THIS LICENSED APPLICATION CUSTOMER AGREEMENT (“Agreement”) is executed by and between (“Customer”) and RED FUNNEL CONSULTING, LLC (“Red Funnel”).
The parties agree as follows:
- Purpose. This Agreement states the terms that govern Customer use of the FatStax® Application Platform and accompanying services (collectively, “Licensed Application”).
- Agreement. The parties agree that this Agreement, all appendices, additional terms, proposals, statements of work, orders, purchase orders, privacy terms, software licenses, and all of Red Funnel’s rules and policies as may be mutually agreed upon by both parties from time to time collectively constitute the “Agreement” between Customer and Red Funnel.
- License. Red Funnel represents and warrants that it has the right to license the Licensed Applications under this Agreement. The Licensed Application is licensed as a non-transferable license to Customer to use only under the terms of this Agreement, including on hardware that Customer or Customer’s employee or contractor with whom Customer has licensed the use of Licensed Application control or own as permitted by any usage rules of said hardware. Customer may not rent, lend, sell, or sublicense to anyone but a Registered User.
- Registered User. “Registered User” shall be defined as an individual employed by or in contract with Customer for whom Customer has licensed the use of the Licensed Application. Each individual Registered User is required to purchase a named user license and have a unique user name and password in order to access any FatStax applications. Customer is permitted to assign the use of the Licensed Application to Registered Users consistent with Customer’s License. Customer is solely responsible for all Registered Users’ compliance with this License.
- Replacement or Supplement to License. Red Funnel reserves the right, in its sole discretion, to make necessary unscheduled changes, updates, or enhancements to the Licensed Application and to remove, add, suspend, or stop functionalities or features of Licensed Application at any time (“Changes”). The terms of the License will govern any Changes protected by Red Funnel that replace and/or supplement the original Licensed Application, unless such Change is accompanied by a separate license. If the Change is accompanied by a separate license, then the terms of that license will govern.
- Log-in Credentials. Customer is solely responsible for keeping all account and password information (“Log-in Credentials”) confidential and for all activities that take place with Customer’s account and Registered Users’ accounts. Customer may not authorize any third party to access or use the Licensed Application unless Red Funnel approves such third party access and provides a mechanism for the third party access. If Customer suspects any security breach or unauthorized use, then Customer must immediately contact Red Funnel and change Customer’s log-In credentials. Red Funnel will not be liable for any loss or damage arising from any unauthorized use or security breach.
- Price and Term. Customer agrees to pay for Red Funnel’s service in accordance with any sales order, sales proposal, statement of work, or purchase order, or similar written requests for goods or service. All such requests for services shall be made a part hereof and incorporated herein. Red Funnel’s quotation, sale, and/or acceptance of Customer’s sales order, sale proposal, statement of work, or purchase order for Red Funnel’s product are expressly conditioned upon Customer assent to this Agreement. Customer use of the Licensed Application is deemed to constitute Customer assent to this Agreement. By requesting a proposal from Red Funnel or presenting an order to Red Funnel, customer agrees that any sales order, sales proposal, statement of work, or purchase order shall govern all purchases by customer from Red Funnel in accordance with this agreement. No changes or additional terms will change this agreement unless acknowledged in writing and signed by an authorized representative of Red Funnel.
- Termination. If Customer or any Registered User fails to comply with any provision of this Agreement as defined in Section 2, then Customer’s or any Registered User’s rights under this License will terminate. Upon termination of this Agreement, the ability to use the Licensed Application and Services (defined below) shall terminate.
- Content: Except as this Agreement provides in Sections 10 and 11 and for material Red Funnel licenses to Customer, Red Funnel does not own content that is transmitted, stored, or processed in Customer or Customer’s Registered User’s account. Red Funnel does not control, verify, or endorse such content. If Customer chooses to grant access to Customer content to other users, then Customer is solely responsible for controlling that access and Customer content may become available to any user with whom Customer has shared content.
- Proprietary Nature of Licensed Application. Customer and Customer’s Registered User’s acknowledge that the Licensed Application contains proprietary content, information, and material that is protected by applicable intellectual property and other laws, including without limitation, trade secret, trademark, copyright, and service marks (“Proprietary Content”). Customer nor Customer’s Registered Users will use Proprietary Content except as permitted by this Agreement. Customer nor Customer’s Registered Users will reverse engineer, duplicate, translate, modify, copy, printout, disassemble, decompile or otherwise tamper with the Licensed Application or any accompanying software unless Red Funnel provides prior written consent.
