The parties, Engrain Technology Inc. (“Engrain” “Licensor”) and Client (“Licensee”), agree as follows:
1. DEFINITIONS For purposes of this Agreement, the following terms shall have the meanings set forth:
A. Client Content means content or data specific to a property supplied by the Client (including the Client’s agents or assigns), including unit data, a site plan or image of a property map, marketing assets and design files.
B. Unit Map means a scalable vector graphic description of one or more units produced by Engrain. Unit Maps may be derived from multiple sources of data, including: Client Content, base site plans or designs provided by the Client.
C. Unique Embeddable Link means a SightMap link that is provided by Licensor to be used by Licensee that can access a Unit Map.
D. Engrain Products means a program or application developed by Engrain that can access Client Content and/or data.
E. Client Application Program means a website, application or portal that is used by the Licensee to accesses a Unit Map through a Unique Embeddable Link.
F. License Duration is the term of the License and is defined for each purchased product in a Purchase Authorization.
G. User is authorized by Client to use Client website, software application, or application program.
H. Application Interface Program (API) Engrain’s API provides metadata associated with a Unit Map and a URL associated with a Unit Map file.
I. Software Development Kit (SDK) Engrain’s SDK provides tools and programming for the purpose of rendering Unit Maps on Customer’s website, software application, or application program.
2. LICENSE GRANT AND FEES
A. License Grant for Engrain Products. During the License Duration for each Engrain Product identified in a Purchase Authorization, Licensor hereby grants to Licensee, and Licensee accepts, a non-exclusive, nontransferable, revocable, worldwide, royalty-free, limited license to access one or more of the products developed and maintained by Engrain consisting of one or more of the following:
i. Unit Map and related program content associated therewith using the SightMap Products supplied by Licensor.
ii. Unit Map and Application Programming Interface (API) supplied by Licensor. This license enables licensee to provide Users with data provided via the API via Licensee’s website, software application, or application program for the purpose of returning metadata associated with a Unit Map and a URL associated with a Unit Map file. Licensee shall not copy, distribute or allow access to the API by anyone other than authorized employees of Licensee. Engrain shall provide Licensee access to the API via an access key and a URL.
iii. Unit Map and related program content associated therewith using the TouchTour Application Programs supplied by Licensor.
iv. Unit Map and related program content associated therewith using the Hosted Applications supplied by Licensor.
v. Software Development Kit (SDK) tools and programming for the purpose of rendering Unit Maps on Licensee’s website, software application, or application program. Licensee shall not copy, distribute or allow access to the SDK tools and programming by anyone other than authorized employees of Licensee. Engrain shall provide Licensee access to the SDK via granting access to the Unit Map Developer Portal.
B. Expiration of License Duration. After expiration of the License Duration for each respective Engrain Product identified in a Purchase Authorization the Licensor agrees to extend the license grant to the Licensee for an additional term so long as the Licensee continues to pay the license fees at the agreed upon rate, or until either Licensor or Licensee gives thirty (30) days notice to the other party of its desire to terminate License.
C. License Fees. Licensee shall pay Licensor license fees as specified in the Purchase Authorization or as otherwise mutually agreed upon in writing, during the Term of this Agreement for each Engrain Product. These license fees will be billed upon Purchase Authorization execution and due within 30 days unless otherwise specified on the Purchase Authorization.
D. License Grant for Syndication. Licensee shall grant Licensor the right to provide the Unit Map including Client Content to a third party for syndicated distribution.
E. Taxes and Fees. Fees on the Purchase Authorization do not include taxes, levies, duties or similar governmental assessments of any nature, including, for example sales, use or withholding taxes (“Taxes”). Client will pay the appropriate governmental agency any Taxes or fees imposed in connection with the charges for a Purchase Authorization whenever such Taxes or fees become applicable. If Engrain has the legal obligation to pay or collect Taxes for which Client is responsible, Engrain will invoice and collect all such Taxes unless Client provides Engrain with a valid tax exemption certificate authorized by the appropriate taxing authority.
