SOFTWARE
LICENSE AGREEMENT
THIS IS A LEGAL AGREEMENT BETWEEN YOU, THE
EMPLOYEE, THE INDIVIDUAL, OR THE ENTITY IDENTIFIED AS “CUSTOMER” (AS DEFINED
HEREinafter) AND Rapid Digital LLC .
THIS AGREEMENT STATES THE TERMS and conditions UNDER WHICH CUSTOMER MAY
USE THE Store Locator Script (aka PHP Store Locator Script, aka PSL, aka Locator Script aka Rapid Digital LLC). BY clicking on the accept button, INSTALLING, HAVING
Store Locator Script (PSL) INSTALLED ON CUSTOMER’s BEHALF, COPYING, HAVING PHP Store
Locator COPIED ON CUSTOMER’s BEHALF, USING OR HAVING Store Locator Script USED ON
CUSTOMER’s BEHALF, CUSTOMER INDICATES THAT CUSTOMER HAS READ AND UNDERSTANDS
THIS AGREEMENT AND AGREES TO BE BOUND BY THE TERMS SET FORTH IN THIS
AGREEMENT. IF “Store Locator Script (PSL)” IS
INSTALLED, COPIED OR USED ON BEHALF OF CUSTOMER, THE TERMS SET
PHP Store
Locator Agreement
This Store Locator Script (PSL) Agreement (“Agreement”) is made
as of the Effective Date by and between Rapid Digital LLC , a corporation
with offices located at Myrtle Beach, South Carolina and the individual or entity identified on the Sales Agreement as
customer (“Customer”).
W I T
N E S S E T H:
WHEREAS, Rapid Digital LLC owns that certain PHP Store
Locator application entitled Store Locator Script (PSL); and
WHEREAS, Customer has had an opportunity to review and approve the
functions and utilities of Store Locator Script (PSL) and is familiar with the use and
operation of Store Locator Script (PSL); and
WHEREAS, Customer has independently determined that PHP Store
Locator will meet the needs of Customer for a Web hosting with the following
installed, PHP 4+, PHP GD Modules, PHP cURL Modules,
PHP session Modules, PHP MySQL Modules, MySQL Version 4+, 1 MySQL database for PHP
Store Locator application at the Facility (as defined below); and
WHEREAS, Customer desires to receive a
license to use Store Locator Script (PSL).
NOW THEREFORE, in consideration
of the mutual benefits of the covenants and restrictions herein contained, Rapid Digital LLC and Customer hereby agree as follows:
ARTICLE
I: RECITALS AND DEFINITIONS
Section 1.01 -- Recitals: The above recitals and
identification of parties are true and correct.
Section 1.02 -- Definitions: The following definitions
shall apply:
(1)
Access:
The term “Access” and variants thereof shall mean to store data in,
retrieve data from or otherwise approach or make use of (directly or
indirectly) through electronic means or otherwise.
(2)
PHP
Store Locator: The term “Store Locator Script (PSL)” shall mean the object code for that certain PHP Store
Locator application, including the Documentation, as provided by Rapid Digital LLC
to Customer hereunder, including Updates.
(3)
Associate:
The term “Associate” shall mean an employee of Rapid Digital LLC
or an independent contractor hired by Rapid Digital LLC .
(4)
Authorized
Person: The term “Authorized Person” shall mean
Customer or employees of Customer who agree in writing to maintain the
confidentiality of Confidential Information and individuals or organizations
who are authorized in writing by Rapid Digital LLC to receive
Confidential Information and who agree in writing to maintain the
confidentiality of such Confidential Information.
(5)
Cancellation
Notice: The term “Cancellation Notice” shall mean
that written notice sent by Rapid Digital LLC to Customer seeking to
cancel this Agreement because of breach of this Agreement by Customer.
(6)
Confidential
Information: The term “Confidential Information” shall
mean all information concerning this Agreement, Store Locator Script (PSL), and the
business and technical plans of Rapid Digital LLC which is disclosed by Rapid Digital LLC to Customer or learned by Customer.
(7)
Defects:
The term “Defects” shall mean programming errors which substantially
impair the performance, utility and functionality of Store Locator Script (PSL), as
represented in the Documentation.
