eXtendTech Software License Agreement

These Terms and Conditions (the “Terms”) are effective upon execution of an Estimate referencing these Terms (each, a “Estimate” and together with these Terms, the “Agreement”), by and between Suitextend, Inc dba eXtendTech (“eXtendTech”) and the party named as Customer in the Estimate. The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior communications and agreements.

1. GRANT OF LICENSE

Subject to the terms and conditions of the Agreement, eXtendTech grants to Customer a non-exclusive, non-transferable license to use the software identified in the Estimate for its own internal business operations. Customer may not, however, transfer or sublicense the Licensed Programs to any third party, in whole or in part, in any form, whether modified or unmodified.

2. BILLING AND PAYMENTS

Pricing Structure. The pricing model for the Licensed Programs has the following components: (i) One-Time installation and License Fee (the “License Fee”) fee; (ii) Professional Service Fees (“Professional Service Fees”); and (iii) Monthly Subscription Service Fees (“Monthly Subscription Service Fees”). Customer shall pay, upon delivery of the Licensed Programs, the License Fee set forth on the Estimate.
Taxes. License fees do not include any shipping, duties, bank fees, sales, use, excise or similar taxes due. If eXtendTech is required to pay any such amounts, Customer shall reimburse eXtendTech in full.
Late Charges. Late payments are subject to interest charges of 1% per month, or if lower, the maximum amount allowed by law.
Billing Disputes. Customer agrees that it shall notify eXtendTech within 60 days of receipt of an invoice from eXtendTech if it intends to dispute the amounts owed under such invoice, and that after 60 days all undisputed invoices will be deemed to have been accepted.

3. RIGHTS, RESPONSIBILITIES & RESTRICTIONS

Intellectual Property Rights. eXtendTech shall retain all intellectual property rights in the Licensed Programs, including any and all derivatives, changes and improvements thereof, and Customer agrees that it obtains no intellectual property rights or licenses by this Agreement except those expressly granted herein. Customer hereby grants eXtendTech a non-exclusive, perpetual, irrevocable, royalty-free license to any ideas, suggestions, feedback, gift ideas or categories, or service improvements given by Customer pertaining to the Licensed Programs.
Sandbox. Customer may make use of one (1) copy of the Licensed Program within the Customer’s Sandbox environment. Customer agrees to maintain records of the location and use of each copy, in whole or in part, of the Licensed Programs. Each Licensed Program is copyrighted but unpublished by eXtendTech. Customer agrees to reproduce and apply the copyright notice and proprietary notice of eXtendTech to all copies made hereunder, in whole or in part and in any form, of Licensed Programs.
Responsibilities. eXtendTech will provide to Customer the following support with respect to the Licensed Software:
1. If during the 1st year of this Agreement, Customer notifies eXtendTech of a substantial program error respecting the Licensed Software, or eXtendTech has reason to believe that error exists in the Licensed Programs and so notifies Customer, eXtendTech shall at its expense verify and attempt to correct such error within thirty (30) working days after the date of notification. If Customer is not satisfied with the correction, then Customer may terminate this Agreement, but without refund of any amount paid to eXtendTech or release of any amounts due eXtendTech at the time of termination.
2. In the case that Customer has technical questions in the use of the Licensed Programs during the 1st year of this Agreement, Customer may submit those questions to eXtendTech. eXtendTech shall provide consulting to answer such questions without charge to Customer up to a maximum of sixteen (16) hours for each Licensed Program (“Customer Onboarding Allowance”).
3. If Customer requires consulting, integration, education, training or other services that are in excess of the Customer Onboarding Allowance, Customer shall pay for such additional services at eXtendTech’s then current time and materials rate.
Restrictions. Customer shall (i) not attempt to infiltrate, hack, reverse engineer, decompile, or disassemble the Licensed Programs; (ii) not represent that it possess any proprietary interest in the Licensed Programs; (iii) not directly or indirectly, take any action to contest eXtendTech’s intellectual property rights or infringe them in any way; and (iv) except as specifically permitted hereunder, not use the name, trademarks, trade-names, and logos of eXtendTech.

