Blue Lion Software License and Support Services Agreement, September 1, 2013
BLUE LION Software License and Support Services Agreement
This BLUE LION Software License and Support Services Agreement (the “Agreement”) is made and entered into between BLUE LION Conflict Solutions (“BLUE LION”), a Texas Limited Liability Corporation (LLC) having its principal offices at Austin, Texas, and USER who clicks “I ACCEPT” at the end of this document. BLUE LION is herein referred to as the “Licensor” and USER herein referred to as “Licensee.” Licensee acknowledges that PREFERRED PATH and BLUE LION are trademarks of BLUE LION Conflict Solutions, LLC.
- BLUE LION has acquired certain know-how, expertise and experience related to resolution of issues, problems, complaints, claims, and lawsuits, and has developed its own software and materials, training, and support for use in implementing these tools by individuals and organizations.
- USER desires to use BLUE LION’s software as accessed through web browser and to receive technical support as needed in using the software from BLUE LION.
- BLUE LION is willing to permit use by USER of BLUE LION’s software, and support services pursuant to the license and services described in this Agreement.
NOW, THEREFORE, in consideration of the covenants and mutual promises contained herein, and for other good and valuable consideration, BLUE LION and Licensee hereby agree as follows:
Terms of Agreement
Section 1: Definitions
As used in this Agreement, the following terms shall have the meanings indicated
1.1 “BLUE LION SOFTWARE” refers to a web-based application that may apply to conflict resolution involving individuals and/or group.
1.2 “BLUE LION SUPPORT” refers to technical support, namely, telephone or web accessed communication and resolution for technical issues regarding software, including maintenance.
1.3 USER is a person who clicks “I ACCEPT” below and accesses BLUE LION software through a web browser.
Section 2: Grant of Limited License
2.1 Subject to the terms and conditions of this Agreement, BLUE LION hereby grants Licensee a limited right to use the BLUE LION SOFTWARE AND SUPPORT.
2.2 This License Agreement applies only to the BLUE LION SOFTWARE in the version as it exist as of the date of this License Agreement, and does not apply to other versions that BLUE LION may hereafter create or to any other information or materials, whether similar or dissimilar to the BLUE LION SOFTWARE that BLUE LION may hereafter create.
2.3 The following provisions relate to the BLUE LION Software:
a. BLUE LION as Licensor grants to Licensee the right to enable Licensee’s employees as set forth in this Agreement, to access and use the BLUE LION Software wherever Licensor provides Licensee access during the term of this Agreement. The BLUE LION Software will reside on an external server hosted by a third party server of Licensor’s choosing and access for USER will be by way of a posted web address.
Other than the copy of the BLUE LION Software that is made automatically when accessing the BLUE LION Software for use, no other copies are authorized by this License. Licensee agrees not to copy, reverse engineer, disassemble or otherwise attempt to determine the source code of the BLUE LION Software or to permit any other person to do so.
b. Notwithstanding the license rights granted to the BLUE LION Software, the parties agree that the BLUE LION Software is and remains the property of Licensor and is protected by applicable copyright laws. Licensee further agrees that it may not copy the documentation that accompanies the BLUE LION Software, or sublicense, rent or lease any portion of the BLUE LION Software.
Section 3: BLUE LION Software and Licensee’s Use of BLUE LION Software
3.1 By clicking I ACCEPT Licensee will have access to the BLUE LION SOFTWARE as accessed through the web address www.bluelionconflictsolutions.com.
3.2 The BLUE LION SOFTWARE is copyrighted and owned by BLUE LION and are made available to Licensee under license from BLUE LION. LICENSEE’S PAYMENT DOES NOT CONSTITUTE A PURCHASE OF THE BLUE LION SOFTWARE, AND LICENSEE’S RIGHT TO USE THE BLUE LION SOFTWARE IS NONTRANSFERABLE. THIS MEANS THAT LICENSEE IS NOT AUTHORIZED TO SELL, LEASE, OR OTHERWISE TRANSFER THE LICENSED BLUE LION SOFTWARE OR ANY PORTION THEREOF TO INDIVIDUALS OR COMPANIES WHETHER OR NOT FOR COMMERCIAL GAIN. LICENSEE’S RIGHT TO USE LICENSED BLUE LION SOFTWARE IS LIMITED TO USE UNDER AND PURSUANT TO THE EXPRESS TERMS AND CONDITIONS OF THIS AGREEMENT AND VIOLATION OF THESE TERMS AND CONDITIONS WILL CONSTITUTE A BREACH OF THIS AGREEMENT AND/OR A VIOLATION OF FEDERAL COPYRIGHT LAWS.