3. DELIVERY OF CLIENT CONTENT AND ACCEPTANCE OF PRODUCTS
A. Delivery of Client Content. For each new property associated with an Engrain Product listed on the Purchase Authorization, the Licensee shall deliver to Licensor the associated Client Content that includes, at a minimum, a site plan showing all current units with each individual unit clearly delineated and numbered and any other Client Content required for the generation of the Engrain Product.
B. One-time Fees. Any applicable one-time fees for added Engrain Product under this Agreement shall be specified and agreed to by the parties in the Purchase Authorization. These one-time fees will be billed upon Purchase Authorization execution and due within 30 days unless otherwise specified on the Purchase Authorization.
C. Generation of Engrain Products. Upon receipt of the Client Content for each Engrain Product, Licensor agrees to generate the associated Engrain Product(s) and agrees to deliver an evaluation link and/or evaluation software to the Licensee for the purposes of Licensee’s examination and/or evaluation of the Engrain Products. Licensee will have fourteen (14) calendar days to deliver written notice to Licensor of Licensee’s acceptance or rejection of the Engrain Products. Licensee’s failure to provide rejection and/or a written request for changes within the specified time period shall be deemed as Licensee’s acceptance of the Engrain Products. All Engrain Products are limited to two (2) rounds of Licensee requested revisions; all further revisions are at the Licensor’s option and may be supported by change order as described in Section 3.E (“Revision of Engrain Products Before Acceptance”).
D. Rejection and Revision of Engrain Products. If Licensee rejects the Engrain Products and delivers a written request for changes within the time period specified in Section 3.C (“Generation of Engrain Products”), Licensor will use commercially reasonable efforts to make the requested changes and will supply a revised version of the Engrain Product(s) to the Licensee for the purposes of Licensee’s examination and/or evaluation. All Engrain Products are limited to two (2) rounds of Licensee requested revisions; all further revisions are at the Licensor’s option and may be supported by change order as described in Section 3.E (“Revision of Engrain Products Before Acceptance”).
E. Revision of Engrain Products Before Acceptance. After Licensor completes the two (2) rounds of Licensee requested changes, Licensor will determine if fees are required to execute additional changes. If fees are required Licensor will prepare and send Licensee a change order for Licensee’s requested changes. The change order will be billed at Engrain’s standard engineering rate of $150/hour for engineering changes. The change order will be a separate agreement that will not be binding until signed by both parties. During the License Duration, Engrain Products are covered by a Software Warranty that covers the correction of programming bugs and errors as further defined in Section 7. B (“Software Warranty”).
F. Revision of Engrain Products After Acceptance. After Licensee’s acceptance of the Engrain Products, whether by written notice or by failure to respond within the time period specified in Section 3. C (“Generation of Engrain Products”), if Licensee requires changes to the Product, Licensee shall provide Licensor a written request for the changes. In response, Licensor will determine if fees are required to execute the changes. If fees are required Licensor will prepare and send Licensee a change order for Licensee’s requested changes. The change order will be billed at Engrain’s standard engineering rate of $150/hour for engineering changes and an hourly rate of $75/hour for design and content management changes. The change order will be a separate agreement that will not be binding until signed by both parties.
4. TECHNICAL SUPPORT AND HOSTING
A. Engrain Support and Training. Licensor agrees to provide technical and content support to Licensee during the license term through a dedicated support team. Licensee will be provided virtual training at the launch of product(s) as well as on demand future virtual training. On-site training may be provided for an additional cost. The account and support teams are available during standard business hours 9 AM to 5 PM (Mountain Time), five (5) days per week, excluding certain holidays via support@engrain.com or 877.313.3743, ext. 4. Emergency email support is available via support@engrain.com seven (7) days per week during standard business hours.
B. Updates to Unit Map. Licensor may make improvements and/or changes in format or content of the Unit Map at any time without prior notice to Licensee. In the event that such updates result in incompatibility with the Client Application Program, Licensor shall provide support to Licensee using Licensor’s standard support team described in Section 4.A (“Engrain Support”).
