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The Bizglove™, Inc. Application Service Provider Agreement
("Agreement") and Bizglove's
Acceptable Usage Policy ("AUP") govern your purchase and
use of all Bizglove services (collectively, the " Services "),
as described in the Order Form(s) submitted by you and accepted by
Bizglove. You must register and accept the terms of this Agreement and
the AUP in order to use the Services. BY INDICATING "YES" TO
THE TERMS AND CONDITIONS OF USE, AND/OR REGISTERING FOR AND USING THE
SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND THE AUP
AND AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT AS
WELL AS ALL POLICIES AND GUIDELINES OF THE AUP, WHICH ARE INCORPORATED
HEREIN BY REFERENCE. Bizglove may modify any of the terms and conditions
contained in this Agreement and the AUP, at any time in its sole
discretion. Any modifications are effective upon posting of the
revisions on the Bizglove web site ("Site"). Your continued
use of the Services following Bizglove's posting of any modifications
constitutes your acceptance of the modifications. If you do not agree to
the terms of any modification, do not continue to use the services and
immediately notify Bizglove of your termination of this Agreement in the
manner described in Section 5 below.
WHEREAS, Bizglove is a provider of services that permits users
to access a web-based software application known as Property Prospector™
("Product"); and
WHEREAS, Customer desires to engage Bizglove to perform certain
services, and to provide Customer with direct access to the Property
Prospector Product Website ("Product Site"); and
WHEREAS, Bizglove, or its hosting partner, desires to provide
certain services to Customer and to host the Product Site subject to the
terms, conditions and restrictions set forth herein:
NOW, THEREFORE, in consideration of the promises hereof, and the
mutual obligations herein made and undertaken, the parties hereto agree
as follows:
1. SERVICES.
1.1 Bizglove agrees to perform and to provide to Customer, the
services set forth herein ("Services").
2. CUSTOMER RIGHT OF USE.
2.1 Bizglove grants to Customer and Customer agrees to accept a
non-transferable and non-exclusive right to access and to use the
Product Site and the Product Offering as defined below, for its
internal use, in accordance with the terms of this Agreement.
3. PROPRIETARY RIGHTS.
3.1 Ownership. Customer acknowledges and agrees that this Agreement
grants Customer no title or right of ownership in or to the Product
Site or Product software application or any component thereof, or to
any associated materials or intellectual property, or in or to any
enhancements, modifications or improvements (collectively referred to
hereinafter as the "Product Offering"). Customer shall not,
at any time, take or cause any action, which would be inconsistent
with or tend to impair the rights of Bizglove or its licensors in the
Product Offering.
3.2 Ownership of material data for the Product Site shall remain
with the Customer. Such data includes Customer's corporate data,
including registration data, supplied and input by or on behalf of
Customer ("Customer Data"). Bizglove agrees not to use any
Customer Data for any purpose other than to perform the Services and
fulfill its obligations under this Agreement. Bizglove further agrees
not to make Customer Data available to any third party without
Customer's prior written consent.
4. MAINTENANCE AND SUPPORT.
4.1 Provided that Customer is current in its payment of fees under
this Agreement, Bizglove shall provide to Customer its standard
technical support and maintenance, at no additional charge. Standard
support and maintenance shall include the following:
(a) Bizglove support personnel shall be available to provide
assistance via email or the support desk system in the product
directly to Customer during Bizglove's normal business hours (9:00am
to 5:00pm EST M-F);
(b) delivery of enhancements, updates and upgrades to the Product
Offering that Bizglove makes generally and commercially available to
other customers without levying an incremental fee (collectively
"Improvements");and
(c) standard error correction and maintenance modifications.
4.2 Notwithstanding the above, if Bizglove makes a reasonable
business determination that the technical support requested by
Customer pursuant to this section will entail detailed, specialized
maintenance or support services different in kind or amount from those
provided to other similar customers of the Product Offering
(including, but not limited to, assistance to enable the interfacing
or operation with a non-supported, unusual or proprietary system,
Customer requested data restore), Bizglove shall notify Customer that
the requested support is considered an additional service which shall
be subject to additional fees, to be negotiated.
4.3 Bizglove, or its hosting partner, shall also have
responsibilities to:
(a) provide all necessary hardware and communications facilities
in connection with delivery of Services;
(b) use reasonable commercial efforts to monitor and maintain the
host servers and to ensure continuous connectivity, availability and
operation of the Product Site on the World Wide Web.