- Ownership of Proprietary Content. Red Funnel shall own all rights, title and interest, including without limitation, all intellectual property rights, in and to any improvements, upgrades, or modifications to the Licensed Application, whether developed by Red Funnel or developed as a result of Customer’s request. If ownership in any improvements or modifications does not automatically vest in Red Funnel by virtue of this Agreement or otherwise, Customer hereby transfers and assigns and causes all affiliates, if any, to transfer and assign, to Red Funnel all rights, title and interest that Customer or affiliates may have in or to such improvements and modifications.
- Remedies for Breach of Proprietary Content. The parties acknowledge that any breach of Sections 10, 11, 14, 15, 18, and 19 of this Agreement will cause irreparable harm to Red Funnel and Red Funnel will be entitled to specific performance, a judgment for damages, and any other remedies provided by the Uniform Trade Secret Act and all other applicable law. If Red Funnel brings any action to enforce this Agreement, or any appeal therefrom, both parties agree that Red Funnel is entitled to reasonable attorneys’ fees from Customer to be fixed by an arbitrator, trial court, and/or appellate court.
- Third Party Content and Services. All transactions using Red Funnel’s License is between the parties to this Agreement only. The Licensed Application may contain features and functionalities linking Customer or providing Customer with certain functionality and access to third party content and services. Red Funnel may provide some third party content or services to Customer as part of this Agreement. Red Funnel is not an agent of or party to any transaction that occurs between Customer and any third party. Red Funnel is not responsible and has no liability to Customer or any other person for any third party content, services, or data.. Customer irrevocably waives any claim against Red Funnel with respect to such third party content, services, and transactions. Use of the third party services may require Customer or a Registered User to accept additional terms of services. Third party services may display third party information or allow access to Customer data or a third party’s data. To the extent Customer chooses to access third party services, Customer does so at Customer’s own initiative and Customer is solely responsible for compliance with all applicable laws.
- Confidential Information. “Customer Confidential Information” means any and all of Customer, Customer affiliates’, business partners’, and customers’, non-public scientific, technical, financial or business information that Customer or Customer’s Registered Users furnish or make available to Red Funnel during the term of this License in connection with the use of the Services. Red Funnel agrees that it shall: (a) hold all of Customer Confidential Information in confidence and will not, directly or indirectly, publish, disseminate or otherwise disclose, deliver or make it available to any third party, except as expressly permitted in this Agreement; (b) use Customer Confidential Information solely for the purpose of fulfilling Red Funnel’s obligations under this License; (c) treat Customer Confidential Information with the same degree it uses to protect its own confidential information, but in no event with less than a reasonable degree of care; and (d) implement and maintain a security program designed to ensure the security and confidentiality of Customer Confidential Information, protect against anticipated threats to the security or integrity of Customer Confidential Information, and protect against unauthorized access to or use of Customer Confidential Information. Red Funnel will have no obligations of confidentiality and non-use with respect to any information that Red Funnel can establish by competent evidence: (a) is, or later becomes, generally available to the public or trade by use, publication or the like, through no fault or omission of Red Funnel; (b) is obtained from a third party who had the legal right to disclose the same to Red Funnel; (c) is already in Red Funnel’s possession, other than by previous disclosure by Customer; or (d) is independently discovered or developed by Red Funnel without use of Customer Confidential Information.
- Confidentiality Obligations Upon Termination or Expiration. Red Funnel’s obligations of confidentiality and non-use will survive any termination or expiration of this Agreement and continue in full force and effect for ten (10) years following termination or expiration of this Agreement with respect to all of Customer Confidential Information. With respect to all personally identifiable customer information disclosed, Red Funnel’s confidentiality and non-use obligations will survive indefinitely until such information becomes part of the public domain through no fault or omission of Red Funnel. Upon termination or expiration, or at any time upon Customer request in writing, Red Funnel will promptly return to Customer or destroy all of Customer Confidential Information.
- Consent to Use of Data. Customer agrees that Red Funnel may collect and use all technical and usage data and related information that Red Funnel gathers to facilitate the provision of software updates, Licensed Application support, and other services to Customer. Red Funnel may use this information to improve its Licensed Applications or to provide services or technologies to Customer.
- Disclaimer of Warranty. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE LICENSED APPLICATION IS AT CUSTOMER’S SOLE RISK. RED FUNNEL CANNOT AND DOES NOT WARRANT THAT THE LICENSED APPLICATION WILL MEET CUSTOMER REQUIREMENTS, THAT THE OPERATING OF THE LICENSED APPLICATION OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED APPLICATION OR SERVICES WILL BE CORRECTED. THE LICENSED APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY THE LICENSED APPLICATION ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. RED FUNNEL HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY SERVICES, EITHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY RED FUNNEL OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.
