or electronically at support@theruletool.com. T3T may terminate this agreement at any time and for any reason, including, but not limited to, any material breach of the terms of this Agreement, failure to cure said breach within the required time frame after receiving notice of said breach, non-payment of the monthly billing, misuse and/or misappropriation of any T3T intellectual property, misuse and/or misappropriation of any of TheRuleTool technology, any violation of the terms of this Agreement, and any violation of the Terms and Conditions listed on the user site.
9. Intellectual Property –
a. Of T3T — Customer shall not use any T3T’s trademarks, copyrights, or other intellectual property, including TheRuleTool mark, for any commercial advertisement or other commercial purpose without the prior express written consent of T3T. Customer shall not copy or otherwise reconfigure or reverse-engineer TheRuleTool or any other accompanying software supplied by T3T to Customer. By signing this Agreement, Customer acknowledges that TheRuleTool is the proprietary property of T3T.
b. Customer’s Marks – T3T desires to display Customer’s logo, trademark, or other brand identifier (“Customer’s Mark”) on promotional material, including online, in connection with TheRuleTool and to identify Customer as a user of TheRuleTool. Customer may, at Customer’s option, provide T3T with Customer’s Mark(s) for T3T’s use in connection with said promotional material. If Customer provides to T3T at the time this Agreement is executed any Customer Mark(s) to be displayed on T3T’s promotional material for TheRuleTool, Customer shall in effect grant to T3T a limited, non-exclusive, royalty free license to use Customer’s Mark(s). Except as otherwise provided herein, Customer grants to T3T no right, title, or interest in or to any Customer’s Mark(s). T3T shall not alter, modify, or in any way disparage Customer’s Mark(s) through its display of Customer’s Mark(s) and will not use Customer’s Mark(s) except as set forth in this Section 9.
10. Overlays – Customer represents and warrants that Customer is authorized to access the investor guidelines and overlays Customer has listed as approved investors. Customer represents and warrants that Customer shall not provide to T3T any Confidential Variance(s) Customer may have specific to Customer’s organization. T3T will not display any Confidential Variance(s) of Customer on TheRuleTool.
11. Support – T3T will provide support services to Customer including by way of email and telephone support. T3T may provide additional support options, such as an online chat room, in the future. Customer understands and acknowledges that in using any support function of T3T, whether currently in use or future methods, Customer may not use offensive language, make derogatory statements, or otherwise engage in acts that would offend a reasonable person. Additionally, in using the support options, Customer shall not provide any of the following information to T3T: Personal Private Information of Customer’s Borrowers, including, but not limited to, name, address, social security number, income, credit score, criminal background information, and foreclosure or bankruptcy information; Loan Level Details, including, but not limited to, property address, property value, or loan amount; or Credit Level Details, including, but not limited to, any information used by Customer and/or Customer’s underwriting in making a credit decision.
12. Indemnification – T3T shall indemnify, defend, and hold Customer harmless from any claims, demands, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising regarding any allegation that TheRuleTool infringes any third party intellectual property rights. As a condition precedent to this indemnity obligation, Customer shall immediately tender a copy of the claim to T3T and allow T3T to assume the defense. Customer shall fully and timely cooperate with T3T in any defense effort regarding such claim. In the event Customer is no longer permitted to use or is limited with respect to certain aspects of TheRuleTool, T3T shall either perform such work as necessary to revise the infringing work product to remove the infringing material, or shall terminate this Agreement and refund Customer an amount equal to any unearned license fees paid in advance.
a. Notwithstanding the above, Customer will indemnify, defend, and hold T3T harmless, including its officers, owners, employees, agents, and the like from any claims, demands, losses, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to T3T’s display of Customer’s authorized investor guidelines and overlays.
13. Limitation of Liability – EX CEPT AS EXPRESSLY STATED IN THIS AGREEMENT, TAKE THREE TECHNOLOGIES PROVIDES NO WARRANTY, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DICLAIMS ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, AND ANY WARRANTIES THAT THERULETOOL ARE FREE OF ERROR(S), WILL OPERATE WITHOUT INTERRUPTION, AND ARE COMPATIBLE WITH ALL EQUIPEMENT. NO INFORMATION, DOCUMENTATION, OR ADVICE, WHETHER WRITTEN OR ORAL, FROM TAKE THREE TECHNOLOGIES WILL BE CONSTRUED AS CREATING ANY WARRANTY.
a. Customer understands and acknowledges that T3T and TheRuleTool are providing no underwriting guidance, but are simply providing an online database to house agency guidelines with Customer’s investor overlays. Customer shall not make any underwriting or credit decision solely based on information provided by T3T. The information provided must be vetted and assessed by Customer’s underwriter, underwriting department, and/or any third party delegated underwriting authority of Customer to ensure applicability to specific loan(s).