4.4 Security. Bizglove, or its hosting partner, shall offer access
to the Product Site using the Internet, by hosting its application.
Bizglove, or its hosting partner, shall operate and maintain the
Product server ("Server") in good working order with access
restricted to qualified employees or contractors of Bizglove and
persons designated by Customer. Bizglove, or its hosting partner,
shall employ its best commercial efforts to ensure the security,
confidentiality and integrity of all Customer Data and other
proprietary information transmitted through or stored on the Server,
including, without limitation; (i) maintenance of independent archival
and backup copies of the Product Site and all Customer Data; and (ii)
protection from any network attack and other malicious, harmful or
disabling data, work, code or program.
4.5 Backup. Bizglove, or its hosting partner, shall maintain backup
information on all customer data in the application on a monthly
basis. Bizglove provides a utility for customers to perform backups on
a more frequent basis and it is the customer's responsibility to make
these backups. Failure by the customer to make more frequent backups
may result in data loss.
4.6 Assistance From Customer. Customer agrees to make available
appropriate personnel to advise Bizglove in the performance of
obligations under this Agreement and to provide Bizglove any Customer
Data required for successful operation of the Product Site.
4.7 Customer and Bizglove agree that responsibility for
trouble-free operation of the Product Site is dependent on a
combination of reliability; proper hardware configuration, including
backup hardware configurations, backup power sources and backup
communication facilities; a virus-free environment; system backup
procedures; and Customer's adherence to Bizglove's recommended
practices.
4.8 Notwithstanding the above, Customer understands and
acknowledges that from time to time, the Product Site may be
inaccessible or inoperable for various reasons, including equipment
malfunctions, upgrades or modifications, or causes beyond the control
of Bizglove which are not reasonably foreseeable by Bizglove,
including interruption or failure of telecommunication or digital
transmission links, hostile network attacks or network congestion or
other failures (collectively "Downtime"). Bizglove shall use
its best commercial efforts to minimize any disruption,
inaccessibility and/or inoperability of the Product Site and in the
case of any scheduled Downtime, if applicable, Bizglove shall provide
twenty-four (24) hour advance notice to Customer or such other shorter
period of time as Bizglove shall reasonably determine.
5. TERM AND TERMINATION.
5.1 Term. This Agreement shall commence upon the Effective Date and
automatically renew for successive renewal terms ("Renewal Term(s)
"), unless either party gives the other party written notice of
its desire to terminate at least thirty (30) days prior to the end of
the then current Renewal Term. If the Customer terminates the Service
prior to the Renewal Term, and Bizglove received prepaid annual
hosting fees, the hosting fee will convert to the current monthly rate
with the remaining amount refunded to the Customer.
5.2 Termination. In addition to such other rights and remedies as
may be available in law or in equity, should either party commit a
material breach of its obligations hereunder, or should any of the
representations of either party in this Agreement prove to be untrue
in any material respect, the other party may, at its option, terminate
this Agreement with thirty (30) days' written notice of desire to
terminate, which notice shall identify and describe the basis for such
termination. If, prior to expiration of such period, the defaulting
party cures such default, termination shall not take place.
5.2.1 Either party may, at its option, by written notice,
terminate this Agreement if the other party has materially breached
any provision of this Agreement and such breach remains uncured for
a period of thirty (30) days following receipt of notice.
5.2.2 Termination of this Agreement shall not relieve either
party of the obligations incurred hereunder pursuant to Section 3
and Sections 6 through 12 hereof, which Sections shall survive such
termination.
5.2.3 Upon termination of this Agreement for any reason, Customer
shall immediately cease all use of the Product Offering and return
or purge any and all components thereof, including returning or
destroying or causing to be destroyed any and all copies of any
documentation, notes and other materials comprising or regarding the
Product Offering.
5.2.4 If the Customer violates Bizglove's AUP, Bizglove can
terminate this agreement without
6. COPYRIGHTS AND TRADEMARKS.
6.1 Bizglove shall have and retain sole ownership of any and all
Bizglove trademarks, including the goodwill pertaining thereto.
Customer shall not remove or alter any of Bizglove proprietary or
copyright notices, trademarks or logos.
7. BIZGLOVE FEES.
7.1 The fees are subject to change from time to time in Bizglove's
sole and absolute discretion.
8. CONFIDENTIALITY.
8. 1 Customer acknowledges that the Product Offering is unique and
valuable and has been developed or otherwise acquired by Bizglove at
great expense, and that any unauthorized disclosure or use of the
Product Offering or any component thereof, would cause Bizglove
irreparable injury and loss, for which damages would be an inadequate
remedy.