- Limitation of Liability. RED FUNNEL SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE TO CUSTOMER, ANY REGISTERED USERS, OR ANY OTHER THIRD PARTIES CAUSED BY THE LICENSED APPLICATION, OR INFORMATION CONTAINED IN THE LICENSED APPLICATION. RED FUNNEL SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTAL DAMAGE FOR ANY CLAIM ARISING OUT ANY USE OF LICENSED APPLICATION OR ANY PERFORMANCE OF THIS AGREEMENT EVEN IF RED FUNNEL HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. THE SOLE REMEDY CUSTOMER HAS IS TO DISCONTINUE THE USE OF THE LICENSED APPLICATION. ALL CUSTOMER DAMAGES ARE LIMITED TO THE AMOUNT ACTUALLY PAID TO RED FUNNEL. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS ITS ESSENTIAL PURPOSE.
- No Rights Granted. This License does not constitute a grant, intention, or commitment to grant any right, title or interest in Licensed Application or Red Funnel’s trade secrets to Customer. Customer shall not represent that the Licensed Application comes from any source other than Red Funnel.
- No Assignment. Except as otherwise provided in this Agreement, Customer shall not assign or otherwise transfer any rights or obligations under this License or Agreement. Customer may designate one or more affiliated entities to participate in this Agreement by providing written notice to Red Funnel during the term of this Agreement.
- Acts of God. Red Funnel is not liable for failure to perform this Agreement’s obligations if such failure is a result of Acts of Gods, including without limitation, any natural disaster; any act of war or related act; any government sanction, blockage, embargo, labor dispute, or related act; or any other act not in Red Funnel’s control. No party is entitled to terminate this Agreement under such circumstances.
- Consent to Communication. Customer agree that Red Funnel may send Customer communications regarding the License and Services, including without limitation, newsletters, notices, and updates.
- General Provisions.
- Nature of Relationship: This Agreement shall not be deemed to create any partnership, joint venture, or employment relationship between the parties.
- Severability: If any court finds any provision of this Agreement invalid or unenforceable, then the remainder of this Agreement remains valid and enforceable.
- Entire Agreement: This Agreement, including the agreements and documents in Section 2 incorporated in this Agreement by reference, expresses the complete understanding of the parties and supersedes all prior proposals, agreements, representations, and understanding. This Agreement may not be amended except in writing signed by both parties.
- Waiver: The failure to exercise any right provided in this Agreement shall not be a waiver of prior or subsequent rights.
- Attorney Fees and Expenses: In a dispute arising out or related to this Agreement, the prevailing party shall have the right to collect from the other party its reasonable attorney fees and costs and necessary expenditures.
- Governing Law: This Agreement is governed in accordance with the laws of the State of Indiana, without regard to conflicts of law.
- Jurisdiction: Any action arising out of or relating to this Agreement shall be brought in Hamilton County, Indiana and both parties consent to personal jurisdiction and venue in Hamilton County, Indiana.
- Suggestions and Feedback: Red Funnel welcomes comments or inquiries about our Licensed Applications. All such comments shall be the sole and exclusive property of Red Funnel and Red Funnel has the right to use such comments, without identifying Customer as the source of such comments, in any manner and for any purpose in Red Funnel’s discretion without remuneration, compensation, or attribution to Customer. Red Funnel is under no obligation to use such comments.
INTELLECTUAL PROPERTY NOTICES:
All content of Red Funnel’s site and services, including without limitation, design, text, software, technical drawings, configurations, graphics, other files, and their selection and arrangement are Copyright © 2014 and/or the proprietary property of Red Funnel’s suppliers, affiliates, licensors. All rights Reserved.
Red Funnel, FatStax, CloudStax, Red Funnel’s logo, FatStax’s logo, and CloudStax’s logo are trademarks, service marks, or registered trademarks of Red Funnel Consulting, LLC, and may not be copied, imitated, or used, in whole or in part, without Red Funnel’s prior written consent.
Red Funnel may have patents, patent applications, trademarks, copyrights, or other intellectual property rights related to this Agreement. Unless Red Funnel has granted to Customer a license to such intellectual property, this Agreement does not give Customer any license to Red Funnel’s intellectual property. Any rights not expressly granted herein are reserved.
Red Funnel Consulting, LLC
101 W 103rd Street
Indianapolis, IN 46290
COPY OF LATEST TERMS AVAILABLE AT
Updated January 2016