3.3 Licensee covenants and agrees that BLUE LION will own all enhancements, subject to the terms and conditions of this Agreement.
Section 4: BLUE LION Support Services
BLUE LION will provide technical support for the software, available to Licensees, 8:00 a.m. – 5:00 p.m. CT These services will be provided for a period of 12 months in consideration of payment of the fees, and continued annually, if, and only if, the annual support fees are paid.
Section 5: Payment by Licensee
5.1 Upon execution of this agreement, USER shall pay BLUE LION a fee to cover one year’s use of software and support.
5.2 This fee will be renewed annually until USER provides notice of termination.
Section 6: Transferability
Licensee may not transfer any of the BLUE LION SOFTWARE in whole or in part without the prior written approval of BLUE LION. Any attempted transfer without prior written consent shall be null and void.
Section 7: Maintenance and Infringement of Copyrights
7.1 Licensee will not at any time do or cause to be done any act or thing contesting or in any way impairing or intending to impair the copyrights in any materials provided by BLUE LION to Licensee under this Agreement. Licensee shall not in any manner represent that it has ownership of the copyrights in any such materials.
7.2 Within thirty (30) days of discovery, Licensee agrees to promptly report to BLUE LION all facts relating to any infringement of the copyrights in any materials provided by BLUE LION to Licensee under this Agreement. BLUE LION agrees to prosecute all infringers or such copyrights to the best of its ability and at its own expense, when, in BLUE LION’s judgment, prosecution is justified. Licensee agrees to cooperate fully with BLUE LION in the prosecution of any such infringers.
Section 8: Copyright Warranty
8.1 BLUE LION believes BLUE LION SOFTWARE is an original product that does not infringe upon anyone else’s copyright and agrees to indemnify Licensee against any and all costs, damages, and/or attorney’s fees that may be incurred by and/or awarded against Licensee as a result of such infringement, provided that:
- Licensee shall promptly notify BLUE LION in writing of any claim of infringement; and
- BLUE LION shall have sole control over the defense and disposition of such claim, including settlements or compromise, if any.
8.2 Notwithstanding the provisions of paragraph 10.1 above, BLUE LION shall have no liability to Licensee with respect to any claim of infringement that is based upon any unauthorized use, distribution, or modification by Licensee of the BLUE LION SOFTWARE provided by BLUE LION to Licensee under this Agreement.
Section 9: Limitation on Warranties
NOTWITHSTANDING THE FOREGOING OR ANYTHING HEREIN TO THE CONTRARY, THE PARTIES UNDERSTAND AND AGREE THAT:
- THE BLUE LION SOFTWARE, AND ANY OTHER PART OF THE BLUE LION SOFTWARE AND ANY ACCOMPANYING FILES AND/OR DOCUMENTATION, AND ANY OTHER WORK PRODUCT PROVIDED UNDER THE TERMS OF THIS AGREEMENT ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES AS TO PERFORMANCE OR MERCHANTABILITY OR ANY OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT PERMITTED BY LAW. FURTHER, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER AND THE PARTIES AGREE THAT THE ENTIRE LIABILITY OF LICENSOR UNDER ANY PROVISION OF THIS LICENSE AND LICENSEE’S EXCLUSIVE REMEDY HEREUNDER SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY LICENSEE OR U.S. $5.00. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
- BLUE LION SHALL BEAR NO RESPONSIBILITY AND SHALL NOT BE LIABLE IN ANY MANNER FOR ANY DAMAGES, WHETHER ACTUAL OR INCIDENTAL, CONSEQUENTIAL OR OTHERWISE INCURRED BY ANY PARTY, ARISING OUT OR ATTRIBUTABLE IN ANY MANNER TO:
- USE OR APPLICATION OF THE BLUE LION SOFTWARE OR MEANS, METHODS OR TECHNIQUES CONTAINED THEREIN, OR
- THE APPLICATION OF MEANS, METHODS OR TECHNIQUES LEARNED IN ANY TRAINING PROVIDED UNDER THIS AGREEMENT.
THE FOREGOING SHALL APPLY TO ANY USE THEREOF, WHETHER BY USER OR THEIR RESPECTIVE EMPLOYEES OR ANY OTHER PERSON CLAIMING UNDER OR THROUGH LICENSEE OR ANY OTHER PERSON.
- BLUE LION SHALL NOT BE LIABLE FOR ERRORS OR OMISSIONS IN ANY BLUE LION SOFTWARE OR METHODS OR SUPPORT GIVEN UNDER OR PURSUANT TO THIS AGREEMENT, INCLUDING OMBUDS/HELP LINE/CONVENING SUPPORT.