14. Miscellaneous
a. Entire Agreement – This Agreement, including any and all attachments and addendums, as well as the Terms and Conditions listed on the user site, constitute the Entire Agreement between T3T and Customer. All prior agreements, discussions, negotiations, and commitments, whether oral, written or otherwise, related to TheRuleTool are superseded.
b. Modifications – This Agreement shall only be modified by a written agreement, validly executed and agreed to by T3T and Customer.
c. Choice of Law – Any and all disputes arising out of or relating to this Agreement or its subject matter will be governed by the laws of the state of Colorado.
d. Arbitration Provision – Any and all disputes arising out of or relating to this Agreement will be submitted to JAMS binding arbitration. Arbitration shall be conducted in Denver, Colorado, or at any other location as required by law, before a sole arbitrator, in accordance with the laws of the State of Colorado for agreements entered into and to be performed in Colorado. Judgement on the Award may be entered into in any court having jurisdiction.
e. Severability – If any clause or provision of this Agreement is found to be illegal or unenforceable for any reason, such clause or provision shall be modified to the extent necessary to make this Agreement legal and enforceable, or, in the alternative, the clause or provision shall be severed from this Agreement to allow this Agreement to remain in full force and effect.
f. Assignability – Customer shall not assign this Agreement without the prior express written consent of T3T. In the event of a merger, consolidation, or acquisition involving Customer Account listed above, Customer must notify T3T within five (5) business days of such merger, consolidation, or acquisition. Customer shall provide T3T with a written request to either terminate or assign the Customer Account listed above due to merger, consolidation, or acquisition. Such notice shall be sent either physically by direct mail to Take Three Technologies, Attn: Support, 1080 Cherokee Street, Denver, Colorado 80204 or electronically at support@theruletool.com. If T3T does not receive notice of the merger, consolidation, or acquisition affecting the Customer Account listed above, T3T may, at its discretion, suspend or terminate this Agreement without notice.
g. Non-exclusivity – Customer understands and acknowledges that T3T may entered into similar Agreements with other companies and/or individuals, some of which may be direct competitors of Customer. Customer also understands and acknowledges that any discount offered to Customer above may also be offered to other companies and/or individual users. Customer waives any such conflicts.
License Agreement
TERMS OF USE
By clicking on the “I Accept” button below, you, and if applicable, the entity or partnership you represent (collectively, “you”, “your”, or “Licensee”) acknowledge and agree that you have read the following terms and conditions (this “Agreement”) for the license and use of the System (as defined below), understand the terms and conditions set forth herein, and accept and agree to be bound hereby.
You further acknowledge and agree that Take Three Technologies, LLC, a Colorado limited liability company (“Licensor”) may modify this Agreement from time to time without notice. The most current version of this Agreement will supersede all prior versions. By using the System after publication of modifications to this Agreement, you agree to be bound by and to the full language of the most current version of this Agreement, as revised and published. Your only recourse if you disagree with this Agreement, or changes to this Agreement, is to cancel your subscription to the System. As such, you should review this Agreement periodically. If you disagree with anything in this Agreement, you may not use the System.
In consideration of the mutual promises and upon the terms and conditions set forth below, the Licensee and the Licensor agree as follows:
1.Certain Definitions.
“Agency” means, in the context of the mortgage industry, a securitizing agency such as Fannie Mae, Freddie Mac, the US Department of Housing and Urban Development and the US Department of Veterans Affairs, that purchases, insures or guarantees residential mortgage loans.
“Documentation” means any instructions manuals or other materials, and on-line help files, regarding the use of the Software and/or Website.
“License Fees” has the meaning set forth in Section 3.1.
“Other Information” means information or data provided to Licensor or entered into the System by you or by others on your behalf.
“Proprietary Information” means the System and all related information, data, drawings, tests (including tests performed by you), specifications, trade secrets, algorithms, data models, object code and machine-readable copies of the System, source code of the System, underwriting tools, screen layouts, forms, reports, and any other proprietary information supplied to you by Licensor, including all items defined as “confidential information” in any other agreement between you and Licensor whether or not executed prior to this Agreement.
