This SOFTWARE LICENSE AGREEMENT (this “Agreement”) is entered into by and between Bestcompany.com, LLC, a Utah limited liability company (“Licensor”), and the party accessing the Software (“Licensee”), to be effective as of the date Licensee accesses the Software (the “Effective Date”). Each of Licensor and Licensee may be referred to hereinafter individually as a “Party” and collectively as the “Parties.” WHEREAS, Licensor has developed a software program called “Business Suite,” (the “Software”) which provides analytic capabilities with respect to customer reviews, hits, etc. on the webpage www.bestcompany.com (the “Website”); WHEREAS, the Parties desire for Licensor to license the Software to Licensee, subject to the terms and conditions of this Agreement. NOW THEREFORE, in exchange for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
Licensor hereby grants Licensee a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use a portion of the Software designated by Licensor. The Software is made available to Licensee through Licensor’s cloud-based software platform, which is accessible through the Website. In order to access the Software, Licensee will initially be required to enter an access code provided by Licensor. Licensee will then be able to create a profile and set up a user name and password for Licensee’s account. Licensee may not share log-in information. User names and passwords for each account may not be sold. Any unauthorized use of the Software will result in immediate termination of this Agreement, and may give rise to a claim for damages by Licensor. Licensee’s authorized agents may access and use the Software, using Licensee’s log-in information, from any desired computing device, including without limitation desktop computers, laptop computers, tablets, smart phones, and other portable devices.
Licensor reserves all rights not expressly granted to Licensee in this Agreement. The Software is protected by copyright and other intellectual property laws and treaties. Licensor owns all right, title and interest in all intellectual property rights in the Software, including but not limited to copyright derivative works, and/or any trademark, patent, or trade secret rights, as applicable. The Software is licensed, not sold. This Agreement does not grant Licensee (or any others otherwise authorized in accordance with this Agreement) any rights to trademarks or service marks of Licensor, nor any other rights in intellectual property corresponding to this Software, except insofar as required to use the Software under the terms of this Agreement.
Licensee agrees to verify the accuracy of their information, in exchange for the use of a portion of the Software. Licensor shall have the right to modify the amount of reviews required by Licensee or add additional requirements to be fulfilled by Licensee.
Licensee expressly agrees that it will not sublicense, lease, rent, sell, distribute, assign, transfer, reverse engineer, decompile, disassemble, offer the Software for resale, create any derivative works based upon any part of the Software, provide commercial hosting services with respect to the Software, or otherwise allow any unauthorized use of the Software.
Licensee agrees to use its best efforts and take all reasonable steps to safeguard the Software to ensure that no unauthorized person has access to the Software. Licensee agrees that it will not allow any unauthorized copying, publication, disclosure, or distribution of the Software, in whole or in part, in any form. Licensee acknowledges that the Software contains valuable confidential information and trade secrets and that unauthorized use or copying is harmful to Licensor.
This Agreement applies not only to the Software as initially provided, but also to updates, upgrades, supplements, add-on components, or internet-based services components, of the Software that Licensor may provide to Licensee or make available to Licensee after the date Licensee obtains its initial license to use the Software. Licensor reserves the right to discontinue internet-based services provided to Licensee or made available to Licensee through the use of the Software.
Licensor may revoke Licensee’s license to use the Software at any time for any reason and without notice, in Licensor’s sole discretion. Upon such revocation or termination, Licensee will no longer be authorized to access or use the Software.
Licensee represents that it is over the age of 18 and is not a competitor of Licensor.
By entering into this Agreement Licensee agrees to receive communication from Licensor.
Licensor is not responsible for problems associated with or caused by incompatible operating systems or equipment, or for problems in the interaction of the Software with any software not furnished by Licensor.
Licensee acknowledges that the Software will provide Licensee access to contact information for individuals and/or entities who have reviewed Licensee’s products and/or services on the Website. Licensee may use this contact information for purposes of reaching out to reviewers in effort to resolve complaints and unfavorable reviews. Licensee agrees to protect such contact information as confidential, to maintain such confidential information in compliance with all applicable data privacy laws, and to not disclosure or misuse such contact information for any improper purpose. Licensee hereby waives any and all potential claims, damages, and causes of action against such reviewers that relate to or arise out of their reviews of Licensee on the Website. Licensee further agrees to defend, indemnify and hold harmless Licensor and its affiliated entities from any and all claims, damages, penalties, causes of actions, and fines asserted against Licensor that relate to or arise out of Licensee’s receipt, maintenance, use, and disclosure of confidential information of reviewing parties.
THE SOFTWARE IS PROVIDED “AS-IS”, AND LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES TO LICENSEE OR ANY OTHER THIRD PARTY WITH RESPECT TO THE SOFTWARE, AND HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, QUALITY, ACCURACY, PERFORMANCE, FREEDOM FROM ERROR, AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR FURTHER DISCLAIMS ANY AND ALL WARRANTIES THAT THE SOFTWARE IS ERROR-FREE, WILL OPERATE WITHOUT INTERRUPTION, OR WILL ALWAYS BE AVAILABLE, UPDATED, UNINTERRUPTED, TIMELY, SECURE, OR OPERATE WITHOUT ERROR. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR, ITS AGENTS, REPRESENTATIVES, OR EMPLOYEES, SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTY DISCLAIMED HEREIN.
LICENSEE ACKNOWLEDGES AND AGREES THAT IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR THE INABILITY TO USE THE SOFTWARE, INABILITY TO ACCESS DATA/INFORMATION, BUSINESS INTERRUPTION, LOSS OF BUSINESS, LOST PROFITS, LOST REVENUES, OR INCREASED COST OF OPERATIONS, BASED ON ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF LICENSOR OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. LICENSEE AGREES THAT LICENSOR’S TOTAL LIABILITY SHALL BE LIMITED TO PROVEN DIRECT DAMAGES NOT TO EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY LICENSEE FOR LICENSEE’S USE OF THE SOFTWARE NOT TO EXCEED $100.
The warranty disclaimer, exclusive remedies and limited liability set forth above are fundamental elements of the basis of the agreement between Licensor and Licensee. Licensor would not be able to provide the Software to Licensee without such limitation. Furthermore, the limitations or exclusions of warranties, remedies or liability contained in this Agreement shall apply to Licensee only to the extent such limitations or exclusions are permitted under applicable law, which may vary from state to state.
To the maximum extent permitted by law, Licensee hereby agrees to defend, indemnify and hold harmless Licensor, its affiliates and their respective directors, officers, employees and agents, from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys fees) arising out of or accruing from (a) Licensee’s use of the Software, and (b) any non-compliance by Licensee with this License Agreement.
This Agreement may not be modified or amended by Licensee without Licensor’s express written consent. Licensor may modify or amend this Agreement at its sole discretion. Licensee shall be deemed to have accepted such modified or amended terms by its continued use of the Software following such written notice.
This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersedes any other understandings. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.
In the event of a legal dispute regarding the enforcement of this Agreement, the prevailing party in such dispute shall be entitled to recover from the other party all costs and fees, including reasonable attorneys fees relating to such dispute.
By accessing and using the Software, Licensee hereby agrees to be bound by the terms and conditions of this Agreement.