Date of Last Revision: September 15, 2017
A. In consideration of the Company’s provision of Gusher to Member, and the Company’s grant to Member of a non-exclusive, non-transferable right to utilize Gusher, Member expressly agrees that Gusher (including any products or information provided by Company as ancillary to Gusher) is and shall remain the sole property of the Company.
B. Member agrees that it will not develop or cause to be developed a service that competes with Gusher, and Member represents that it is not currently involved in the development or marketing of any such service.
Title and full ownership rights to Gusher, and any and all modifications, revisions and derivative works associated therein, furnished by the Company under this Agreement shall remain at all times with the Company. Member’s rights may not be assigned, licensed, sublicensed, pledged or otherwise transferred voluntarily, by operation of law, or otherwise, without the Company’s prior written consent, and any such prohibited assignment shall be null and void.
Member acknowledges that Gusher is the copyrighted property of the Company and that Gusher contains proprietary and trade secret information belonging to the Company which is protected by US copyright laws as well as other intellectual property laws. Member shall not sublicense, distribute, transmit, reverse engineer, decompile, disassemble or otherwise divulge, directly or indirectly, by any means or in any form, Company’s proprietary and trade secret information. Member shall take all reasonable steps necessary to ensure that Company’s proprietary and trade secret information is not made available or disclosed by Member to any other person, firm, corporation or third party. The non-disclosure restrictions contained herein shall apply during the term hereof and for a period of five (5) years thereafter; provided that the restrictions contained herein shall continue to apply thereafter with respect to any trade secret information, for so long as such information retains its trade secret status. Member agrees that if there is a breach or anticipated breach of the provisions of this Section, the Company will have no adequate remedy at law. In such event, the Company shall be entitled to seek a temporary restraining order, injunction or other equitable relief against the continuance of such breach, in addition to all other remedies, without the requirement of posting a bond or undertaking or proving injury as a condition for relief.
The term of this Agreement shall commence from the Effective Date and continue so long as Member remains a registered user of Gusher. This Agreement may be terminated by the Company at any time. Upon termination of this Agreement, for any reason, Member shall make no further use of Gusher. Notwithstanding any expiration or termination of this Agreement, the terms of Articles II, III, VII, and VIII shall survive.
NO WARRANTY, CONDITION, UNDERTAKING OR TERM EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE, AS TO THE CONDITION, QUALITY, DURABILITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF GUSHER IS GIVEN, AND ALL SUCH WARRANTIES, CONDITIONS, UNDERTAKINGS AND TERMS ARE HEREBY EXCLUDED. THE COMPANY DOES NOT WARRANT THAT GUSHER WILL MEET ANY GENERAL OR SPECIFIC NEED OF MEMBER.
IN NO EVENT SHALL THE COMPANY BE LIABLE TO MEMBER, ANY AFFILIATE OR ANY THIRD PARTY UNDER, IN CONNECTION WITH, OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUE OR BUSINESS OPPORTUNITY, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
A. No action arising out of any claimed breach of this Agreement by the Company or otherwise relating to this Agreement may be brought by Member more than six (6) months after the cause of action has accrued.
B. Member and its affiliates shall indemnify and hold harmless the Company, together with its shareholders, officers, directors, employees, and agents, from and against any and all losses attributable to: (i) Gusher; and/or (ii) claims of third parties that may arise from Member’s use of Gusher, even if the Company has been advised of the possibility of such losses.
A. This Agreement shall be binding upon Member’s successors or assigns.
B. All notices which either party hereto is required or may desire to give the other party hereto shall be given by addressing the communication to the address set forth on page one (1) of this Agreement, and may be given by certified or registered mail. Such notices shall be deemed given on the date of receipt (or refusal) of delivery.
C. In the event of litigation, the prevailing party shall be entitled to recover reasonable attorney’s fees and legal costs.
D. Modifications to Gusher shall in no way diminish the Company’s rights under this Agreement.
E. If any provision of Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
F. This document embodies the whole agreement of the parties with respect to the Company’s provision of Gusher to Member. There are no promises, terms, conditions, or obligations other than those contained herein; and this contract shall supersede all previous communications, representations, or agreements, either written or oral, between the parties. Furthermore, the parties acknowledge that this Agreement is the product of negotiation by both parties and shall not be deemed to have been drafted by one party or the other.
G. All sections, paragraph headings, titles or captions contained in this Agreement are for convenience or reference only and shall not be used in the interpretation or construction of this Agreement.
H. Failure by either party to exercise any right or remedy available to it under this Agreement shall not preclude the further exercise of the same right or remedy by either party.
I. Member shall comply with and conform to all local, municipal, state and federal laws relating to the licensing and operation of any purchased hardware or software as may be provided in connection with Gusher.
J. Member may not assign this Agreement nor any of its rights, duties or obligations hereunder, without the prior written consent of the Company All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective heirs, executors, administrators, legal representatives, successors and permitted assigns of the parties.
K. Member and Company shall not be considered partners, co-venturers, agents, employees or representatives of each other by reason of this Agreement.
L. This Agreement shall be interpreted and enforced pursuant to the laws of the State of Delaware without regard to Delaware law relating to choice of law. Any and all lawsuits or other proceedings related to this Agreement or the transaction described herein shall be commenced and held in New Castle County, Delaware.
M. The waiver by either party of a breach or violation of any provision of this Agreement shall not operate as or be construed to be a waiver of any subsequent breach.
N. Neither party shall assign this Agreement without first obtaining the written consent of the other party. Such consent will not be unreasonably withheld. Notwithstanding the foregoing, Company may assign all or part of this Agreement to any of its affiliates.
O. No remedy herein conferred upon any party is intended to be exclusive of any other remedy, and each and every such remedy given hereunder or now hereafter existing at law or in equity or by statute or otherwise. No single or partial exercise by any party of any right, power or remedy hereunder or now or hereafter existing at law or in equity shall preclude any other or further exercise thereof.