4. TERM AND TERMINATION

Term. The Monthly Subscription Service will continue for the term as specified in the Estimate. The Subscription Term shall renew for successive 12-month periods unless either party delivers written notice of non-renewal to the other party at least 30 days prior to the expiration of the then-current Subscription Term.
Termination for Cause. Either party may terminate this Agreement immediately upon a material breach by the other party that has not been cured within thirty (30) days after receipt of notice of such breach.
Suspension for Non Payment. eXtendTech reserves the right to suspend delivery of the Monthly Subscription Service if Customer fails to timely pay any undisputed amounts due to eXtendTech under this Agreement, but only after eXtendTech notifies Customer of such failure and such failure continues for fifteen (15) days.
Effects of Termination. In the event of termination, Customer will immediately discontinue use of the Licensed Programs. Within thirty (30) days after termination of this Agreement, Customer will furnish to eXtendTech a certificate which certifies with respect to each of the Licensed Programs that, through its best effort and to the best of its knowledge, the original and all copies, in whole or in part and in any form, of each of the Licensed Programs have been destroyed.

5. CONFIDENTIALITY

By virtue of this agreement, each party agrees not to disclose the terms of this Agreement, except when legally mandated or in the course of commercial due diligence proceedings provided that any third party recipient shall be bound by non-use and non-disclosure obligations no less restrictive than those set out herein. Each party acknowledges that in the course of performing its duties under this Agreement it may be furnished with, receive, or otherwise have access to information of or concerning the other party, which the other party considers to be confidential, proprietary, a trade secret or otherwise restricted. All confidential information furnished by a party to the other shall remain the property of and be deemed proprietary to the disclosing party. Each party agrees: (i) to receive such confidential information in strict confidence and not disclose it to any third party without the prior written consent of the disclosing party; (ii) to accord such confidential information at least the same level of protection against unauthorized use or disclosure that the receiving party customarily accords to its own confidential, proprietary or trade secret information of a like nature, but in no event less than reasonable care; and (iii) to use such confidential information solely and exclusively for the purposes of and in accordance with the terms of this Agreement. Information shall not be considered confidential information to the extent that such information is or becomes known publicly through no fault of the parties, is already known to either party before receipt of such information from the disclosing party or is required to be disclosed by law so long as the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure. The confidentiality obligations outlined herein shall extend from the Effective Date until such information is no longer confidential in nature.

6. WARRANTIES

Each party represents and warrants that (a) this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with the terms of this Agreement, and (b) its execution and delivery of this Agreement and its performance hereunder will not violate any applicable law, rule or regulation.
Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED HEREIN, EXTENDTECH PROVIDES THE USAGE OF THE LICENSED PROGRAMS TO CUSTOMER ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, AND FITNESS FOR PARTICULAR PURPOSE WHETHER ALLEGED TO ARISE BY LAW, BY USAGE IN THE TRADE, BY COURSE OF DEALING OR COURSE OF PERFORMANCE. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, EXTENDTECH DOES NOT WARRANT THAT (I) THE LICSENSED PROGRAMS OR ANY SERVICES RELATED THERETO WILL BE DELIVERED OR PERFORMED WITHOUT MISTAKE OR INTERRUPTION OR (II) THAT CUSTOMER WILL ACHIEVE ANY PARTICULAR BUSINESS RESULTS BY USE OF THE LICENSED PROGRAMS.

