This Master Software License & Services Agreement, is made as of the date of the last signature set forth on the signature page below (the “Effective Date”) together with the Exhibits attached hereto and incorporated herein, (collectively, the "Agreement") by and between customer ("Customer") and Instant, Inc., doing business as Instant Software ("Instant").
A. Instant has certain software that it wishes to license to Customer, and Customer has a need and desire to license said software from Instant.
B. Instant has expertise in and wishes to provide to Customer, and Customer wishes to obtain from Instant, certain services, as more fully described hereinafter.
C. In consideration of the mutual covenants and promises hereinafter set forth, the parties agree as follows:
Section 1. Purchase Orders & Services
A. Instant shall (i) perform for Customer the consulting, information technology, development, data processing, webhosting, maintenance, and support services ("Services") and (ii) license to Customer certain proprietary software of Instant and/or its third party licensors ("Software"), each as described in written purchase orders(s) or other ancillary agreements, together with any exhibits thereto, issued by Instant and accepted by Customer (with each such document referred to herein as a "PO").
B. Instant shall not commence the provision of, and Customer shall not be required to pay for, any Software and Services unless and until a PO has been completed and signed by the parties' authorized representatives. During the term of the applicable PO, the parties may agree to changes or modifications to the Software and/or Services thereunder by an amendment executed by the parties’ authorized representatives. Additional POs may be entered into at any time during the term of this Agreement.
Section 2. Licenses & Ownership Rights
A. With respect to any Software provided by Instant to Customer under any PO, Instant shall deliver the Software and associated documentation at the time and place set forth in the applicable PO. The applicable PO shall specify any installation, training or other support or services regarding the use and operation of the Software.
B. Unless otherwise provided in the applicable PO, Instant hereby grants to Customer a nonexclusive, nonrefundable, non-transferable license to use and/or access the Software (including any and all updates and modifications thereto) at the locations, and on the designated computers, and in accordance with the other terms, set forth in the applicable PO and for the purpose(s) set forth in the applicable PO in connection with Customer’s property rental business. Customer shall only have the rights with respect to the Software that are expressly granted herein or in the applicable PO.
C. Instant shall retain any and all ownership right, title, and interest in and to the Software. Customer shall not (and shall cause its Affiliates (as defined below) and any subcontractors to refrain from), nor assist others to, (a) disassemble, decompile, reverse engineer, or otherwise attempt to recreate the Software, (b) modify, enhance, or create derivative works based on the Software without the prior written consent of Instant, (c) rent, lease, grant a security interest in, or otherwise transfer rights to the Software unless otherwise provided in this Agreement and/or the PO(s) issued hereunder, (d) remove any proprietary notice or label from the Software (e) or use the Software in any commercial or other way not expressly contemplated by this Agreement, the PO or the documentation provided by Instant to Customer.
D. Instant (or its third party licensors or subcontractors) shall retain sole and exclusive ownership rights in and to any and all (i) Confidential Information or Software of Instant and/or proprietary materials, items, or elements of Instant or its third party licensors or subcontractors, (ii) reports, computer programs, documentation, specifications, deliverables, products, work product, software, source code, algorithms, routines, graphics, files, software patches, enhancements, modifications, blueprints, diagrams, charts, functional descriptions, photographs, surveys, or other materials, writings, or works of authorship (and any drafts of the foregoing) created, developed, or prepared by Consultant, its employees, agents, or subcontractors, whether before or during the course of performing the Services under this Agreement, and/or (ii) tools, equipment or scripting applications developed or created by Instant or its subcontractors, whether before or during the performance of Services hereunder.
E. Notwithstanding the foregoing, nothing in this Agreement shall preclude Instant from using any general information, ideas, concepts, know-how, techniques, programming routines and subroutines, methodologies, processes, skills, or expertise (collectively, "Residual Information") which Instant's employees or subcontractors retain in their memory and derive from the performance of Services hereunder, and which are no more than skillful variations of general processes known to the computer data processing and/or information technology industries (and, as such, are neither proprietary, confidential, nor trade secret information of Instant or its subcontractors).
F. For the purposes of this Agreement, the term "Affiliate" shall also include any and all subsidiaries, affiliates, corporations, limited liability companies, partnerships, firms, associations, businesses, organizations, and/or other entities that directly or indirectly (either presently or in the future and/or through one or more intermediaries) control, are controlled by, or are under common control with such party (collectively, "Affiliates").