(8)
Defect
Notice: The term “Defect Notice” shall mean that
certain written notice from Customer to Rapid Digital LLC identifying
Defects.
(9)
Delivery
Date: The term “Delivery Date” shall mean the date PHP
Store Locator is delivered to Customer (as applicable).
(10)
Deposit: The
term “Deposit” shall mean a sum of money equal to fifty percent (50%) of the
Price.
(11)
Documentation:
The term “Documentation” shall mean the Store Locator Script (PSL) user guide (in
electronic or printed format) as provided to Customer on the Delivery Date.
(12)
Documentation
Fee: The term “Documentation Fee” shall mean the
sum of money paid by Customer to Rapid Digital LLC for additional copies
of Documentation requested by Customer pursuant to Section 3.02. determined in accordance with Rapid Digital LLC then
standard rates as of the date Customer’s request for additional copies of the
Documentation is received by Rapid Digital LLC .
(13)
Effective
Date: The term “Effective Date” shall mean the
earlier of the date that the Sales Agreement is executed by Rapid Digital LLC Rapid Digital LLC and Customer or the date Store Locator Script (PSL) is installed or used.
(14)
Event
of Bankruptcy: The term “Event of Bankruptcy” shall mean:
(1) the filing of a petition under any insolvency or bankruptcy statute seeking
the declaration of Customer as insolvent or bankrupt; (2) the filing of any
action seeking receivership or reorganization of Customer pursuant to or under
any insolvency or bankruptcy statute; or (3) the filing of any involuntary
petition against Customer pursuant to any insolvency or bankruptcy statute if
such petition shall remain unstayed or undismissed for a period of ten (10) days after filing.
(15)
Implement:
The term “Implement” and variants thereof (including, but not limited
to, the terms “implementation”, “implementing” and “implemented”) shall mean to
load.
(16)
Maintenance
Services: The term “Maintenance Services” shall mean
Defect resolution services concerning Store Locator Script (PSL) (excluding the System)
as provided by Rapid Digital LLC to Customer for the prevailing fees and
time and material rates published by Rapid Digital LLC and subject to Rapid Digital LLC standard maintenance terms.
(17)
Price: The
term “Price” shall mean the total price to be paid by Customer to Rapid Digital LLC
for the System and for licensing Store Locator Script (PSL), as set forth
in the Price Schedule.
(18)
Restatements:
The term “Restatements” shall mean Section 757 of the Restatement of
Torts, Section 39 of the Restatement (Third) of Unfair Competition, Section 1
of the Uniform Trade Secrets Act, and Section 1839 of Title 18 of the United
States Code (18 U.S.C. § 1839).
(19)
Services:
The term “Services” shall mean Maintenance Services and that certain PHP
Store Locator installation, training, telephone support, development and
consulting services as requested by Customer and approved by Rapid Digital LLC in writing.
(20)
Term: The
term “Term” shall mean a period of time commencing on the Effective Date and
continuing until this Agreement is terminated or canceled under Article IV.
(21)
Third
Party Technology: The term “Third Party Technology” shall mean
third party software, computer, hardware, peripherals, components, devices,
equipment and technology used in connection with or related to PHP Store
Locator.
(22)
Unauthorized
Access: The term “Unauthorized Access” shall mean any
access to Store Locator Script (PSL) except for the exclusive purpose of [Primary
Software Purpose], and training employees of Customer in the use of PHP Store
Locator.
(23)
Unauthorized
User: The term “Unauthorized User” shall mean any
individual who accesses Store Locator Script (PSL) except for: (1) employees of Customer
authorized by Customer to access Store Locator Script (PSL) and who agrees to maintain
the confidentiality of Confidential Information for the exclusive purpose of
performing entering store locations and finding store locations, and training
employees of Customer in the use of Store Locator Script (PSL) and (2) Authorized
Persons authorized in writing by Rapid Digital LLC to access PHP Store
Locator.
(24)
Updates: The
term “Updates” shall mean the object code for updates, upgrades, new versions,
new releases or modifications to Store Locator Script (PSL) as generally made available
by Rapid Digital LLC from time to time to Rapid Digital LLC
customers for the applicable fee.