“Software” means Licensor’s LoanMaps software, including any portion of it.
“Subscription Term” means any of the terms as selected by you on the Website.
“System” means, collectively, the Software, Website and Documentation.
“Update” means a release or version of the Software and/or Website containing functional enhancements, extensions, error corrections or fixes that are generally made available to Licensor’s customers
“Website” means the website presently available at www.loanmaps.com from which the System can be accessed and used.
2.Ownership and Grant of License.
Grant. Subject to the terms and conditions of this Agreement, Licensor hereby grants to you, and you hereby accept, a nonexclusive, nontransferable, non-sub-licenseable, revocable license to use the System solely in accordance with this Agreement.
No Other Rights. All rights not expressly granted to you under this Agreement are reserved by Licensor. Other than as expressly provided for in this Agreement, you expressly understand and agree that all right, title, and interest in and to the System, the Proprietary Information and any other material furnished to you under this Agreement remain the sole and exclusive property of Licensor, and you shall neither derive nor assert any title or interest in or to such items except for the license granted under this Agreement. Licensor retains all ownership rights to any concepts, ideas, methods, methodologies, procedures, processes, know-how, techniques, models, templates, user interfaces, screen designs, utilities, and routines contained in the System.
Restrictions on Use. You agree that you will not use the System in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to the intellectual property rights, rights of privacy, or rights of personality, or in any manner inconsistent with Licensor’s other terms of use or agreements, privacy policy, or this Agreement. You will not yourself or through any parent, subsidiary, affiliate or any other third party: (a) modify, decode, decompile, disassemble, reverse engineer or otherwise translate the Software in whole or in part; (b) write or develop any derivative software or any other software program based upon the System or any other Proprietary Information; (c) use the System to provide services to third parties or otherwise use the System on a service bureau or time-sharing basis; (d) sublicense the System; (e) provide, disclose, divulge or make available to, or permit use of the System by any third party; (f) disable or modify any licensing control features of the System; or (g) directly or indirectly attempt to do any of the foregoing.
Other Information. You hereby grant to Licensor a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, transferable, fully-paid license to use, reproduce, modify and distribute Other Information
3.License Fees.
Fees. In consideration of the license granted pursuant to Section 2.1, you agree to pay the applicable license fees for the Subscription Term selected by you on the Website (“License Fees”). This Agreement also incorporates by reference and includes program ordering and payment terms provided to you for the Software:
License Fees will be billed to you in U.S. dollars, and your account will be debited when you subscribe and provide your payment information, unless stated otherwise in the program ordering or payment terms on the Website.
You must pay with one of the following:
a valid credit card acceptable to Licensor;
a valid debit card acceptable to Licensor;
sufficient funds in a checking or savings account to cover an electronic debit of the payment due; or
by another payment option Licensor provides to you in writing.
If your payment and registration information is not accurate, current and complete, and you do not notify Licensor promptly when such information changes, Licensor may immediately suspend or terminate your account, terminate this Agreement, and refuse any further use of the System by you.
Licensor will automatically renew your subscription at the then-current rates, as required for you to maintain access to the System, unless your license to the System is cancelled or terminated under this Agreement.
Payment. You shall pay the full amount of the License Fees in advance at the time you select a Subscription Term on the Website.
Taxes. All charges and fees provided for in this Agreement do not include any taxes, duties, or similar charges. You will pay or reimburse Licensor for all federal, state, provincial or other local sales, use, personal property, excise or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated hereby (other than taxes on the net income of Licensor). You will hold Licensor harmless from all claims and liabilities arising from your failure to report or pay any such taxes.
4.Maintenance and Support.
Maintenance. The System may periodically be updated with tools, utilities, improvements, third party applications, or general updates to correct errors, fix bugs, or to otherwise improve and enhance the features and performance of the System. Licensor may also change or discontinue the System, in whole or in part, including but not limited to, any feature or aspect of the Website, Internet-based services, pricing, technical support options, and other product-related policies. Your continued use of the System after Licensor posts or otherwise notifies you of any changes indicates your agreement to the changes.
Support. Licensor may use a variety of methods (e.g., Internet, chat, e-mail and phone) to provide technical support and customer service in connection with the System. The terms and conditions governing the offering of any such support, some of which may require the payment of an additional fee, shall be determined by the Licensor in its discretion and are subject to change as announced by Licensor from time to time.
