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You enter and accept the License Services Agreement (this "Agreement") by creating an account on the service or by downloading or installing any component associated with or used by the service, on the "Effective Date", by and between your company or organization ("Partner") and AppMail, LLC, (dba Grouptivity) a California limited liability company having a primary place of business at 66 Bovet Road, Suite #353, San Mateo, California 94402, USA ("Grouptivity").
BACKGROUND
A. Grouptivity has developed and desires to license the use of its group collaboration services as defined below.
B. Partner operates online websites and desires to obtain the right to provide Grouptivity Collaboration Services to its end users with the non-exclusive right to market, promote and offer the Grouptivity Collaboration Services to such end users.
AGREEMENT
NOW, therefore, in exchange for good and valuable
consideration, the adequacy and mutual receipt of which is hereby acknowledged,
Grouptivity and Partner agree to be bound as follows:
1. Services.
1.1 Grouptivity Collaboration Services. Partner may provide its End Users access to Grouptivity Collaboration Services under the terms and conditions of this Agreement.
1.2 Partner Acknowledgment. Partner acknowledges that a prospective End User has to be registered with Grouptivity in order to access the Services. Such registration may be made at the Authorized Websites or Registration Websites. The use of the Services shall be subject to the Terms of Use and the Partner shall ensure that the prospective End User who registers on the Authorized Websites agrees to the Terms of Use upon downloading the Grouptivity Browser Plug In.
2. Licenses.
2.1 Rights Granted to Partner.
(a) Grouptivity grants to Partner a non-exclusive right to provide the Services solely through the Authorized Websites. Partner shall not distribute or provide access to any Service using any method or channel on other than the Authorized Websites.
(b) Grouptivity grants to Partner a non-exclusive royalty free worldwide license under the Grouptivity’s Intellectual Property Rights to reproduce and distribute the Grouptivity Browser Plug In to End Users on the Authorized Websites.
(a) Reverse Engineering. Partner’s use of the Services shall be limited to the purposes specifically set forth in Section 3.1 ("License Grant") herein. Without limiting the generality of the foregoing, Partner receives no rights and agrees not to (and not to allow others to) modify, decompile, disassemble or otherwise reverse engineer the software underlying the Service.
(b) End User. The rights in Section 3.1 ("License Grant") are conditioned on the Partner having the prospective End User registering on the Authorized Websites agreeing to the Terms of Use prior to providing the Services to such prospective End Users.
3. Grouptivity Responsibilities
3.1 Grouptivity End User Support. Grouptivity shall provide , at no charge to Partner, technical support for the Services to Partner during normal business hours, subject to the availability of its personnel.
4. Partner Responsibilities
4.1 Promotion. Partner shall use its best commercial efforts to market and promote the Branded Services (or if Partner does not offer creation of the Branded Services, the Grouptivity Collaboration Services) to users of the Authorized Websites, including by:
5.1 Grouptivity Ownership. Partner acknowledges that Grouptivity is the owner or licensor of the Service and all software used to implement such services and that Partner has no rights or licenses in or to such Services other than the licenses expressly provided herein. All right, title and interest, including all Intellectual Property Rights, in and to the Services as well as the Grouptivity Trademarks shall at all times remain with Grouptivity.
5.2 Ownership of End User Data. Partner acknowledges that (i) Grouptivity shall own any End User Data, and (ii) Grouptivity may share End User Data with its partners or customers in aggregate form subject to compliance with its privacy policy. Grouptivity shall make the End User Data for End Users on the Authorized Website available to Partner on a [monthly] basis for Partner’s internal use and subject to compliance with Grouptivity’s privacy policy.
5.3 Proprietary Rights Notices. Partner agrees that it will not remove, alter or otherwise obscure any proprietary rights notices appearing in the Grouptivity Collaboration Services.
5.4 Partner Representations. Partner shall not make any representations (whether direct or indirect) that it owns any Intellectual Property Rights in the Services or make any warranties or assertions with respect to the Service on behalf of Grouptivity and shall state where appropriate in any communications that it is an "authorized Partner" to provide the Services.
6. Ad placement
6.1 Advertisements. The parties agree that the Services may display advertisements and promotions. These advertisements may be targeted to the content of information stored on the Services, queries made through the Services or other information.
7. Consideration
7.1 Charge to End User. Partner shall not charge End Users for use of the Services.
7.2 Advertising Revenue. The parties will share revenues generated through End User’s use of the Services in 50% for Grouptivity, 50% for the publisher. The publisher will be compensated quarterly assuming they have generated at least $25 of owed compensation.