(25)
Warranty
Term: The term “Warranty Term” shall mean a period
of time commencing on the Delivery Date and ending on the date which is sixty
(60) days thereafter.
ARTICLE
II: Store Locator Script (PSL)
Section 2.01 -- Grant of License: Rapid Digital LLC hereby grants to Customer a non-exclusive and non-transferable license
to use Store Locator Script (PSL) and to use the Documentation at the Facility for the
License Term, subject to the terms and provisions of this Agreement.
Section 2.02 -- Delivery: Customer hereby acknowledges
Rapid Digital LLC shall deliver Store Locator Script (PSL) on the Delivery Date.
Section 2.03 -- Implementation: Customer shall
install the Store Locator Script (PSL). Customer shall
implement Store Locator Script (PSL) on the System, subject
to the terms and conditions of this Agreement.
Section 2.04 -- Acceptance: Store Locator Script (PSL) shall be
deemed accepted by Customer ten (10) days after the Delivery Date unless Defect
Notice is received by Rapid Digital LLC by such tenth day. Upon receiving Defect Notice from Customer, Rapid Digital LLC shall review the asserted Defect to determine if the
Defect is valid. If, in the reasonable
professional judgment of Rapid Digital LLC the asserted Defect is valid,
Rapid Digital LLC shall correct the Defect and resubmit PHP Store
Locator for acceptance by Customer. If,
in the reasonable professional judgment of Rapid Digital LLC the
asserted Defect is not valid, Rapid Digital LLC shall submit to Customer
a written explanation of the reasons why such asserted Defect is not valid. The
written explanation of Rapid Digital LLC set forth herein shall be
deemed accepted by Customer within ten (10) days after receipt by Customer of
such written explanation unless Rapid Digital LLC receives from Customer
written notice rejecting such explanation and terminating this Agreement within
such ten (10) day period. Upon receipt
of Defect Notice from Customer by Rapid Digital LLC as set forth above, PHP
Store Locator shall be deemed accepted by Customer except as to the asserted
Defects specified in the Defect Notice.
Section 2.05 -- Risk of Loss: Customer shall
assume risk of loss to Store Locator Script (PSL) as of the Delivery Date. Customer shall keep Store Locator Script (PSL)
protected and in good working order, maintained and insured against loss for
full replacement value until the date that the Price is paid in full by
Customer.
Section 2.06 -- Authorized Use: Customer shall
prevent Unauthorized Users from accessing Store Locator Script (PSL). Customer shall prevent Unauthorized Access to
Store Locator Script (PSL). Customer shall promptly inform Rapid Digital LLC of
any and all Unauthorized Access (or suspected Unauthorized Access) and
Unauthorized Users (or suspected Unauthorized Users) of which Customer has knowledge
or suspicion. Access to PHP Store
Locator using third party products for purposes of manipulating, viewing,
disclosing or using the internal structure of Store Locator Script (PSL)™ or for
creating a database, data dictionary or data model shall be deemed Unauthorized
Access.
Section 2.07 -- Site Restriction: Customer shall use PHP
Store Locator only on the System and only at the Facility.
Section 2.08 -- End Use: Customer hereby represents
and warrants that Store Locator Script (PSL) is being licensed by Customer for its own
use at the Facility and not for rental, leasing, resale, sublicensing,
distribution, outsourcing, or offering service bureau services.
Section 2.09 -- Services: Customer may request
Services, as approved by Rapid Digital LLC . All Services shall be subject to the
discretion of Rapid Digital LLC and shall be subject to Rapid Digital LLC
standard service terms and applicable time and material rates.
ARTICLE
III: PAYMENT
Section 3.01 -- Price: Customer shall pay the
Deposit on the Effective Date. Customer
shall pay the difference between the Price and the Deposit on the Delivery
Date.
Section 3.02 -- Documentation Fee:
Additional copies of the Documentation may be purchased by Customer from
Rapid Digital LLC upon request by Customer and upon payment of the
Documentation Fee.
Section 3.03 -- Costs: Customer shall pay all
costs incurred by Rapid Digital LLC in performing this Agreement. Such
costs shall include (without limitation) postage, freight, telecommunications,
fees charged by third parties, telephone, travel, lodging, per diem, material
and reproduction costs.