5.Passwords and Security.
Identification; Passwords. You are responsible for maintaining the confidentiality of your username and password and for ensuring that your username and password is used only by you. You will notify Licensor immediately of any unauthorized use of your data, account, usernames and passwords, or of any other breach of security with respect to the System of which you are aware.
Access via the Internet. You acknowledge that, notwithstanding security precautions deployed by Licensor, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the System. The parties agree to take all commercially reasonable precautions to protect the security of data transmitted over or stored in any system connected to or accessible via the Internet in connection with use of the System.
6.Privacy and Personal Information.
You can view Licensor’s Privacy Statement on the Website. You agree to be bound by the Licensor Privacy Statement, subject to change in accordance with its terms. Most importantly, you agree: (a) to Licensor maintaining your data according to the Licensor Privacy Statement, as part of the System; and (b) to give Licensor permission to combine information you enter or upload in a way that does not identify you personally with that of other users of the System. By way of example, this means that Licensor may use that non-identifiable aggregated data to improve services, design promotions, or provide ways for you to compare business practices with other users.
7.Limited Warranty and Limitation of Liability.
Limited Warranty.
Licensor represents and warrants that it will use commercially reasonable efforts to ensure that the Software is current and accurate; provided, however, THAT DUE TO FREQUENT CHANGES TO APPLICABLE RULES AND REGULATIONS, YOU ULTIMATELY BEAR FULL AND SOLE RESPONSIBILITY FOR DETERMINING THE ACCURACY AND APPLICABILITY OF THE OUTPUT GENERATED BY THE SYSTEM AND TO CONFIRM ITS ACCURACY (PRIOR TO COMMITMENT TO OR ORIGINATION OF ANY LOAN OR MORTGAGE. LICENSOR DOES NOT GUARANTY THE ACCURACY OF ANY OF THE SYSTEM, AT THE TIME OF OUTPUT OF THE SAME FROM THE SYSTEM, AND HEREBY EXPRESSLY DISCLAIMS ANY OBLIGATION TO DO SO.
Licensor represents and warrants that it will at all times employ all commercially available methodologies, technologies and other means to prevent introduction, and it will not intentionally introduce, into your websites, devices, software or network, any software, virus, worm, “back door,” Trojan Horse, or similar harmful code.
Licensor represents and warrants that, as of the date of this Agreement, the System is not the subject of any third-party claims, allegations or demands involving intellectual property infringement or misappropriation, and Licensor has no reason to believe that the System will become the subject of any third party claims, allegations or demands involving intellectual property infringement or misappropriation.
Limitations. Licensor is not responsible for obsolescence of the System that may result from changes in your requirements. The limited warranties set forth in Section 7.1 shall apply only to the most current version of the System published by Licensor from time to time together with any and all Updates. There shall be no cost or charges to you in connection with Licensee’s upgrade to a more recent or then current version of the System or to any Updates.
Conditions. The warranties set forth in Section 7.1 will apply only if: (a) Licensee’s use of the System has been at all times substantially in accordance with the Documentation; (b) no modification, alteration or addition has been made to the System by persons other than Licensor or Licensor’s authorized representatives; (c) you have not breached this Agreement, specifically including Section 2.3, and (d) to the extent applicable, you promptly notify Licensor of the existence and nature of any defect and provide reasonable assistance and access to reproduce and resolve such defect.
Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 7.1, THE SYSTEM IS PROVIDED “AS IS”. YOUR USE OF THE SYSTEM IS ENTIRELY AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR, ITS AFFILIATES, AND ITS THIRD PARTY SERVICE OR DATA PROVIDERS, LICENSORS, DISTRIBUTORS OR SUPPLIERS (COLLECTIVELY REFERRED TO AS, “SUPPLIERS”) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT THE SYSTEM IS FIT FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, DATA LOSS, NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR THE ACCURACY, RELIABILITY, QUALITY OR CONTENT IN OR LINKED TO THE SYSTEM. LICENSOR AND ITS AFFILIATES AND SUPPLIERS DO NOT WARRANT THAT THE SYSTEM IS SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION. LICENSOR DOES NOT WARRANT ACCESS TO THE INTERNET OR TO ANY OTHER SERVICE, CONTENT OR DATA TRANSMITTED THROUGH THE SYSTEM. LICENSOR AND ITS AFFILIATES AND SUPPLIERS DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SYSTEM WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS. THIS DISCLAIMER APPLIES TO BUT IS NOT LIMITED TO THE GRAMM-LEACH-BLILEY ACT OF 1999, THE SARBANES-OXLEY ACT OF 2002, OR OTHER FEDERAL OR STATE STATUTES OR REGULATIONS. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE SYSTEM IS IN ACCORDANCE WITH APPLICABLE LAW.
Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY EXEMPLARY, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE FURNISHING, PERFORMANCE OR USE OF THE SYSTEM OR ANY SERVICES PERFORMED HEREUNDER, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S LIABILITY TO THE OTHER UNDER THIS AGREEMENT WILL NOT, IN ANY EVENT, EXCEED THE TOTAL LICENSE FEES PAID BY LICENSEE TO LICENSOR HEREUNDER. THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION 7.5 SHALL NOT APPLY TO ANY BREACH OF SECTION 2.3 BY LICENSEE, LICENSEE’S PAYMENT OBLIGATIONS, WILLFUL MISCONDUCT OF EITHER PARTY, OR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS. THE PROVISIONS OF THIS SECTION 7 ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN LICENSEE AND LICENSOR. LICENSOR’S PRICING REFLECTS THIS ALLOCATION OF RISK AND LIMITATION OF LIABILITY. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
Third Party Software. To the extent any third-party software is incorporated in or required by the System, Licensor shall be responsible for obtaining licenses for such software for Licensee’s benefit and use.
8.Indemnification.
Licensee Indemnification. Licensee shall indemnify, defend and hold harmless Licensor, its officers, agents, and employees, from any claims, demands, losses, liabilities, costs and expenses, including reasonable attorneys’ fees, whatsoever arising from or in connection with Licensee’s use of the Software in a manner that is not consistent with the terms of this Agreement.
Licensor Indemnification. Licensor shall indemnify, defend and hold harmless Licensee, its officers, agents, and employees (collectively, the “Licensee Indemnified Parties”) from any claims, demands, losses, liabilities, costs and expenses, including reasonable attorneys’ fees, whatsoever arising from or in connection with any allegation that the System or any elements thereof, or the use of the System pursuant to this Agreement constitutes a violation or infringement of any intellectual property right of a third party. If the System is held by a court of competent jurisdiction to constitute infringement, Licensor shall, at its own expense, (a) promptly procure the right for continued use of such System by Licensee, (b) if the performance thereof will not thereby be materially adversely affected, promptly replace or modify the System so that it becomes non-infringing, or (c) terminate this Agreement and refund to Licensee an amount equal to the License Fees paid in advance for the then-current Subscription Term during which this Agreement was terminated multiplied by a fraction, the denominator of which is the number of days remaining in such Subscription Term and the numerator of which is the number of days in such Subscription Term.
9.Term and Termination.
Term. The term of this Agreement shall commence on the date you click “Agree” and shall continue for the Subscription Term chosen by you on the Website (the “Initial Term”) and, thereafter, shall automatically renew for subsequent periods equal in length to such Subscription Term (each a “Renewal Term”, and together with the Initial Term, the “Term”) unless earlier terminated by either party in accordance with the terms hereof. or you select a new Subscription Term at the expiration of the immediately preceding Term, in which case the following Renewal Term will be equal in length to the new Subscription Term so selected by you.
Termination. This Agreement may be terminated as follows:
by you immediately at any time for any reason; or
(2) by Licensor (a) immediately upon your breach of Section 2 or Section 3, (b) in accordance with Section 8.2(c), or (c) upon Licensee’s breach of any other provision of this Agreement if Licensee fails to cure such breach within thirty (30) calendar days after receipt from Licensor of notice of such breach.
Effect of Termination. Upon any termination of this Agreement, Licensee shall immediately discontinue all use of the System and destroy all Documentation that is in tangible form. To ensure compliance with this Section 9.3, Licensor shall have the right to remotely block and prevent Licensee’s access to the System.
Survival. The parties’ obligations which by their nature would continue beyond the termination of this Agreement shall survive the termination of this Agreement.
10.10 Miscellaneous.
Assignment. You will not assign this Agreement or any rights hereunder, in whole or in part, whether voluntarily, by operation of law or due to a change in control, without the prior written consent of Licensor. Any assignment in violation of the foregoing shall be void. Licensor may assign this Agreement and any rights hereunder at any time without your consent. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of each of the parties, their respective successors and permitted assigns.
