Application Services Agreement - Team Logic Help System

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Application Services Agreement

APPLICATION SERVICES AGREEMENT

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE USING TEAM-LOGIC(TM), STORE-LOGIC(TM), MAIL-LOGIC(TM), CMS-LOGIC(TM) OR ANY ACCOMPANYING DOCUMENTATION (COLLECTIVELY, "WEB APPLICATIONS").
 
THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT ("AGREEMENT") GOVERN USE OF THE WEB APPLICATIONS AND THE WEB APPLICATION CONTENT (AS DEFINED BELOW) UNLESS YOU AND DELAWARE.NET, INC. ("DELAWARE.NET") HAVE EXECUTED A SEPARATE AGREEMENT GOVERNING USE OF THE WEB APPLICATIONS.
 
Delaware.Net is willing to license the Web Application to you only upon the condition that you accept all the terms contained in this Agreement.  By clicking on the "I accept" button below or by downloading, logging into, installing or using The Web Application, you have indicated that you understand this Agreement and accept all of its terms.  If you are accepting the terms of this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the terms of this Agreement, and, in such event, "you" and "your" will refer to that company or other legal entity.  If you do not accept all the terms of this Agreement, then Delaware.Net is unwilling to license The Web Application to you, and you must return The Web Application to Delaware.Net for a full refund, if you have paid for the license to The Web Application, or, if Delaware.Net has made The Web Application available to you without charge, you must destroy all copies of The Web Application.  

THIS AGREEMENT ("Agreement") is entered into on {todaysDate}, between Delaware.Net, Inc. ("Licensor"), with its principal place of business located at 28 Old Rudnick Lane, Dover, Delaware, 19901 and You, and shall be effective as of {todaysDate} (the "Effective Date").

RECITALS

WHEREAS, Licensor is engaged in the business of providing access to Software and Licensor's application server;

WHEREAS, Licensee desires to retain Licensor to perform the services provided for in this agreement.

NOW, THEREFORE, Licensor and Licensee agree as follows:

1. Grant of License

Subject to the terms and conditions herein, Licensor hereby grants Licensee a nonexclusive  and non-transferable license for you to (i) access and execute the Web Applications on Licensor's application server over the Internet, and (ii) transmit data related to Licensee's use of the Software over the Internet.  Delaware.Net reserves all rights in The Web Application not expressly granted to you in this Agreement.

2. Use and Access

A. Subject to the restrictions on use as set forth herein, Licensee will have access to the Software and Licensor's application server for the purpose of using the software for its intended purpose and in accordance with the specifications set forth in any documentation relating to the Software provided by Licensor. Such use and access will be continuous on a 24/7 basis except for interruptions by reason of maintenance or downtime beyond Licensor's reasonable control.

B. Licensee will use the Software only for its internal business operations and will not permit the Software to be used by or for the benefit of anyone other than Licensee. Licensee will not have the right to re-license or sell rights to access and/or use the Licensed Software or to transfer or assign rights to access or use the Software, except as expressly provided herein. Licensee may not modify, translate, reverse engineer, decompile or create derivative works based upon the Software. Licensee agrees to use the Software in a manner that complies with all applicable laws including intellectual property and copyright laws. Licensor expressly reserves all rights not expressly granted to Licensee herein.

C. Licensee will not: (i) transmit or share identification or password codes to persons other than authorized users (ii) permit the identification or password codes to be cached in proxy servers and accessed by individuals who are not authorized users, or (iii) permit access to the software through a single identification or password code being made available to multiple users on a network.

D. Licensor will provide Fifty (50) gigabytes of space on the application server for Licensee to use for storage of data necessary for use of the Software. If Licensee's use exceeds the base storage space allotted, Licensee will pay a rate of one dollar ($1) per gigabyte (GB) over the allotted storage. Such incremental fees will be calculated on the average monthly storage overage and invoiced monthly.