Section 3. Content Submitted By Customer; Usage Restrictions.
A. Customer agrees that it has provided true, accurate, current and complete information to Instant in connection with this Agreement and any PO and agrees to update Instant promptly in the event any of such information changes. If Customer provides any information that is untrue, inaccurate, not current or incomplete, or Instant has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Instant reserves the right to suspend or terminate your licenses to Software or the provision of Services (or any portion thereof).
B. All information, data, text, software, photographs, messages or other materials (“Customer Content”) provided to Instant, whether to a customer service or other employee or through a website operated by Instant, or provided in connection with the use of the Software or Services is the sole responsibility of Customer. Customer represents and warrants that it has all rights necessary to submit its Customer Content. Customer grants Instant a non-exclusive right to use, copy, store, transmit and display Customer Content in connection with Instant’s performance of its obligations hereunder and any PO.
C. Customer agrees to use the Software and Services only for their intended purpose and agrees not to engage in any illegal or harmful activities in connection with such usage. Customer further consents to and agrees to abide by the terms and conditions and privacy policy posted on www.instantsoftware.com. Such terms and conditions and privacy policy may change from time to time without prior notice and will not require Customer’s approval or consent.
Section 4. Fees & Invoicing
A. Customer shall pay to Instant the fees set forth in the applicable PO(s), plus any reasonable and necessary travel and other related and pre approved out of-pocket expenses incurred by Instant's employees and subcontractors in connection with the performance of the Services hereunder. Unless otherwise specified in the applicable PO(s), the Services shall be performed by Instant on a time-and-material basis at the rate specified in the applicable PO(s).
B. Unless otherwise specified in the applicable PO, Customer shall pay all invoices within 30 days after Customer's receipt thereof. Instant reserves the right to suspend or terminate any licenses to Software, Services, any PO and/or this Agreement in the event invoices are not paid by Customer in a timely manner.
C. Should Customer question or dispute any invoice, Customer must contact Instant within 30 days of such invoice in writing and must identify the amount in question or dispute and the reason therefore. Beyond 30 days, all invoices are assumed correct and Customer waives its right to dispute any aspect of the invoice.
Section 5. Term & Termination; Changes
A. This Agreement shall be effective as of the date first set forth above, and shall continue until the last PO issued hereunder has terminated or unless otherwise earlier terminated as set forth herein. The applicable POs shall commence as of the effective dates set forth therein, and shall continue until the expiration of the applicable Software license term(s) and the completion of any and all Services, as applicable, unless otherwise earlier terminated or extended as set forth in this Agreement.
B. Unless any PO provides otherwise, Instant may terminate, at any time and without cause, this Agreement, any PO hereunder, or one or more sections thereof, by providing at least 90 days' prior written notice thereof to Customer. In the event that either party terminates a PO hereunder, or any section thereof, without cause pursuant to this Section, Customer shall pay Instant for any and all Software and Services completed and delivered by Instant prior to the termination effective date.
C. Either party may terminate this Agreement or a PO hereunder if the other party materially breaches any of the terms, conditions, or obligations set forth in this Agreement or the applicable PO and fails to correct such breach within 30 days, or in the case of delinquent payment to Instant, 15 days (or such other period of time as mutually agreed upon in writing between the parties) following the breaching party's receipt of written notice of such breach.
D. In the event that either party terminates a PO hereunder, or any section thereof, without cause pursuant to this Section, the parties shall have no further obligation or liability whatsoever to each other with respect to such section or the entire PO, as applicable, except (i) with respect to the obligations of the parties under Sections 4 and 7-13, which shall survive termination and (ii) Customer shall pay Instant for any and all Software and Services completed and delivered by Instant prior to the termination effective date.
E. Upon the termination or expiration of this Agreement or any PO hereunder, each party shall (a) promptly (at the other party's sole option and request) return to the requesting party or destroy (and certify in writing to such destruction) any and all Confidential Information of the requesting party, whether in written or electronic form, and neither party, nor any of its or their subcontractors or agents (nor any of their respective employees) shall retain any copies, extracts, derivatives, or other reproductions of the requesting party's Confidential Information and (b) take reasonable steps to assure that any and all documents, memoranda, notes, and other writings or electronic records prepared or created by the requesting party are destroyed.