7. INDEMNIFICATION

Customer agrees to indemnify and hold harmless eXtendTech (and its officers, directors, shareholders, employees and agents) from and against, any and all claims, suits, damages, losses, costs or expenses, including reasonable attorneys’ fees and any amounts paid in settlement, suffered by eXtendTech and arising out of or incurred in connection with any claim, action, suit or proceeding brought against eXtendTech for infringement of any trademark, trade name or other proprietary right of a third party in connection with the performance by eXtendTech of its obligations hereunder provided that such performance was done not in violation of terms of this Agreement .
eXtendTech agrees to indemnify and hold harmless Customer, its officers, directors, shareholders, employees and agents against any cause of action, loss, liability, damage, cost or expense of any nature whatsoever, whether accrued, absolute, contingent or otherwise, including, without limitation, attorney’s fees and costs (whether or not suit is brought), arising out of or relating to any claim alleging that the Licensed Programs is in violation of a third party’s intellectual property rights.
eXtendTech will defend at its own expense any action brought against Customer to the extent it is based on a claim that the Licensed Programs used within the scope of the license granted hereunder infringe a United States patent, copyright or other proprietary right of a third party. eXtendTech will pay any costs, damages or attorney fees finally awarded against Customer in such action which are attributable to such claim, provided eXtendTech is promptly notified in writing of such claim, may control the defense and/or settlement of such claim, and is provided with all requested assistance, information and authority. In the event that a Licensed Program becomes, or in eXtendTech’s opinion is likely to become, the subject of a claim of infringement of a United States patent, copyright or trade secret, eXtendTech may at its option either secure Customer’s right to continue using the Licensed Programs, replace or modify the Licensed Programs to make them not infringing, or provide Customer with a refund of the license fee less depreciation on a 5 (five) year, straight-line basis. eXtendTech shall have no liability for any claim of patent, copyright or trade secret infringement based on the use of a Licensed Program in any form other than the original, unmodified form provided to Customer or the use of a combination of the Licensed Programs with hardware, software or data not supplied by eXtendTech where the used Licensed Programs alone in their original, unmodified form would not constitute an infringement. The foregoing states Customer’s entire liability for infringement or claims of infringement of patents, copyrights or other intellectual property right.

8. LIMITATION OF LIABILITY

EXCLUSION OF DAMAGES. IN NO EVENT WILL EXTENDTECH BE LIABLE FOR (A) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT EXTENDTECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (B) ANY CLAIMS OR DAMAGES RESULTING FROM THE BREACH OF THIS AGREEMENT BY THE CUSTOMER AND ANY USERS OR THIRD PARTIES ON ITS BEHALF, (C) THE MODIFICATION OF THE LICENSED PROGRAMS/OR THE COMBINATION THEREOF WITH THIRD PARTY PRODUCTS AND SERVICES NOT PROVIDED BY EXTENDTECH, SOLELY TO THE EXTENT THAT A CLAIM COULD NOT HAVE BEEN BROUGHT EXCEPT BY REASON OF SUCH COMBINATION.
MAXIMUM AGGREGATE LIABILITY. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EXTENDTECH AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID FOR THE LICENSED PROGRAMS GIVING RISE TO THE LIABILITY.

9. GENERAL PROVISIONS

Notices. All notices in connection with this Agreement shall be in writing and may be given by certified, registered, or first class mail or personally delivered at the address set forth on the front page. For purposes of this Agreement, a notice shall be deemed effective upon personal delivery to the party or if by mail five days after proper deposit in a mail box.
Successors. This Agreement will be binding upon and will inure to the benefit of the parties hereto and their respective representatives, successors and assigns except as otherwise provided herein.
Severability. In the event any provision of this Agreement is determined to be invalid or unenforceable, the remainder of this Agreement shall remain in force as if such provision were not a part.
Governing Law. This Agreement shall be governed and interpreted by the laws of the State of Florida, Palm Beach County as Florida shall be the appropriate venue and jurisdiction for the resolution of any disputes hereunder. Both parties hereby consent to such personal and exclusive jurisdiction.
Non-Assignment. This Agreement and the licenses granted by it may not be assigned, sublicensed, or otherwise transferred by Customer without the prior written consent of eXtendTech.
Export Regulations. Customer understands that eXtendTech is subject to regulation by agencies of the U.S. Government, including the U.S. Departments of Commerce and State, which prohibit export or diversion of certain technical products to certain countries. Customer warrants that it will comply in all respect with the export and re-export restrictions set forth in the export license for the Licensed Programs and all other applicable export regulations. Customer agrees to indemnify and hold eXtendTech harmless from any loss, damages, liability or expenses incurred by eXtendTech as a result of Customer’s failure to comply with any export regulations or restrictions.
Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures.
Publicity. eXtendTech shall have the right to include a reference to the Customer, its official name and logo on its website, marketing literature, labeling and in its promotional materials.