Notices. All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified; (b) when sent by confirmed facsimile or other verified electronic means if sent during normal business hours of the recipient and, if not, then on the next business day; (c) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All notices to Licensor shall be sent to: Take Three Technologies, 1080 Cherokee Street, Denver, Colorado 80204 Attn: Legal Department or to such other address as Licensor may indicate in writing to Licensee. All notices to you shall be sent to the address you provide within the Website.
Force Majeure. Except with respect to any payment or confidentiality obligations, neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquake, fire and explosions, but the inability to meet financial obligations is expressly excluded.
Waiver. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action.
Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
Integration. This Agreement (including the Exhibits hereto) contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, under-standings and agreements, either oral or written, between the parties with respect to said subject matter. This Agreement may not be amended, except by a writing signed by both parties and in a form specifically referencing the modified provisions of this Agreement.
Injunctive Relief. In the event of actual or threatened breach of the provisions of Section 2 by you, you agree that Licensor will have no adequate remedy at law and will be entitled to immediate injunctive and other equitable relief, without the requirement of posting a bond or other security and without the necessity of showing actual money damages. Exercise of the right to obtain injunctive and other equitable relief will not limit any rights to seek additional remedies.
Relationship of Parties. Each party is an independent contractor and nothing in this Agreement is intended or shall be deemed to constitute a partnership, agency, employer-employee or joint venture relationship between the parties. No party shall incur any debts or make any commitments for the other.
Dispute Resolution. If either party believes that the other party has breached this Agreement, or in the event of any dispute hereunder including, but not limited to, any dispute over the proper interpretation of the terms and conditions hereof, the following procedures shall be invoked:
Dispute Resolution. If either party believes that the other party has breached this Agreement, or in the event of any dispute hereunder including, but not limited to, any dispute over the proper interpretation of the terms and conditions hereof, the following procedures shall be invoked:
The goal of the parties shall be to resolve all disputes amicably and voluntarily whenever possible. The party asserting breach or seeking an interpretation of this Agreement first shall serve written notice on the other party. The notice shall identify the specific Agreement provision alleged to have been violated or in dispute and shall specify in detail the asserting party’s contention and any factual basis for the claim. Representatives of the parties shall meet within thirty (30) days of receipt of notice in an effort to resolve the dispute;
Either party may refer a dispute arising under this Agreement to arbitration under the rules of the American Arbitration Association (“AAA”). One (1) arbitrator shall be chosen by the parties from a list of qualified arbitrators to be provided by the AAA. If the parties cannot agree on an arbitrator within ten (10) business days, then the arbitrator shall be named by the AAA. The expenses of arbitration shall be borne equally by the parties. The arbitration shall be conducted in Denver, Colorado or such other location as the parties shall mutually agree. The arbitrator shall apply Colorado law and the Colorado Rules of Civil Procedure; and
The party asserting breach or seeking an interpretation of this Agreement under this Section 10.9 shall be deemed to have certified that to the best of such party’s knowledge, information, and belief formed after reasonable inquiry, the claim of noncompliance or the request for interpretation of this Agreement is warranted and made in good faith and not for any improper purpose, such as to harass or to cause unnecessary delay or the needless incurring of the cost of resolving the dispute. If the dispute is found to have been initiated in violation of this Section 10.9(3), then the arbitrator, upon request or upon his or her own initiative, may impose upon the violating party an appropriate sanction, which may include an award to the other party of its reasonable expenses incurred in having to participate in the arbitration.
WAIVER OF JURY TRIAL. SUBJECT TO SECTIONS 10.9 AND 10.11HEREIN, THE PARTIES EACH HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTERS (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO OR CONNECTED WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Jurisdiction. Each of the parties hereto hereby consents to personal jurisdiction, service of process, and venue in the federal and state courts sitting in the City and County of Denver, Colorado (the “Denver Courts”) for the purpose of any proceedings in aid of arbitration and for pre-arbitral attachment or pre-arbitral injunction to maintain the status quo or prevent irreparable harm, and to the non-exclusive jurisdiction of the Denver Courts for proceedings arising out of or relating to the enforcement of any award or decision of the arbitrators duly appointed pursuant to this Agreement.
Governing Law. This Agreement shall be governed by the laws of the State of Colorado without reference to conflicts of law principles.
Headings. The headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