F. Instant reserves the right to modify or change any Software or Services at any time. If such modifications or changes are material, in the reasonable discretion of Instant, or if Instant will cease providing any Software or Services (or any material portion thereof), then Instant shall provide at least 90 days prior notice thereof and such changes, modification or termination shall become effective on the 90th day following such notice.
Section 6. Representations & Warranties
A. Instant hereby represents and warrants to Customer that: (i) Instant possesses the requisite expertise, knowledge, and skills necessary to perform the Services in accordance with the terms and conditions of this Agreement and the applicable POs; and (ii) Instant has all rights, approvals, and/or licenses necessary to provide the Software and Services;
B. The parties represent and warrant to each other: (i) each party is duly authorized to execute this Agreement and POs hereunder and carry out its duties hereunder and thereunder; (ii) the parties shall at all times comply with the applicable policies, procedures, and guidelines of the other party, provided they are reasonable and given to the other party in writing; and (iii) Instant's performance hereunder, as well as any and all Software and Services and Customer’s use thereof, shall at all times be in compliance in all material respects with applicable laws, regulations and statutes.
Section 7. Disclaimers
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT AND/OR IN ANY SCHEDULE ISSUED HEREUNDER, NO EXPRESS OR IMPLIED WARRANTY IS MADE WITH RESPECT TO THE SOFTWARE, SERVICES, DELIVERABLES, OR WORK PRODUCT TO BE PROVIDED BY CONSULTANT HEREUNDER, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. INSTANT MAKES NO REPRESENTATION OR WARRANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SOFTWARE, SERVICES OR THE CONTENT THEREOF.
INSTANT DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR FREE OR THAT IT WILL OPERATE IN COMBINATION WITH ANY OTHER SOFTWARE, EQUIPMENT OR DATA, (B) THAT THE SOFTWARE OR SERVICES WILL MEET THE CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (C) THAT ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THAT ERRORS OR DEFECTS WILL BE CORRECTED OR (F) THAT THE SOFTWARE OR SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS.
INSTANT’S SOFTWARE AND SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. INSTANT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY, FAILURES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
Section 8. Confidential Information
The parties have executed a Mutual Non-Disclosure Agreement and all information of a confidential nature disclosed between the parties in connection with this Agreement shall be governed by such agreement.
Section 9. Indemnification
A. Instant shall indemnify, defend and hold harmless Customer (including its Affiliates, and its and their respective officers, directors, employees, agents, successors and permitted assigns thereof) from and against any and all Losses (as hereinafter defined) arising out of or in connection with (i) the breach by Instant of its obligations under this Agreement or (ii) the injury of or damage to any person or real or tangible personal property to the extent such injury or damage is caused by the gross negligence or intentional misconduct of Consultant or Consultant's employees, agents, or subcontractors. Notwithstanding the foregoing, Instant shall have no indemnification obligation and Customer shall indemnify Instant, for claims arising from any infringement arising from the combination of Software or Services with any of Customer’s products, services, hardware or business processes.
B. Customer shall indemnify, defend and hold harmless Instant (and its respective officers, directors, employees, agents, successors and permitted assigns thereof) from and against any and all Losses arising out of or in connection with (i) Customer's breach of its obligations under this Agreement or any PO, and/or (ii) Customer's willful misconduct and/or intentional or grossly negligent actions or breaches hereunder.
C. For purposes of this Agreement and any POs issued hereunder, "Losses" shall mean and include any and all losses, liabilities, damages, claims, costs (including, but not limited to, cost of cover), penalties, expenses, and fees (including, but not limited to, reasonable attorneys' fees, disbursements of counsel, and costs of investigation, litigation, third party discovery, and settlement, incurred in any action or proceeding between Customer and Instant or between either party and any third party).
D. In the event either party seeks indemnification from the other, such party shall provide the other party with prompt written notice of any such claims, and the parties shall cooperate with each other in connection with the defense of such action. Instant may, at its sole option and at its own expense, control the defense of any infringement action, including the right to settle any such claim.
