ConnectMe APPLICATION AGREEMENT
This ConnectMe Application Agreement ( "Agreement") is made and entered into as of the Effective Date by and between Gen3Ventures, LLC, an Indiana Limited Liability Company having its principal place of business at 47 S. Pennsylvania St. Suite 700, Indianapolis, IN 46204, with notices to be delivered to Mason Hewitt, Manager and Customer as defined in the Account Sign-up form above. This Agreement is binding and effective ("Effective date") on the date Customer completes the Account Sign-up form.
By checking "I agree to the terms and conditions" below, or physically signing an original copy, Customer indicates its consent to the terms of this Agreement, which shall constitute a binding contract evidenced by an electronic signature and record in commerce pursuant to 15 U.S.C.A. section 7001, as though it had been executed by original hand signature. This Agreement consists of the terms hereof and the terms described in the Account sign up form, which is hereby incorporated herein. Gen3 and Customer are sometimes referred to as "Parties" herein.
1.1. "Application" means the online, internet-based software ConnectMe application to be provided by Gen3 as described in Section 2 and the IO.
1.2 "Party" or "Parties" shall mean Gen3 and the Customer.
2.1 Gen3 Responsibilities. Where Customer purchases the Application pursuant to an IO, Gen3 shall: (a) grant to the Customer a non-exclusive and non-transferable license ("License") to use Application, including any updates thereto; (b) provide the Application in a manner consistent with general and reasonable industry standards; (c) provide support to Customer as provided in the IO; and (d) use commercially reasonable efforts to make the Application available pursuant to the IO.
2.2 Customer Responsibilities. Customer is responsible for Customer's use of the Application. Customer shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (b) prevent unauthorized access to, or use of, the Application, and notify Gen3 promptly of any such unauthorized access or use; and (c) comply with all applicable local, state, federal and foreign laws in using the Application including, but not limited to, the Health Insurance Portability and Accountability Act of 1996 ("HIPPA") and the Telephone Consumer Protection Act.
2.3 Use Guidelines. Customer shall use the Application solely for its internal business purposes as contemplated by this Agreement. Customer shall not transfer or assign the Application without Gen3's written consent. Except as set forth in this Agreement, Customer shall not: (a) license, sublicense sell, resell, rent, lease, transfer, assign, distribute, or otherwise commercially exploit or make the Application available to any third party; (b) transmit or store within the Application infringing, obscene, threatening, defamatory, fraudulent, abusive, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (c) upload to, or store within the Application any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (d) interfere with or disrupt the integrity or performance of the Application or the data contained therein; or (e) attempt to gain unauthorized access to the Application or its related systems or networks.
2.4 Periodic Modification. The Parties recognize that over time, technology and market conditions may affect the service levels that are feasible and that become necessary in order to maintain the Application on a competitive level in the marketplace. As a result, this IO may be amended from time to time by Gen3 to incorporate all improvements included in this IO offered to new customers of Gen3. Such amendments shall be delivered by e-mail to the primary representative of Customer and shall become effective upon receipt by Customer.
2.5 Included Services. Gen3 shall provide Customer with the following:
a. Implementation Assistance. Gen3 will provide Customer with implementation assistance including coding consultation, quality assurance testing and custom graphic design.
b. Training. An online Application training session will be conducted within 15 business days of the execution of this agreement.
c. Troubleshooting. From time to time, Gen3 may provide commercially reasonable troubleshooting support.
Gen3 shall supply qualified personnel necessary to perform this Agreement.
4. FEES & PAYMENT
4.1 Fees. By placing the Application code on Customer's website, Customer agrees to pay Gen3 the fee per "Connection" as described in the account. A Connection is a successful merger of each call between a website visitor and Customer's phone number, lasting five (5) seconds or more, performed by and measured by the Application. Fee per connection will not change unless agreed to in writing by both Parties.
4.2 Payment. All fees shall be prepaid by Customer online with a credit card, which Gen3 is hereby authorized by Customer to charge pursuant to Customer's preferences which must be approved by Gen3.