- BLUE LION DOES NOT GUARANTEE, AND CANNOT GUARANTEE, ANY EXPENSE OR LIABILITY SAVINGS WILL ARISE OUT OF OR WILL DIRECTLY OR INDIRECTLY RESULT FROM THE APPLICATION OR USE BY LICENSEE OR ANY OTHER PERSON OF ANY BLUE LION SOFTWARE. NO REPRESENTATION AS TO ANY COST SAVINGS HAS BEEN OR WILL BE MADE. SETTING OF FEE BASED ON COST SAVINGS IS ONLY TO ESTABLISH A BENCHMARK FOR COMPENSATION AND DOES NOT GUARANTEE ANY SPECIFIC RESULT.
Section 10: Term and Termination
10.1 This Agreement shall become effective on the date that USER clicks I ACCEPT, and shall end one year later, but may be renewed upon payment of payment pursuant to Section 7.2 above.
10.2 In addition to any other remedy available at law or in equity, Licensor may terminate this agreement immediately if, at any time, Licensee fails to comply with any of the terms or conditions of this Agreement, including specifically but without limitation Licensee’s obligation to make payments to Licensor. Failure to exercise Licensor’s right to terminate for a breach of this License, or to exercise any other remedy, shall not be construed as a waiver by Licensor to demand strict performance in the future.
The parties agree that following any delay in payment of the fees set forth in Section 7.1 above any use of the BLUE LION software by Licensees or any other person acting through Licensee shall be an unlicensed use and a willful infringement of the Licensor’s rights including all BLUE LION SOFTWARE.
10.3 Licensee may terminate this Agreement for any reason by giving Licensor a notice of intent to terminate in writing at Licensor’s address as herein stated and such termination shall be effective upon expiration of thirty (30) days after receipt of the notice. Any amounts previously paid to BLUE LION under Section 7.1 above shall be retained by BLUE LION upon termination.
Section 11: Miscellaneous Provisions
11.1 Titles and headings in this Agreement are for convenience of reference only and shall not be construed in any way to affect the substance of this Agreement or the manner in which any provision is construed. In interpreting this Agreement, the plural shall be construed to include the singular, and vice versa, and every gender shall be construed to include every other gender.
11.2 The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement and each provision shall be enforced to the maximum extent permitted by applicable law.
11.3 This Agreement is a binding agreement. By execution below, Licensee acknowledges that it has read this Agreement and agrees to be bound by its terms and conditions.
11.4 This Agreement is the complete and exclusive statement of the agreement between Licensee and BLUE LION, and this Agreement supersedes all proposals or prior agreements and understandings pertaining to the license of BLUE LION SOFTWARE by Licensee, whether oral or written, and all other communications relating to the subject matter of this Agreement.
11.5 This Agreement may only be amended, or any provision herein waived, by written instrument executed by each party hereto. No waiver of any provision hereof shall constitute a waiver of any other provision hereof, whether or not similar, nor shall such waiver constitute a continuing waiver unless otherwise expressly provided herein.
11.6 This Agreement and its validity and interpretation shall be governed by and construed in accordance with the laws of the State of Texas, and venue is agreed to be in courts of competent jurisdiction in Austin, Travis County, Texas, notwithstanding any choice of law rules of Texas or any other state or jurisdiction.
11.7 If there are issues, problems, or conflicts regarding any aspect of this agreement, the parties agree to discuss these with one another and reach a mutually agreeable resolution. If despite these efforts, the parties fail to resolve the matter in dispute, upon the request of either party, the matter in dispute will be submitted to a mutually agreeable mediator for resolution, with mediation to begin within 30 days from the request for mediation. Neither party will unreasonably withhold his, her or its consent to the selection of a mediator.
If any party elects to engage an attorney to represent him/her, that party will retain counsel who will represent that party through the process of negotiation or mediation only (“Track 1”), disqualifying him/herself from any subsequent arbitration or litigation in the matter. Each party agrees that his or her representation in subsequent arbitration or litigation, if any, will be provided by another attorney (“Track 2”) who has no business relationship with the Track 1 attorney. The use of the foregoing dispute resolution alternatives will not be construed under the doctrines of laches, waiver or estoppel to affect adversely the rights of any party. Nothing in this section should be construed to prevent any party from resorting to judicial proceedings if (a) good faith efforts to resolve the dispute under the negotiation and mediation procedures have been unsuccessful or (b) interim relief from a court is necessary to prevent serious and irreparable injury.
BLUE LION Conflict Solutions, LLC
1250 S. Capital of Texas Hwy, Bldg 3, Suite 400
Austin, Texas 78746
By clicking ACCEPT at Checkout, User agrees to the terms of this agreement.