Section 3.04 -- Taxes: Customer shall pay any
and all taxes attributable to this Agreement, to the transactions contemplated
hereunder or to the transactions performed by Customer or third parties using PHP
Store Locator, including, without limitation, any applicable sales or use
taxes. Notwithstanding the foregoing,
Customer shall not be responsible for paying any income taxes assessed against Rapid Digital LLC .
Section 3.05 -- Late Fee: Any amount which is not
paid when due shall be increased by a late charge equal to 1% of such unpaid
amount for each month (or portion thereof)
in which such amount is due and not paid.
Section 3.06 -- Invoicing and Payment:
Services shall be performed by Rapid Digital LLC at the time and
material rates of Rapid Digital LLC prevailing at the time such Services
are rendered. Rapid Digital LLC
shall invoice Customer for fees and costs in connection with the Services. Customer shall pay any such invoice in full
on the due date thereof or within thirty (30) days of receiving such invoice
(whichever is earlier).
ARTICLE
IV: TERMINATION
Section 4.01 -- Termination Limitations:
This Agreement shall only be terminated or canceled as provided under
this Article IV.
Section 4.02 -- Term: This Agreement shall be
valid for the Term.
Section 4.03 -- Termination: Customer may
terminate this Agreement for convenience upon providing ten (10) days written
notice of termination to Rapid Digital LLC , subject to the terms and
provisions of this Agreement.
Section 4.04 -- Cancellation for Cause: If
Customer violates its obligations under this Agreement, Rapid Digital LLC may cancel this Agreement by sending Cancellation Notice describing the
noncompliance to Customer. Upon
receiving Cancellation Notice, Customer shall have ten (10) days from the date
of such notice to cure any such noncompliance. If such noncompliance is not
cured within the required ten (10) day period, Rapid Digital LLC shall
have the right to cancel this Agreement as of the eleventh day after the date
of the Cancellation Notice.
Section 4.05 -- Return: Upon termination or
cancellation of this Agreement, Customer shall promptly remove (at Customer’s
expense) all customer information and data stored in Store Locator Script (PSL) and
return to Rapid Digital LLC the Store Locator Script (PSL), the Documentation and
all Rapid Digital LLC materials provided by Rapid Digital LLC to
Customer hereunder and shall provide Rapid Digital LLC with a
certificate of compliance with this Section 4.05 signed by an authorized
representative of Customer. Orders under
the Sales Agreement terminated or cancelled by Customer or changes made by
Customer within ten (10) days after the Effective Date or before implementation
of Store Locator Script (PSL) on the System has started (whichever is earlier) are
subject to Rapid Digital LLC and Manufacturer’s standard return and
refund policy in effect, including (without limitation) restocking fees and
other applicable fees. Upon termination
or cancellation of this Agreement ten (10) days after the Effective Date or
after implementation of the PHP Store
Locator, Rapid Digital LLC shall be entitled to retain all payments
rendered to Rapid Digital LLC under this Agreement, including (without
limitation) the Deposit, the Price, payment for the Services, and payments in
anticipation of Services.
ARTICLE
V: WARRANTY
Section
5.01 -- Warranty: Rapid Digital LLC represents and
warrants that Store Locator Script (PSL) shall perform substantially as represented in
the Documentation for the Warranty Term.
Customer’s exclusive remedy for breach of warranty shall be modification
or replacement of Store Locator Script (PSL), as determined by Rapid Digital LLC .
Section 5.02 -- Third Party Warranties: Rapid Digital LLC hereby assigns to Customer the benefit of any and all
Manufacturer warranties for the Third Party Technology and may cooperate (as
determined by Rapid Digital LLC ) with Customer in securing the benefit
of any remedies available to Customer under any such Manufacturer warranty.
Section 5.03 -- Service Warranty: Any
Services provided by Rapid Digital LLC pursuant to this Agreement shall
be performed on a reasonable efforts basis in a timely and professional manner
and shall conform to the standards generally observed in the industry for similar
Services and shall be subject to Sections 5.01, 5.04, 5.05 and 5.08.