3. Acknowledgment

The Web Applications allow you to access certain third party Internet applications ("Third Party Applications") and certain content provided by third parties and resources ("Third Party Content") both of which are or may be governed by separate agreements. You acknowledge and agree that Delaware.Net, Inc. is not responsible or liable for: (i) the availability, functionality, or accuracy of such Third Party Applications or Third Party Content; or (ii) the products, or services on or available from such Third Party Applications or through such Third Party Content.  Access to such Third Party Applications or Third Party Content does not imply any endorsement by Delaware.Net of such Third Party Applications or Third Party Content or products, or services available from or through such Third Party Applications or Third Party Content.  You acknowledge sole responsibility for and assume all risk arising from your use of any Third Party Applications or Third Party Content, as well as all responsibility and risk related to any terms and conditions or other agreements which govern such Third Party Applications and Third Party Content and your relationship with the providers of such Third Party Applications and Third Party Content. Furthermore, you agree and acknowledge that by using The Web Application, you are in compliance with the terms and conditions of those Third Party Applications and the Third Party Content which you access through The Web Application and that you remain liable for any such usage. 

4. Links

The Content may contain links to third-party websites or resources.  You acknowledge and agree that Delaware.Net is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources.  Links to such websites or resources do not imply any endorsement by Delaware.Net of such websites or resources or the content, products, or services available from such websites or resources.  You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.

5. Price and Payment

A. Licensee will pay Licensor the following fees for the license of the Software and access to Licensor's application server: A one time implementation fee of zero dollars ($0), and a monthly fee, which is posted on the Web Application's website, due two weeks after the anniversary date of each month for the terms of this agreement. Web Application hosting fees are subject to change, and you will be given thirty (30) days notice of any change in hosting fees. 

B. The fees for the license of the Software do not include taxes. If Licensor is required to pay or collect any federal, state, local, or value-added tax on any fees charged under this Agreement, or any other similar taxes or duties levied by any governmental authority, excluding taxes levied on Licensor's net income, then such taxes and/or duties will be billed to and paid by Licensee immediately upon receipt of Licensor's invoice and supporting documentation for the taxes or duties charged.

6. Technical Support

Licensor will supply telephone support regarding the Software to Licensee on a reasonable and necessary basis during normal weekday business hours, excluding legal holidays. Additionally, Licensor will, if necessary, provide reasonable support to Licensee through electronic and/or written correspondence.

7. Term and Termination

A. The initial term of this Agreement will commence the day the web site interface for the Software is accessible via the Internet, (within a commercially reasonable time after payment is received) and will continue for a period of one (1) year. Thereafter this Agreement will automatically renew for successive one (1) year periods unless either party gives the other party not fewer than thirty (30) days notice of its intent not to renew, or unless terminated earlier under the terms contained within this Agreement.

B. Either party may terminate this agreement for material breach, provided, however, that the terminating party has given the other party at least twenty-one (21) days written notice of and the opportunity to cure the breach. Termination for breach will not preclude the terminating party from exercising any other remedies for breach.

8. Ownership

The copy of The Web Application is licensed, not sold.  You own the information and files uploaded into The Web Applications, but Delaware.Net retains ownership of the copy of The Web Application itself, including all intellectual property rights therein.  The Web Applications are protected by United States copyright law and international treaties.  You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on The Web Application as delivered to you.

The Web Application also provides you the ability to access certain text, graphics, images, music, audio, video, information or other materials provided by Delaware.Net ("The Web Application Content" and collectively with Third Party Content, the "Content") which is protected by copyright, trademark, and other laws of the United States and foreign countries.  Delaware.Net and its licensors exclusively own all right, title and interest in and to the The Web Application Content, including all associated intellectual property rights.  You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Web Application Content. 

9. Confidentiality

A. Licensee acknowledges that the Software and other data on Licensor's application server embodies logic, design and coding methodology that constitute valuable confidential information that is proprietary to Licensor. Licensee will safeguard the right to access the Software and other software installed on Licensor's application server using the same standard of care that Licensee uses for its own confidential materials.