Section 10. Limitation of Liability; Consequential Damages
NEITHER PARTY TO THIS AGREEMENT SHALL BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR LOST SAVINGS) ARISING FROM, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT AND/OR ANY SCHEDULES ISSUED HEREUNDER, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES, AND EACH PARTY’S AGGREGATE LIABILITY HEREUNDER (EXCEPT WITH RESPECT TO INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT OR IN CASES OF INTENTIONAL MISCONDUCT) SHALL IN NO EVENT EXCEED THE TOTAL FEES PAID BY CUSTOMER TO CONSULTANT UNDER THE APPLICABLE PURCHASE ORDERS DURING THE ONE YEAR PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. THIS LIMITATION OF LIABILITY APPLIES REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE.
Section 11. Independent Contractor
Instant acknowledges that Instant, its subcontractors, if any, and their respective employees who perform work in connection with the provision of Services hereunder (i) are independent contractors and, for any and all purposes (including, but not limited to, federal or state tax purposes), shall not be considered employees of Customer, (ii) are not the legal representatives or agents of Customer for any purpose whatsoever, and (iii) do not have the power to obligate Customer for any purpose whatsoever. Instant further acknowledges that the scope of Services hereunder does not include any supervisory responsibilities by Instant with respect to Customer personnel. Instant expressly acknowledges that the relationship intended to be created by this Agreement is a business relationship based entirely on and circumscribed by the express provisions of this Agreement, and that no partnership, joint venture, agency, fiduciary, or employment relationship is intended or created by reason of this Agreement. No person engaged by Instant (or its subcontractors, if any) to perform Services hereunder shall be entitled to participate in Customer's employee insurance or retirement programs. Instant shall be solely responsible for payment of worker's compensation, disability, medical, and/or other similar benefits, unemployment or other similar insurance, all necessary liability insurance of Instant, if appropriate, and for withholding income and reporting wages on behalf of its employees in accordance with all applicable laws, statutes, and regulations, and/or other similar taxes or social security for Instant as levied by any governmental authority.
Section 12. Records & Audit
Customer shall maintain, during the term of this Agreement and for a period of at least two (2) years thereafter, reasonably complete and accurate records (in accordance with standard accounting practices) of all usage of Software and Services delivered to Customer under this Agreement. Instant and/or its authorized representatives reserve the right, upon Instant's reasonable request and from time to time during regular business hours, to inspect, audit, and/or copy any records, Software and hardware or other equipment pertaining to Customer's usage of the same. If such inspection or audit reveals any excessive usage of Software, Services or other deliverables beyond that authorized under this Agreement or any PO, Customer shall pay to Instant the charges owing for such excessive usage within 15 days after Customer's receipt of written notice thereof unless Customer refutes or disputes such charges. Customer shall have a period of 30 days within which to refute or dispute in writing the findings of any such inspection or audit. The parties agree to work in good faith to resolve such dispute within 15 days thereafter. Customer shall bear the costs of any such inspection and audit if any excessive charges exceed five percent (5%) of the amounts actually due and owing by Customer for the 90 day period preceding the date the audit commenced.
Section 13. General
A. Force Majeure & Delays: In no event shall either party be liable for any failure or delay in performance due to causes or circumstances beyond its reasonable control and without its fault or negligence (including, but not limited to, Acts of God, acts of the public enemy, acts of the United States of America, or any state, territory or political division of the United States of America, or of the District of Columbia, fires, floods, or other natural disaster, strikes or any other labor disputes, communication line failures, and/or freight embargoes). The party claiming such a failure or delay must promptly notify in writing the other party of such failure or delay. In the event that any such failure or delay by Instant continues for a period of more than five (5) business days, Customer shall, upon written notice to Instant, have the option of terminating the applicable PO without any further liability whatsoever to Instant.
B. Non-Exclusive Remedies; Attorneys' Fees: Any remedies expressly provided for in this Agreement and/or available to either party hereunder are cumulative and non-exclusive, and may be exercised concurrently or separately. The exercise of any one remedy shall not be construed to prohibit either party from pursuing any and all other remedies that may be available at law, in contract, or in equity. The prevailing party in any dispute and/or legal action brought hereunder shall also be entitled to recover all reasonable out of pocket costs and expenses (including, but not limited to, reasonable court costs and attorneys' fees) incurred as a result thereof.