4.3 Overdue Payments. Customer's failure to pay as set forth herein shall constitute a material breach of this Agreement. If Customer's account is seven (7) days or more overdue (except with respect to charges then under reasonable and good faith dispute), Gen3 may, in addition to any of its other rights or remedies, suspend Customer's access to the Application until such amounts are paid in full. If such failure to pay has not been cured within fifteen (15) days of the due date, then (a) upon written notice, Gen3 may immediately and without liability terminate this Agreement. Any payments received by Gen3 more than thirty (30) days after a due date (except with respect to charges then under reasonable and good faith dispute) may be subject to a service charge on the unpaid amount of one and one-half percent (1.5%) per month, which service charge shall be immediately due and payable. Gen3 shall be entitled to collect from Customer all costs and expenses, including reasonable attorneys' and paraprofessional fees, incurred in connection with the collection of any overdue amounts owed by Customer under this Agreement.
4.4 Taxes. Unless otherwise stated, Gen3's fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding Taxes based on Gen3's net income or property. If Gen3 has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall added to, and paid by Customer, unless Customer provides Gen3 with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. PROPRIETARY RIGHTS
5.1 Reservation of Rights / Improvements. Subject to the limited rights expressly granted hereunder, Gen3 reserves all rights, title and interest in and to the Application, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. Gen3 owns all rights, title and interest, including all intellectual property rights, in and to any improvements to the Application or any new programs, upgrades, modifications or enhancements developed by Gen3 or Customer in connection with rendering the Application to Customer, even when refinements and improvements result from Customer's request. To the extent, if any, that ownership in such refinements and improvements does not automatically vest in Gen3 by virtue of this Agreement or otherwise, Customer hereby transfers and assigns to Gen3 all rights, title, and interest which Customer may have in to such refinements and improvements.
5.2 Restrictions. Customer shall not (a) modify, copy or create derivative works based on the Application; (b) frame or mirror any content forming part of the Application, other than on Customer's own intranets or otherwise for its own internal business purposes; (c) reverse engineer or decompile the Application; or (d) access the Application in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Application. Customer shall use commercially reasonable efforts to insure that it affiliates, agents, employees, successors and assigns comply with this paragraph.
5.3 Customer Data. As between Gen3 and Customer, Customer exclusively owns all rights, title and interest in and to all electronic data or information submitted by Customer utilizing the Application ("Customer Data"). As such, Customer bears all responsibility for protecting such Customer Data and ensuring that it complies with all applicable laws and regulations including, but not limited to HIPPA and Telephone Consumer Protection Act. In partial consideration for the Application provided herein, as well as other good and valuable consideration, Customer grants Gen3 a perpetual, royalty-free, non-revocable, transferable license to the Customer Data for Gen3's internal business purposes only.
5.4 Publicity; Trademarks. Gen3 may issue press releases or other public announcements of any kind relating to this Agreement without Customer's prior written consent. Gen3 may include Customer's name and logo (including on Gen3's website). In addition, Gen3 may use the trademarks and trade names of Customer in connection with its authorized provision of the Application. In addition, Gen 3 may use Customer's data so long as Gen3's use of such data does not identify Customer, or Customer as the source of such data.
6. CONFIDENTIALITY AND SURVIVAL
6.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a Party ("Disclosing Party") disclosed to the other Party ("Receiving Party") that (a) if disclosed orally is designated as confidential at the time of disclosure, (b) if disclosed in writing is marked as "Confidential" and/or "Proprietary", or (c) reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, without limitation, the terms and conditions of this Agreement (including pricing and other terms reflected in all IOs hereunder), the Customer Data, provision of the Services, screen shots of Application, pricing in proposals, business and marketing materials, technology and technical information, product designs, and business processes. Notwithstanding the foregoing, each Party may disclose the existence and terms of this Agreement, in confidence, to a potential purchaser of or successor to any portion of such Party's business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets of any business, division, or group of such Party. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party, which can be demonstrated with clear and convincing evidence; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. Notwithstanding the foregoing, the Receiving Party may disclose such Confidential Information to those of its employees and contractors who need to know such information for purposes of performing the Services and certifies that such employees and contractors have agreed, either as a condition of employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those in this Agreement. The Receiving Party shall use the same degree of care to protect the Confidential Information as it uses to protect its own information of a confidential and proprietary nature, but in no event shall it use less than a reasonable degree of care.
