The following are the terms and conditions of the License Agreement. "CLIENT" refers to as e-commerce subscriber, and eBanyan, LLC refers to as COMPANY or e-commerce provider
RECITALS
COMPANY offers an ecommerce solution.
CLIENT is an e-commerce subscriber
CLIENT has purchased/ leased COMPANY’s products and services as mentioned in Appendix A subject to following terms and conditions.
1. Non-Exclusivity
The relationship specified in this agreement is nonexclusive between COMPANY and CLIENT. COMPANY shall be entitled to make its suite of products available to other clients.
2 Branding
The Licensed Products and Services shall be marketed and promoted under CLIENT-COMPANY brands in accordance with the terms and conditions of this Agreement.
3. Training
COMPANY shall provide remote or in-person training to two (2) employees of CLIENT, at no extra cost. In case CLIENT needs on-site training, CLIENT shall pay COMPANY all the travel and lodging expenses in advance.
4 Taxes.
All taxes, duties, fees and other governmental charges of any kind (including sales, Products and Services and use taxes, but excluding taxes based on the net income of COMPANY which are imposed by or under the authority of any government or any political subdivision thereof on the fees under this Agreement, shall be borne by CLIENT and shall not be considered a part of, a deduction from or an offset against any fees payable to COMPANY
5. Term
The term of Annual Service Agreement shall commence as of the date set forth above and continue in effect for one (1) year. This Agreement will automatically renew on each year anniversary of this Agreement unless either party gives the other party thirty (30) days written notice. Any amount still owed to COMPANY at the time of termination shall be paid to COMPANY in accordance with the Terms of this Agreement.
6. Confidential information
During the term of this Agreement, CLIENT may have access to information that COMPANY considers to be proprietary or confidential including, but not limited to, products, software, research, inventions and marketing plans (hereinafter referred to as “Confidential Information”).
CLIENT agrees that it shall use such Confidential Information only for the purposes permitted hereunder and shall not otherwise disclose or use such Confidential Information.
Confidential Information does not include information that (1) is or hereafter becomes part of the public domain through no wrongful act, fault or negligence on the part of the CLIENT; (2) is already in the possession of CLIENT; or (3) that CLIENT is required to disclose pursuant to a valid order of a court or other governmental body; provided, however, that the CLIENT shall first have given notice to COMPANY and shall give COMPANY a reasonable opportunity to interpose an objection or obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued.
7. Liability
CLIENT will not use COMPANY products to (i) invade the right of privacy or publicity of any third person, (ii) contain any libelous, obscene, indecent or otherwise unlawful material, or (iii) infringe any patent, copyright or trademark right in any jurisdiction, or (iv) contravene any other rights of any third person.
8. Breach of Representation, Warranty or Covenant
CLIENT shall defend, indemnify and hold harmless COMPANY and each of its officers, directors, employees, agents, and merchants (each, an "Indemnitee") against and in respect of any loss, debt, liability, damage, obligation, claim, demand, judgment or settlement of any nature or kind, known or unknown, liquidated or unliquidated, including without limitation all reasonable costs and expenses incurred (legal, accounting or otherwise) (collectively, "Damages") arising out of, resulting from or based upon any claim, action or proceeding by any third party alleging facts or circumstances constituting a breach of this Agreement and/or a breach of the representations and warranties
9. Risk Allocation
COMPANY SHALL NOT BE LIABLE TO THE CLIENT FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND -- INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF DATA -- ARISING OUT OF THIS AGREEMENT (INCLUDING WITHOUT LIMITATION AS A RESULT OF ANY BREACH OF ANY WARRANTY OR OTHER TERM OF THIS AGREEMENT), REGARDLESS OF WHETHER EITHER PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
10 Acknowledgment of No Warranty
THE COMPANY PRODUCTS ARE SOLD OR LEASED on “AS IS” BASIS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, COMPANY DOES NOT WARRANT THAT THE COMPANY PRODUCTS WILL PERFORM IN THE MANNER EXPECTED OR WITHOUT INTERRUPTION, ERROR OR DEFECT OR THAT ANY REVENUE TO CLIENT WILL RESULT FROM THE ACTIVITIES CONTEMPLATED BY THIS AGREEMENT. EXCEPT AS SET EXPRESSLY FORTH IN THIS AGREEMENT, COMPANY DOES NOT MAKE ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES AGAINST INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS NOT SPECIFICALLY ENUMERATED.
11. Limitation of Liability
COMPANY liability to CLIENT for any and all claims and damages incurred by CLIENT relating to or arising out of the subject matter of this Agreement, whether in contract, tort, implied warranty, strict liability or other form of action, except for (a) real or tangible property damage; (b) claims for violations of a party's intellectual property rights; and (c) any right of indemnity provided herein; shall be limited to the lesser of (d) the amounts paid by COMPANY to CLIENT pursuant to this Agreement for the preceding six months or (e) one thousand dollars.
CLIENT and COMPANY each acknowledge that the provisions of this Agreement were negotiated to reflect an informed, voluntary allocation between them of all risks (both known and] unknown) associated with the transactions associated with this Agreement. The warranty disclaimers and limitations in this Agreement are intended to limit the circumstances of liability.
12. Other Provisions
Governing Law This Agreement (i) shall be governed by and construed in accordance with the local substantive and international laws, without giving effect to its principles of conflicts of law; and (ii) constitute the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties concerning the subject matter hereof.
Waiver No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
Appendix A
1. Ecommerce Solution
- Default landing page
- Mobile-friendly Website
- SEO Ready Custom Pages
- Customer/ Member Login
- Email Alerts
- Affiliate Management
- Shopping Cart with Order Tracking
- Online Invoices
- PayPal Integration
- Online Product Catalog
- Project and Task Manager
- Event Calendar
- HR Management Tools
- Built-in CRM
- Multi-level Security and Backup
2. Fees
Subscription: $50 to $250 per month
SSL security: $70 per year
Customization: $25/ hour
Data entry: $15/ hour
Licence with source codes: $10,000