SECTION 5.04 -- DISCLAIMER:
THE WARRANTIES SET FORTH IN SECTIONS 5.01 AND 5.03 ARE IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, AND Rapid Digital LLC HEREBY
DISCLAIMS AND CUSTOMER HEREBY WAIVES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING (WITHOUT LIMITATION) ANY AND ALL IMPLIED WARRANTIES OF FITNESS FOR A
PARTICULAR PURPOSE AND IMPLIED WARRANTIES OF MERCHANTABILITY.
Section 5.05 -- Express Warranties:
Customer hereby acknowledges and agrees that Rapid Digital LLC
(including Rapid Digital LLC officers, employees, agents, directors,
independent contractors, affiliates, distributors and successors) has not made
or granted any express warranties concerning the System, the Services and PHP
Store Locator except as expressly set forth in Sections 5.01 and 5.03 of this
Agreement.
Section 5.06 -- Third Party Claims: If
a final judgment from a court of competent jurisdiction is entered against
Customer upholding claims that Store Locator Script (PSL) violates a United States
patent, copyright, trade secret or other proprietary rights of a third party in
the United States, provided that Customer gives Rapid Digital LLC prompt
written notice upon Customer’s knowledge of any such claim, permits Rapid Digital LLC
to answer and defend (at Rapid Digital LLC option) such
claim or action and provides Rapid Digital LLC with information,
assistance and authority to assist Rapid Digital LLC in the defense of
such claim or action, Rapid Digital LLC shall perform one or more of the
following actions (as determined by Rapid Digital LLC ) within one year
of the date final judgment in favor of such third party’s claim is rendered by
a court of competent jurisdiction:
(1) Replacement: Replace Store Locator Script (PSL) with a
non-infringing Store Locator Script (PSL) product of substantially equivalent functional
and performance capability;
(2) Modification: Modify Store Locator Script (PSL) to avoid the
infringement without substantially eliminating the functional and performance
capabilities of Store Locator Script (PSL);
(3) Obtain
Agreement: Obtain a license for use
of Store Locator Script (PSL) from the third party claiming infringement for use of PHP
Store Locator.
Rapid Digital LLC shall have the right to participate or
assume the defense (as determined by Rapid Digital LLC ) and Customer
shall permit and authorize Rapid Digital LLC to participate in or assume
the defense of any such claim or action through legal counsel. The foregoing remedy does not apply and Rapid Digital LLC shall have no obligation in connection with or relating
to any third party infringement claim in connection with or related to (i) Customer’s modification of Store Locator Script (PSL); (ii)
Customer’s failure to use Store Locator Script (PSL) in accordance with the
Documentation in effect; (iii) Customer’s failure to use the most current
release or version of Store Locator Script (PSL); (iv) Customer’s combination,
interface, operation or use of Store Locator Script (PSL) with Third Party Technology;
and (v) Rapid Digital LLC compliance with designs, instructions, or
specifications required by Customer. The
remedies set forth herein shall be the sole and exclusive remedies of Customer
under this Agreement for any and all claims of indemnification relating to
infringement. Rapid Digital LLC
obligations set forth in this Section 5.06 shall not apply to the Third Party
Technology.
Section 5.07 -- Remedies: The exclusive remedy of
Customer for any reason and for any cause of action whatsoever in connection
with or relating to this Agreement, the System, Store Locator Script (PSL) or any
transaction involving Store Locator Script (PSL), regardless of the form of action,
whether in contract or in tort, including negligence and breach of warranty,
shall be limited to repair or replacement of Store Locator Script (PSL) as determined by
Rapid Digital LLC .
Section 5.08 -- Limitation of Damages: Rapid Digital LLC shall not be liable to Customer in
connection with or relating to this Agreement, the System, Store Locator Script (PSL)
and any transactions involving Store Locator Script (PSL) for any direct, indirect, lost
profits, consequential, exemplary, incidental or punitive damages, regardless
of the form of action, whether in contract or in tort, including breach of
warranty and negligence, regardless of whether Rapid Digital LLC has
been advised of the possibility of such damages in advance or whether such
damages are reasonably foreseeable.