C. Assignment: Neither party may assign, transfer, delegate, or pledge this Agreement (including any POs hereunder) and/or any of its obligations hereunder to any third party without the prior written consent of the other party. Notwithstanding the foregoing, Customer may, with the prior written consent of Instant, which shall not be unreasonably withheld, assign, transfer, delegate, or pledge this Agreement (including any POs hereunder) and/or any of its rights or obligations hereunder to any of its Affiliates or in connection with a consolidation, merger, sale, divestiture, or spin-off of substantially all of its (or any of its Affiliates', business units' or business lines') assets, provided that the assignee or successor in interest assumes in writing the obligations of Customer hereunder. Subject to the provisions set forth above in this Section 16, this Agreement (including any POs hereunder), and the covenants and agreements herein contained, shall inure to the benefit of and be binding on the parties hereto and their respective permitted successors and assigns.
D. Severability: In the event any one or more of the provisions of this Agreement shall for any reason be held to be invalid, void, illegal, or unenforceable by any court, arbitrator, or governmental agency, the remaining provisions of this Agreement shall remain in full force and effect, and the invalid, void, illegal, and/or unenforceable provision(s) shall survive to the extent not so held. To the extent reasonably possible and practicable, the invalid, void, illegal, or unenforceable provision(s) shall be replaced by a mutually acceptable valid, legal, and enforceable provision(s) which best reflects the parties' intentions underlying the replaced invalid, void, illegal, or unenforceable provision(s).
E. Waiver: The failure of either party to insist upon the performance of any obligations, terms, or conditions of this Agreement, to exercise any right or privilege conferred hereunder, or to enforce any remedies or penalties resulting from any breach hereof, shall not be construed as a waiver of any such obligations, terms, conditions, rights, privileges, remedies, or penalties. No obligation, term, condition, right, privilege, remedy, or penalty shall be deemed waived, and no breach of this Agreement shall be deemed consented to, unless and until such waiver or consent is specifically expressed in a writing signed by the party claimed to have so waived or consented. No such written waiver shall constitute a waiver of any other obligation, term, condition, right, privilege, remedy, or penalty hereunder, and no such written consent shall constitute a consent to any other breach hereof.
F. Entire Agreement; Amendments; Section Headings: The provisions, terms, and conditions of this Agreement (and any POs hereunder) represent the entire agreement and understanding between the parties hereto with respect to the subject matter hereof, and supersede any and all prior and contemporaneous agreements, understandings, documents, negotiations, and/or discussions (whether oral or written) between the parties. No supplement, amendment, or modification to this Agreement shall be valid, enforceable, or binding upon the parties unless made in writing and signed by an authorized representative of both parties. In the event of any conflict or inconsistencies between the terms and conditions of this Agreement (including any amendments thereto and/or POs hereunder) and those set forth in any document provided by Instant, the terms and conditions of this Agreement shall take precedence and prevail, except as otherwise expressly provided in this Agreement. The headings of the sections in this Agreement are for the purposes of convenient reference only and are not intended to be part of this Agreement, or to limit or affect the meaning or interpretation of any of the terms hereof.
G. Governing Law; Forum: This Agreement and all POs shall be governed by and construed in accordance with the laws of the State of Texas, without regard to the principles of conflicts of laws. Each party agrees to submit any disputes, actions, claims or causes or action arising out of or in connection with this Agreement or any PO shall be subject to the exclusive jurisdiction of the state and federal courts located in Austin, Texas.
H. Notices: Any and all notices, requests, demands, or other communications hereunder shall be in writing and be deemed to have been duly given (a) when delivered by hand to an authorized representative, (b) one (i) business day after being given to an express overnight courier, (c) when sent by e-mail to support@instantsoftware.com for Instant or the email address for Customer as provided by Customer to Instant in writing or (d) 5 days after the day of mailing, when mailed by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows: for Instant, to the address then posted on www.instantsoftware.com, and for Customer, to the address provided by Customer in writing to Instant.
I. Survival: Any provision of or obligation under this Agreement which contemplates performance or observance subsequent to any termination or expiration of this Agreement shall survive any such termination or expiration, and shall continue in full force and effect. In addition, all provisions of this Agreement shall survive the termination or expiration of this Agreement to the fullest extent necessary to give the parties the full benefit of the bargain expressed herein and of the intent contemplated hereunder.