8.1.1 Bizglove and Customer shall advise all their employees,
agents or contractors that they are bound by the confidentiality
terms of this Agreement. Further, Customer and Bizglove shall advise
their employees, agents or contractors that they are bound by the
confidentiality terms of this Agreement. Further, each party agrees
that during the performance of this Agreement it may receive
information relating to the other party that is not generally known
or that is of a proprietary nature ("Confidential
Information"). Each party agrees not to use or disclose any
Confidential Information except for the purpose of meeting its
obligations under this Agreement, and will not use Confidential
Information for any other purpose whatsoever. Confidential
Information shall not include any information that is (a) generally
known or available to the public; (b) already known at the time of
receiving the Confidential Information through no wrongful act of
the other party; or (c) furnished by a third party with the right to
do so. In the event that either party is required to disclose
Confidential Information relating to the other party to a court or
government agency, it shall, prior to disclosure, and as soon as
practicable, notify the other party and allow it an adequate
opportunity to object to the disclosure order or take other action
to preserve the confidentiality of the information.
8.1.2 Customer shall not decompile, reverse engineer, translate,
or generate source code with respect to the Product Offering or any
component thereof.
9. LIMITED WARRANTIES.
9.1 Each party represents and warrants that it has the right, power
and authority to enter into this Agreement and to perform all of its
obligations hereunder.
9.2 Bizglove represents and warrants that Services performed under
this Agreement will be performed using generally accepted industry
standards and will substantially conform to the specifications,
provided, however, that Bizglove shall not be liable for violation of
any applicable law, rule or regulation or any third party associated
with customer content provided to Bizglove by Customer.
9.3 To the knowledge of Bizglove, the Product Offering and any
component thereof does not violate any applicable law, rule or
regulation or any third party, including any patent, trademark, trade
name, copyright, trade secret or other intellectual property right.
Bizglove shall defend Customer against any claim that the use of the
Product Offering or any component thereof by Customer as permitted
under this Agreement constitutes a patent or copyright infringement,
but only to the extent that the action relates solely to the Product
Offering, not materially altered or modified by or on behalf of
Customer, and is not based on use of the Product Offering on other
than the system for which the Product Offering was designated,
provided that: (a) Customer give Bizglove written notice within ten
(10) days of notice of any such claim; (b) Bizglove controls the
defense of any action and has the right to settle; and (c) Customer
fully cooperates with Bizglove in the defense of such claim. In the
event that the use of the Product Offering is enjoined by a court of
competent jurisdiction, because of a holding of patent or copyright
infringement, Bizglove at its sole option, shall: (a) procure for
Customer the right to continue using the Product Offering; or (b)
modify the Product Offering to make it non-infringing, while still
performing substantially the same functions set forth in the
Specifications.
9.4 THE WARRANTIES MADE IN THIS AGREEMENT ARE THE ONLY WARRANTIES
MADE BY BIZGLOVE WITH RESPECT TO SERVICES AND SOFTWARE PROVIDED
HEREUNDER AND ARE MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES AND
REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR
PURPOSE AND MERCHANTABILITY.
9.5 Bizglove shall not be responsible for any delay in the delivery
of Services, including implementation, support or maintenance, which
is due to Customer's failure to provide assistance as provided under
this Agreement.
10. INDEMNITY
10.1 Customer and Bizglove agree to indemnify and hold harmless
each other from and against any losses, damages, liabilities and
expenses resulting from any claims made by any third party which
arises from or is in any way connected with the performance by
Bizglove of its obligations hereunder (except gross negligence), or
Customer's use of all or any component of the Product Offering.
11. LIMITATION OF LIABILITY.
11.1 BIZGLOVE'S TOTAL ACCUMULATED LIABILITY TO THE CUSTOMER OR TO
ANY THIRD PARTY FOR ANY LOSS, DAMAGES, COSTS OR EXPENSES WHETHER IN
STRICT LIABILITY, NEGLIGENCE, CONTRACT OR OTHERWISE, ARISING OUT OF OR
IN CONNECTION WITH THIS AGREEMENT, SHALL BE LIMITED TO FEES ACTUALLY
PAID BY CUSTOMER HEREUNDER.
11.2 NEITHER BIZGLOVE NOR CUSTOMER SHALL BE LIABLE TO THE OTHER FOR
ANY LOST PROFITS, CONSEQUENTIAL, INCIDENTAL AND/OR CONTINGENT DAMAGES
WHATSOEVER, EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE
POSSIBILITY OF SUCH DAMAGES.