Notwithstanding anything to the contrary, the liability of Rapid Digital LLC
for any reason and for any cause of action whatsoever in
connection with or relating to this Agreement, the System Store Locator Script (PSL) and
any transactions involving Store Locator Script (PSL) shall be limited to the license
fee for Store Locator Script (PSL).
Section 5.09 -- Force Majeure: Rapid Digital LLC shall not be liable for any failure by Rapid Digital LLC to perform its obligations under this Agreement because of circumstances
beyond the reasonable control of Rapid Digital LLC , which such circumstances
shall include (without limitation) natural disaster, terrorism, riot, sabotage,
labor disputes, war, any acts or omissions of any government, governmental
authority or third party, declarations of governments, transportation delays,
power failure, computer failure, telecommunications failure, Third Party
Technology, failure of Customer to cooperate with the reasonable requests of Rapid Digital LLC , misuse of the System or Store Locator Script (PSL) by Customer or
third party, breach of this Agreement by Customer or a third party and any
other events reasonably beyond the control of Rapid Digital LLC .
Section 5.10 -- Customer Indemnification:
Customer shall release, defend, indemnify and hold harmless Rapid Digital LLC
(including its officers, directors, employees, affiliates,
independent contractors, distributors, agents and successors) against any
expense, loss, cost or liability (including, without limitation, interest,
penalties, attorney fees and paralegal fees) arising from any and all claims,
demands, damages or actions resulting from or related to (1) use of PHP Store
Locator by Customer, (including, without limitation, any claim regarding use of
Store Locator Script (PSL) by Customer in an
infringing manner or any claim by third parties for breach of warranty,
negligence, loss of data, libel, slander, unfair competition, trademark
infringement, or invasion of privacy); (2) performance of Store Locator Script (PSL);
(3) Customer’s negligence or the acts (or any failure to act) of Customer
hereunder; (4) any breach by Customer of the obligations of Customer hereunder;
and (5) investigation or defense of any of the above or in asserting Rapid Digital LLC
rights hereunder.
Section 5.11 -- Cooperation: Customer shall cooperate
with Rapid Digital LLC by providing Rapid Digital LLC with
information concerning Store Locator Script (PSL) and the System as may be requested by Rapid Digital LLC from time to time and by providing Rapid Digital LLC with unrestricted access to the personnel, facilities, computers,
computer Store Locator Script (PSL) and data of Customer.
Section 5.12 -- Maintenance: Customer hereby
acknowledges and agrees that Customer shall solely be responsible for acquiring,
installing, implementing, updating, upgrading, maintaining and replacing the
System and all Third Party Technology for any reason, including (without
limitation) for Updates or correction of Defects, including (without
limitation) all costs, fees, taxes and payments in connection therewith or
related thereto.
Section 5.13 -- Security Interest: Rapid Digital LLC hereby reserves and Customer hereby grants to Rapid Digital LLC
a purchase money security interest in the System and PHP Store
Locator to secure payment of the Price by Customer. In order to perfect such security interest,
Customer hereby appoints Rapid Digital LLC as the true and lawful
attorney-in-fact of Customer and Customer hereby authorizes Rapid Digital LLC to (1) execute in the name of Customer all forms, documents and
financing statements deemed desirable by Rapid Digital LLC , and (2) file
copies of the Sales Agreement, this Agreement and any forms and financing
statements with appropriate government agencies and offices as deemed necessary
by Rapid Digital LLC to perfect such purchase money security interest.
Section 5.14 -- Repossession: If Customer fails to
pay the balance of the Price when due (as provided in Section 3.01 of this
Agreement), Rapid Digital LLC shall have the right to enter the Facility
and to repossess the System and Store Locator Script (PSL) without further notice. If any Event of Bankruptcy occurs before
payment of the balance of the Price when due (as provided in Section 3.01 of
this Agreement), Rapid Digital LLC shall be entitled to any and all
remedies available to a secured creditor under the U.S. Bankruptcy Code and
applicable state or federal law.