B. All data pertaining to Licensee disclosed to Licensor in connection with the performance of this Agreement and residing on Licensor's application server will be held as confidential by Licensor and will not, without the prior written consent of Licensee, be disclosed or be used for any purposes other than the performance of this Agreement. Licensor will safeguard the confidentiality of such data using the same standard of care that Licensor uses for its own confidential materials. This obligation does not apply to data that: (i) is or becomes, through no act or failure to act on the part of Licensor, generally known or available; (ii) is known by Licensor at the time of receiving such information as evidenced by its written records; (iii) is hereafter furnished to Licensor by a third party, as a matter of right and without restriction on disclosure; (iv) is independently developed by Licensor as evidenced by its written and dated records and without any breach of this Agreement; or (v) is the subject of a written permission to disclose provided by Licensee. Further notwithstanding the forgoing, disclosure of data will not be precluded if such disclosure: (i) is in response to a valid order of a court or other governmental body of the United States; (ii) is otherwise required by law; or (iii) is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary.

10. Warranty and Disclaimer

Licensor warrants the Software is developed and will be provided in conformity with generally prevailing industry standards. Licensee must report any material deficiencies in the Software to Licensor in writing within thirty (30) days of Licensee's discovery of the defect. Licensor's exclusive remedy for the breach of the above warranty will be for Licensor to provide access to replacement Software within a commercially reasonable time. THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. DEVELOPER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES.

11. Limitation of Liability, Indemnification

Neither party will be liable to the other for special, indirect or consequential damages incurred or suffered by the other arising as a result of or related to the use of the Software, whether in contract, tort or otherwise, even if the other has been advised of the possibility of such loss or damages. Licensee will indemnify and hold Licensor harmless against any claims incurred by Licensor arising out of or in conjunction with Licensee's breach of this Agreement, as well as all reasonable costs, expenses and attorneys' fees incurred therein. Licensor's total liability under this Agreement with respect to the Software, regardless of cause or theory of recovery, will not exceed the total amount of fees paid by Licensee to Licensor during the twelve month period immediately preceding the occurrence or act or omission giving rise to the claim.

12. Export Law

You agree to comply fully with all U.S. export laws and regulations to ensure that neither The Web Application nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.

13. Relation of Parties

Nothing in this Agreement will create or imply an agency relationship between the parties, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.

14. Non-assignment

Neither party will assign this Agreement, in whole or in part, without the prior written consent of the other party, and such consent will not be unreasonably withheld. This Agreement will inure to the benefit of, and be binding upon the parties hereto, together with their respective legal representatives, successors, and assigns, as permitted herein.

15. General

This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without regard to or application of conflict of laws rules or principles.  The United Nations Convention on Contracts for the International Sale of Goods will not apply.  You may not assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without Delaware.Net's prior written consent, and any attempt by you to do so, without such consent, will be void.  Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.  All notices or approvals required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt.  All notices or approvals will be sent to the addresses set forth in the applicable ordering document or invoice or to such other address as may be specified by either party to the other in accordance with this section.  The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.  Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties.  If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect.  This Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless you and Delaware.Net have executed a separate agreement.  Any terms or conditions contained in your purchase order or other ordering document that are inconsistent with or in addition to the terms and conditions of this Agreement are hereby rejected by Delaware.Net and will be deemed null.

16. Attorneys' Fees

If any litigation or arbitration is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable attorneys' fees and costs.

17. Severability

If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect.

18. Force Majeure

Neither party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the delayed party's reasonable control.

19. Waiver and Modification

The waiver by any party of any breach of covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing, and signed by the party waiving its rights. This Agreement may be modified only by a written instrument executed by authorized representatives of the parties hereto.

20. Entire Agreement

This Agreement constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein.
 
21. Contact Information

If you have any questions regarding this Agreement, you may contact Delaware.Net by email at info@Delaware.Net or by phone at 88-432-7965, or by postal mail at Delaware.Net Inc, 28 Old Rudnick Lane, Dover, DE 19901 USA.