12. MISCELLANEOUS.
12.1 Entire Agreement. This Agreement, together with the AUP
hereto, which are incorporated herein by reference, comprise the
entire agreement between the parties relating to the subject matter
hereof. This Agreement supersedes all prior and contemporaneous
agreements, proposals, or representations, written or oral, concerning
the subject matter of this Agreement. This Agreement may not be
modified or amended except in writing signed by a duly authorized
representative of each party; no other act, document, usage, or custom
shall be deemed to amend or modify this Agreement.
12.2 Independent Contractors. The relationship of the parties
hereunder shall be that of independent contractors. Nothing in this
Agreement shall be construed to constitute a partnership between or
joint venture of the parties, nor shall either party be deemed the
agent of the other party or have the right to bind the other party in
any way without the prior written consent of such party, except as
specifically provided in this Agreement.
12.3 Waiver. No term or provision of this Agreement shall be deemed
waived and no breach excused unless such waiver or consent is in
writing and signed by the party that has given such waiver or excused
such breach.
12.4 Governing Law. ANY LEGAL CLAIMS BROUGHT BY CUSTOMER AGAINST
BIZGLOVE SHALL BE BROUGHT IN GEORGIA AND ANY LEGAL CLAIMS BROUGHT BY
BIZGLOVE AGAINST CUSTOMER SHALL BE BROUGHT IN GEORGIA COURTS AND SHALL
BE GOVERNED BY GEORGIA LAW WITHOUT REGARD TO THE CONFLICT OF LAWS
PRINCIPLES THEREOF.
12.4.1 If a dispute arises out of or relates to this Agreement,
or the breach thereof, the parties agree to try in good faith to
settle the dispute by mediation under the Commercial Mediation Rules
of the American Arbitration Association, before resorting to
litigation, except that the parties agree that intellectual property
rights are not to be the subject of any mediation.
12.5 Force Majeure. In the event that either party hereto shall be
delayed or hindered or prevented from the performance of any act
required hereunder by reason of strikes, lock-outs, labor troubles,
inability to procure materials or services, failure of power, riots,
insurrection, war or other reasons of a like nature not the fault of
the party delayed in performing work or doing acts required under the
terms of this Agreement, such party shall immediately provide notice
to the other party of such delay, and performance of such act shall be
excused for the period of the delay and the period for the performance
of any such act shall be extended for a period equivalent to the
period of such delay.
12.6 Notices. All notices, requests, demands, directions, and other
communications given to or made upon any party hereto under the
provisions of this Agreement shall be in writing (including facsimile
communication), shall be deemed received by the Customer when Bizglove
uses the Client Information contained on the 'My Info' page of the
Bizglove Billing System. Notices to Bizglove shall be deemed given
when received, and shall be sent to: Bizglove, Inc., 2750 Buford
Highway, Suite 5D, Box 235, Duluth, GA 30096 or Faxed to: (678)
584-1687.
Either party may at any time designate another address for the
receipt of notice by notifying the other party in accordance with this
Section 12.6.
12.7 Severability. If any provision of this Agreement is held
invalid or unenforceable by any court or agency of competent
jurisdiction, the parties shall mutually agree on an alternate,
legally valid and enforceable provision. The remainder of this
Agreement shall nevertheless continue in full force and effect to the
extent that continued operation under this Agreement without the
invalid or unenforceable provision is consistent with the intent of
the parties as expressed in this Agreement.
12.8 Taxes. Customer shall pay any federal, state, county or local
sales, property, investment, use and/or other applicable taxes arising
out of Customer's acquisition of the services of Bizglove under this
Agreement, except any taxes on Bizglove's income, whenever imposed.
Upon request of Bizglove, Customer shall obtain and provide to
Bizglove any certificate of exemption or similar document required to
exempt Customer from any such tax liability. In the event that (i) any
taxes are paid by Bizglove on behalf of Customer, (ii) Bizglove has
received payment therefore from Customer, and (iii) it is thereafter
determined that Customer may be entitled to a refund of any such
taxes, or a portion thereof, then Bizglove shall file the appropriate
documents to receive such refund at Customer's request, and Bizglove
shall pay such refund to Customer upon receipt of such refund.
12.9 Execution in Counterparts. This Agreement may be executed in
several counterparts, each of which shall be deemed to be an original,
and all of which, when taken together, shall constitute one and the
same instrument.
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