ARTICLE
VI: INTELLECTUAL PROPERTY
Section 6.01 -- Ownership and Title:
Title to Store Locator Script (PSL), including all ownership rights to patents,
copyrights, trademarks and trade secrets therein or in connection therewith
shall be the exclusive property of Rapid Digital LLC . Customer hereby assigns, transfers and
conveys to Rapid Digital LLC any and all rights, title and interests
Customer may have or accrue in Store Locator Script (PSL), including (without
limitation) any and all ownership rights to patents, copyrights, trademarks and
trade secrets therein or in connection therewith.
Section 6.02 -- Confidential Information: PHP
Store Locator shall be deemed Confidential Information of Rapid Digital LLC . Customer shall maintain the
Confidential Information in strict confidence.
Customer shall not disclose Confidential Information except to
Authorized Persons. Customer shall not access, duplicate or use the Confidential
Information except as otherwise permitted under this Agreement.
Section 6.03 -- Trade Secrets: Customer hereby
acknowledges and agrees that the Confidential Information (i)
derives independent economic value (actual or potential) from not being
generally known to, or readily ascertainable by, other persons who can obtain
economic value from its disclosure or use; (ii) is the subject of reasonable
efforts by Rapid Digital LLC under the circumstances to maintain its
secrecy; and (iii) is a trade secret as defined under Chapter 688 of the
Florida Statutes [§688.002(4)] and the Restatements.
Section 6.04 -- Reverse Engineering:
Customer shall not reverse engineer Store Locator Script (PSL) and shall not
allow Store Locator Script (PSL) to be reverse engineered.
Section 6.05 -- Backup Copy: Customer may create one
copy of Store Locator Script (PSL) (excluding the printed Documentation) at the Facility
only for routine archival or backup purposes.
Section 6.06 -- Copies: Except as provided in
Section 6.05, Customer shall not copy Store Locator Script (PSL) and shall not allow PHP
Store Locator to be copied without the prior written consent of Rapid Digital LLC
.
Section 6.07 -- Modifications: Customer shall not
modify Store Locator Script (PSL) and shall not allow Store Locator Script (PSL) to be modified
without the prior written consent of Rapid Digital LLC . Customer shall not use Store Locator Script (PSL) or
any materials incident thereto to develop computer Store Locator Script (PSL) without
the prior written consent of Rapid Digital LLC . If Store Locator Script (PSL) is modified, such
modifications shall be the sole and exclusive property of Rapid Digital LLC shall own any and all rights, title and interests
to such modifications and any resulting computer Store Locator Script (PSL), including
(without limitation) any and all copyrights, patents and trade secrets therein
or in connection therewith.
Section 6.08 -- No Contest: Customer shall not
contest or aid in contesting the ownership or validity of the trademarks,
service marks, trade secrets, or copyrights of Rapid Digital LLC .
Section 6.09 -- Employee Pirating:
Customer shall not induce or solicit (directly or indirectly) any
Associate to leave the employ or hire of Rapid Digital LLC . Customer shall not engage (directly or
indirectly) the services of such Associate (as an employee, consultant,
independent contractor, or otherwise) without the advance written consent of Rapid Digital LLC .
Section 6.10 --
Section 6.11 -- Proprietary Notices:
Customer shall not remove, alter or obscure any copyright notices or
other proprietary legends displayed by or used by Rapid Digital LLC in
connection with or related to Store Locator Script (PSL).
Section 6.12 -- Trademarks: Rapid Digital LLC trademarks, trade dress, logos, tradenames
or insignia (“Rapid Digital LLC Marks”), including (without limitation) PHP
Store Locator, are owned exclusively by Rapid Digital LLC . Rapid Digital LLC shall retain all rights, title and ownership interests in
Rapid Digital LLC Marks. Customer
shall not (directly or indirectly) use any trademark, tradename,
trade dress, insignia or logo that is similar to or a colorable imitation of
any Rapid Digital LLC Marks.
Section 6.13 -- Continuation: The terms and
conditions of this Article VI shall survive termination and cancellation of
this Agreement.
ARTICLE
VII: MISCELLANEOUS
Section 7.01 -- Assignments: All assignments of rights
under this Agreement by Customer without the prior written consent of Rapid Digital LLC
shall be void.
Section 7.02 -- Public Announcement:
All public announcements of the relationship of Rapid Digital LLC
and Customer under this Agreement shall be subject to the prior written
approval of Rapid Digital LLC . Rapid Digital LLC shall have the
right to use the name of Customer as a reference for marketing purposes in
connection with Store Locator Script (PSL).