8. Confidentiality. Each party acknowledges that in the course of the performance of this Agreement, it may obtain the Confidential Information of the other party. The Recipient shall, at all times, both during the term of this Agreement and thereafter in perpetuity keep in confidence and trust all of the Disclosing Party’s Confidential Information received by it.
9. Warranties
9.1 Disclaimer of Warranty. GROUPTIVITY MAKES NO WARRANTIES RELATING TO THE SERVICES, EXPRESS OR IMPLIED. GROUPTIVITY DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO PERSON IS AUTHORIZED TO MAKE ANY OTHER WARRANTY OR REPRESENTATION CONCERNING THE SERVICES. PARTNER WILL MAKE NO WARRANTY, EXPRESS OR IMPLIED, ON BEHALF OF GROUPTIVITY.
10. LIMITATION OF LIABILITY. GROUPTIVITY'S AGGREGATE LIABILITY TO PARTNER UNDER THIS AGREEMENT, WHETHER FOR BREACH OR IN TORT, IS LIMITED TO THE ADVERTISING REVENUE PAID BY GROUPTIVITY TO PARTNER HEREUNDER IN THE TWELVE MONTHS PRIOR TO THE CLAIM.
11. DISCLAIMER OF CONSEQUENTIAL DAMAGES. IN NO EVENT WILL GROUPTIVITY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE), HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF GROUPTIVITY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
12.1 Indemnification by Partner. Partner will indemnify, defend and hold harmless Grouptivity from and against any and all claims, damages and expenses (including reasonable attorney fees and costs of litigation) by any third party resulting from (i) any acts or omissions of Partner relating to its activities in connection with this Agreement, (ii) Partner’s breach of this Agreement, (iii) Grouptivity’s use of the Partner’s Trade Dress or (iv) Partner’s misrepresentations relating to Grouptivity, the Services or this Agreement, regardless of the form of action. Partner will be solely responsible for any claims, warranties or representations made by Partner or Partner’s representatives or agents which differ from the warranties provided by Grouptivity in the Terms of Use.
13. Term and Termination
13.1 Term. This Agreement shall be effective for a term of one (1) year from the Effective Date. It shall be automatically extended for further one-year terms unless either party gives written notice of the party's intent not to renew to the other at least sixty (60) days before the expiration of the initial or any renewal term.
13.2 Termination. Either party may terminate this Agreement at will.
13.3 Effect of Termination. Upon termination of this Agreement, Partner will cease all advertising, marketing and distribution of the Service. Termination of this Agreement will not affect either party's rights or obligations with respect to Grouptivity Collaboration Services distributed by Partner prior to the effective date of the termination.
13.4 No Liability for Termination. Partner acknowledges and agrees that Grouptivity is not responsible for Partner's dependence on revenues hereunder, and Partner agrees to release, hold harmless and indemnify Grouptivity from any and all claims and liabilities relating to Partner's revenues, financial forecasts or economic value that may result from any termination by Grouptivity of this Agreement as permitted hereunder.
13.5 Survival. The following Sections shall survive any expiration or termination of this Agreement: 1 ("Definitions"), 3.3("Restrictions"), 6 ("Ownership"), 9 ("Confidentiality"), 10 ("Warranties"), 11 ("Limitation of Liability"), 12 ("Disclaimer of Consequential Damages"), 13 ("Indemnification"), 14.5 ("Survival") and 16 ("Miscellaneous").
14. Publicity. During the term of this Agreement, Grouptivity may provide to Partner promotional materials with respect to Grouptivity Collaboration Services. Partner may not use the promotional materials for any purpose other than advertising and promoting of the Grouptivity Collaboration Services to end users on the Authorized Websites. Notwithstanding anything to the contrary herein, Partner may not distribute any Partner created promotional materials with respect to Grouptivity or the Grouptivity Collaboration Services without Grouptivity's prior written approval of such materials.
15.1 Governing Law; Attorney Fees. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California. The parties agree that any legal action or proceeding with respect to this Agreement may be initiated only in the federal or state courts located in the State of California. The parties submit to and accept with regard to any such action or proceeding the exclusive jurisdiction of such courts. The application of the UN Convention on the International Sale of Goods is excluded in its entirety from this Agreement. If any legal action or proceeding is initiated, the prevailing party shall be entitled to all attorney fees, court costs, and expenses in addition to any other relief to which such prevailing party may be entitled.
15.2 Entire Agreement; Waiver; Modification. This Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes and terminates all other prior commitments, arrangements or understandings, both oral and written, between the parties with respect thereto. This Agreement may not be modified or amended except by an instrument in writing executed by each of the parties. None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of either party, their agents or employees, but may be waived only by an instrument in writing signed by an officer of the waiving party. No waiver of any provision of this Agreement on one occasion shall constitute a waiver of any other provision or of the same provision on another occasion.