6.3 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
6.4 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
6.5 Survival. Notwithstanding the expiration or termination of this Agreement for any reason, the obligations of Sections 2.3, 5.2, 6, 7, 8 and 9 shall survive the termination of this Agreement.
7. WARRANTIES & DISCLAIMERS
7.1 Mutual Warranties. Each Party represents and warrants that it has the legal power to enter into this Agreement; that the signatory hereto has the authority to bind the applicable organization; and when executed and delivered, this Agreement will constitute the legal, valid, and binding obligation of each Party, enforceable in accordance with its terms.
7.2 Customer Warranties. Customer represents and warrants that: (a) the Customer Data shall not infringe on any copyright, patent (including but not limited to the patent pending filed by Gen3 related to the Application), trade secret or other proprietary, privacy, or other right held by any third party; and (b) Customer shall not use the Application, or allow the Application to be accessed or used, in a manner that violates any international, federal, state, or local law or regulation.
7.3 Gen3 Warranties. Gen3 represents and warrants that: (a) except for temporary interruption in the normal course of business, the functionality of the Application will not be materially decreased during the term of this Agreement; (b) Gen3 shall utilize commercially reasonable software and other security means to prevent the Application from containing or transmitting any of the items set forth in Section 2.3(c); and (c) it owns or otherwise has sufficient rights in the Application to grant to Customer the rights to use the Application.
7.4 Disclaimer. excePT as otherwise specifically provided herein AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, Gen3 EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICES, NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY Gen3. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE FACE HEREOF.
7.5 Changes to Customer Website. From time to time Customer may request that Gen3 assist Customer with changes to Customer’s website. If such services are not included as part of this Agreement, Gen3 can assist Customer with such changes, in Gen3’s absolute discretion. If Gen3 provides any such assistance, Customer shall be solely responsible for the content of such changes and hereby releases Gen3 from any and all claims, liabilities, suits or demands of every nature, arising out of or related to such changes. Further, if Gen3 assists with any such changes, Customer is responsible for changing access passwords after code is complete.
8.2 Procedure. As an express condition to the indemnifying Party's obligation under this Section 8, the Party seeking indemnification must: (a) promptly notify the indemnifying Party in writing of the applicable Claim for which indemnification is sought; and (b) provide the indemnifying Party with all non-monetary assistance, information and authority reasonably required for the defense and settlement of such Claim. The indemnifying Party may select counsel for defense of the Claim and direct the course of any litigation or other disputed proceedings concerning the Claim. The indemnified Party may select its own counsel and direct its own defense of a Claim if it chooses to do so, but it must bear the costs of its own counsel and any activities in any disputed proceeding conducted by counsel of its choosing. The indemnifying Party may settle any Claim, to the extent it seeks a money payment, with or without the consent of the indemnified Party. The indemnifying Party must obtain the indemnified Party's consent to any settlement to the extent it consents to injunctive relief or contains contract terms governing future activities that would materially affect the indemnified Party's business or interests, said consent not to be unreasonably withheld, conditioned or delayed.
9.1 Limitation of Liability. IN NO EVENT SHALL Gen3's AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED AMOUNTS ACTUALLY PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
9.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL Gen3 HAVE ANY LIABILITY TO CUSTOMER FOR ANY LOST PROFITS OR FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND OR NATURE HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 Limitation on Data Supplier Claims. Gen3 shall not be liable for any claims, causes of action, costs, expenses, damages or other liabilities of any nature which may arise from or be asserted against Gen3 as a result of any dispute between a DATA SUPPLIER and Customer arising from any dealings between a DATA SUPPLIER and Customer.
9.4 Time to File Claim. NO CLAIM MAY BE BROUGHT BY CUSTOMER UNDER THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF THE CLAIM.
10. TERM & TERMINATION
10.1 Term of Agreement. This Agreement commences on the Effective Date and continues until terminated by either party in writing upon 30 days' written notice.
10.2 Termination for Cause. A Party may terminate this Agreement and/or any IO for cause: (a) as set forth in Section 4.3 above; (b) upon twenty (20) days' written notice of a material breach to the other Party, provided that the breaching Party fails to cure such breach by the expiration of such period; or (c) at the written option of a Party if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors and is not dismissed within sixty (60) days. Upon any termination for cause by Customer, Gen3 shall refund Customer any prepaid fees covering the remainder of the IO Term after the date of termination. Termination for cause by Customer shall not relieve Customer of the obligation to pay any sums accrued or payable to Gen3 prior to the effective date of termination.