Section 7.03 -- Entire Agreement: This Agreement and
the Sales Agreement contain the entire understanding of the parties and
supersede previous verbal and written agreements between the parties concerning
the System and Store Locator Script (PSL). In the
event of a conflict between the terms of this Agreement and the terms of the
Sales Agreement, the terms of this Agreement shall prevail.
Section 7.04 -- Amendments and Modifications:
Alterations, modifications or amendments of a provision of this
Agreement shall not be binding unless such alteration, modification or
amendment is in writing and signed by Rapid Digital LLC and Customer.
Section 7.05 -- Severability: If a provision of
this Agreement is rendered invalid, the remaining provisions shall remain in
full force and effect.
Section 7.06 -- Captions: The headings and captions
of this Agreement are inserted for convenience of reference and do not define,
limit or describe the scope or intent of this Agreement or any particular
section, paragraph, or provision thereof.
Section 7.07 -- Counterparts: This Agreement may
be executed in multiple counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
Section 7.08 -- Governing Law: This Agreement
shall be governed by the laws of the State of [State of Governing Law] without
regard to any rules of conflict or choice of laws which require the application
of laws of another jurisdiction and venue shall be in [County, City and State
of Venue].
Section 7.09 -- Notice: Notices shall be in
writing and shall be deemed delivered when delivered by commercial overnight
delivery service, by courier, Certified or Registered Mail with Return Receipt
Requested or by hand to the address set forth below for Rapid Digital LLC and to the address set forth on the Sales Agreement for Customer. Notice
shall be deemed given on the date of receipt - as evidenced in the case of
Certified or Registered Mail by Return Receipt.
Rapid Digital LLC
: Contact for Mailing Address
Section 7.10 -- Pronouns/Gender: Pronouns and nouns
shall refer to the masculine, feminine, neuter, singular or plural as the
context shall require. Section 7.11 -- Bankruptcy: If Rapid Digital LLC must institute, defend, appear or attend a bankruptcy proceeding as a
result of the filing of bankruptcy by Customer, fees and expenses shall be paid
by Customer. If Customer has a
bankruptcy proceeding filed against it, Rapid Digital LLC shall recover
attorney fees, expert witness fees, and other costs incurred by Rapid Digital LLC
in connection with the bankruptcy proceeding, hearing or trial. Section 7.12 -- Waiver: Any waiver of a provision
of this Agreement by Rapid Digital LLC shall not be binding unless such
waiver is in writing and signed by Rapid Digital LLC . Waiver by Rapid Digital LLC of any
breach of this Agreement shall not constitute waiver of any other breach. Any failure by Rapid Digital LLC to
enforce a provision of this Agreement shall not constitute a waiver or create
an estoppel from enforcing such provision. Section 7.13 -- Relationship of the Parties: It
is agreed that the relationship of Rapid Digital LLC and Customer is
primarily that of licensor and licensee or seller and customer
respectively. Nothing herein shall be
construed as creating a partnership, an employment relationship, or an agency
relationship between the parties, or as authorizing either party to act as
agent for the other. Each party shall
maintain its separate identity. Section 7.14 --
Arbitration: Any controversy or claim arising out of or
relating to this Agreement, or breach thereof, shall be settled by arbitration
in accordance with the Arbitration Rules of MyTechnologyLawyer.com in Section 7.15 -- Assurances: Each party hereby
represents and warrants that all representations, warranties, recitals,
statements and information provided to the other under this Agreement are true,
correct and accurate as of the Effective Date to the best of their knowledge. Section 7.16 -- Litigation Expense: In
the event of litigation or arbitration arising out of this Agreement, each
party shall pay its own costs and expenses of litigation or arbitration
(excluding fees and expenses of arbitrators and administrative fees and
expenses of arbitration). Section 7.17 -- Equitable Remedies: The parties hereby acknowledge that damages
at law may be an inadequate remedy to Rapid Digital LLC . Rapid Digital LLC shall have the right
of specific performance, injunction or other equitable remedy in the event of a
breach or threatened breach of this Agreement by Customer.