10.3 Customer Data. Following the expiration or termination of this Agreement, Gen3 shall (a) convert Customer's account to an inactive status, and (b) have no obligation to save Customer Data unless otherwise expressly set forth in a IO and at Customer's expense.
11. GENERAL PROVISIONS
11.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
11.2 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (a) personal delivery; (b) the second (2nd) business day after mailing; (c) the second (2nd) business day after sending by confirmed facsimile; or (d) the second (2nd) business day after sending by email. Notices to Gen3 shall be addressed to the attention of Mason C. Hewitt, manager. Notices to Customer shall be addressed to Customer's signatory of this Agreement unless otherwise designated below.
11.3 Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
11.4 Severability. Any provision of this Agreement which is prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction.
11.5 Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld, conditioned or delayed). Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.6 Force Majeure. If either Party is rendered unable, wholly or in part, by force majeure to carry out its obligations under this Agreement, that Party shall give to the other Party prompt notice of the force majeure with reasonably full particulars concerning it. Thereupon the obligations of the Party giving notice, so far as they are affected by the force majeure, shall be suspended during, but no longer than, the continuance of the force majeure. The affected Party shall use all reasonable diligence to remove the force majeure as quickly as possible. The term "force majeure" shall without limitation mean an act of God, strike, industrial disturbance, act of the public enemy, war, blockage, public riot, lightning, fire, storm, flood, failure of utilities, failure of internet or hosting facilities, any unauthorized server or computer violation or other security violation, explosion, governmental restraint, or any other cause, whether of the kind specifically enumerated above or otherwise, which is not reasonably within the control of the Party claiming suspension.
11.7 Governing Law. This Agreement shall be governed exclusively by the internal laws of the State of Indiana, without regard to any conflicts of laws rules including its own. The state and federal courts located in Marion County (Indianapolis), Indiana shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each Party consents to the exclusive jurisdiction of such courts. Each Party also waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
11.8 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter herein, supersedes all prior agreements and customer purchase order terms, whether written or oral, and supersedes and merges all prior discussions between the parties. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom the modification, amendment or waiver is to be asserted. The language used in this Agreement shall be deemed to be language chosen by both parties hereto to express their mutual intent, and no rule of strict construction against either Party shall apply to rights granted herein or to any term of condition of this Agreement.
11.9 Authority and Counterparts. The representative signing this Agreement and completing the Account sign up form on behalf of Customer, in writing or by electronic means, represents and warrants that he or she has authority to bind Customer. This Agreement may be executed in counterparts, which taken together shall form one legal instrument. Delivery of an executed counterpart signature page of this Agreement by facsimile, email, or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement.
12. AVAILABILITY AND MAINTENANCE
12.1 Exceptions to Availability. The Application may not be available for use under the following circumstances: (i) Normal Maintenance and Urgent Maintenance as described in Sections 1(b) and 1(c); (ii) the negligent or willful acts or omissions of third parties, Customer, its employees, contractors or agents, or its end users, including, but not limited to Data Suppliers and customers; (iii) the failure or malfunction of equipment, applications or systems not controlled by Gen3; (iv) any third party or public network or systems unavailability; (v) circumstances or causes beyond the control of Gen3, including instances of force majeure; or (vi) breach of the Agreement by Customer.
12.2 Normal Maintenance. Normal Maintenance means performing preventive maintenance or hardware and software upgrades to the components of the Application to add features or repair errors that are not immediately affecting Customer's use of the Application. Gen3 shall make commercially reasonable efforts to conduct Normal Maintenance outside of the hours of 8AM through 5PM, Monday through Friday, EST (Eastern Standard Time).
12.3 Urgent Maintenance. Urgent Maintenance means performing maintenance on the software or hardware components of the Application to repair errors that are immediately affecting Customers' use of the Application. During Urgent Maintenance the Application' interface may be unavailable. Gen3 may undertake Urgent Maintenance at any time deemed necessary. Application may be down for Urgent Maintenance a total of four (4) hours per month.