C. Third-Party Integrations. Licensee is responsible for maintaining access to all third-party data, including maintaining appropriate credentials therefore. Licensor has no responsibility for the validity of data from third-parties.
D. Compatibility with Client Application Program(s). With regard to SightMap products, Licensee is responsible for integrating the one or more Unique Embeddable Links within the Client Application Program(s) and for resolving incompatibility issues between the Unit Map and the Client Application Program(s). Licensor shall provide support to Licensee to remedy any incompatibility issues through Licensor’s dedicated support team described in Section 4.A (“Engrain Support”).
E. Changes to Client Application Program(s). During the Term of this agreement, Licensor is not responsible for maintaining compatibility of the Unit Map or SightMap Products with the Client Application Program(s) and Licensee understands that any updates and/or changes to the Client Application Program(s), including data migration and changing network configurations, may result in failure of the Client Application Program(s) to access and/or properly display the Unit Map or SightMap. Licensor agrees to provide support to remedy the incompatibility through Licensor’s dedicated support team described in Section 4.A (“Engrain Support”).
F. Hosting Server. During the Term of this Agreement, Licensor agrees to provide and maintain a hosting server that will store and enable access to the Engrain Products, the Unit Map and the corresponding content through the one or more licensed Engrain Products. Licensor will use commercially reasonable efforts to maintain continuous operation of the Hosting Server. Licensee agrees to not hold Licensor liable for any damages as a result of the hosting server being unavailable, as described in more detail in Section 7 (“Limitation of Liability, Indemnification and Warranties”). Licensor created websites are highly integrated and utilize a proprietary WordPress plugin, therefore must be hosted by Licensor unless otherwise specified.
G. Caching. Data received from the API may be stored for up to twenty four (24) hours in order to improve performance of the Licensee’s service and/or to reorganize the data for increased performance when querying the data for the Licensee’s use case. Most objects received from the API will contain an identifier, which are referred to as Resource IDs. Resource IDs may be stored indefinitely in order to associate resources to Licensee’s data and improve performance of storing data from the API. All other data will not be stored more than twenty four (24) hours unless agreed upon by both Engrain and Licensee as part of this agreement.
5. PROPRIETARY RIGHTS
A. Ownership. All right, title and interest in and to the Unit Map (including any update, modification, enhancement or alteration thereof) is and shall be vested solely in the Licensor. Licensee shall have no rights in the Unit Map other than that of a licensee subject to the terms hereof, and any rights not expressly granted to Licensee hereunder are reserved exclusively for Licensor. Additionally, the API, Unit Maps and all associated software, workflow processes, user interface, designs, know-how, analytics, and third party technology and other technologies provided by Engrain are the proprietary property of Engrain, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with Engrain unless otherwise granted in this Agreement. Engrain reserves all rights unless expressly granted in this Agreement.
B. Client Content. Licensee shall retain complete ownership of the Client Content and grants Licensor the worldwide, revocable, royalty-free right to use, publicly display, and distribute the Client Content.
C. Limited Rights. Rights granted herein are limited and are to be strictly construed. All rights not specifically granted herein are reserved by Licensor.
D. Licensee Restrictions. Licensee shall use reasonable means to ensure that each User and Licensee employee does not:
i. create derivative works of, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction) or attempt to derive the source code of the SDK, API or the Unit Maps or Engrain Products;
ii. remove or modify any proprietary marking or restrictive legends in the SDK, API, Unit Maps or Engrain Products;
iii. use the SDK, API, Unit Maps or Engrain Products to store or transmit infringing, unsolicited marketing emails, libelous, obscene, deceptive, defamatory, pornographic, racist, sexual, hateful, or otherwise objectionable (except as necessary for Licensee’s instructional purposes, but in all cases in compliance with applicable law and regulation), unlawful or tortious material, or any other material in violation of a third-party right;
iv. use the SDK, API, Unit Maps or Engrain Products to harm or impersonate any person, or for any commercial purpose (including accessing the Service to build a competitive service or product, or copy any feature, function or graphic for competitive purposes);
v. interfere with or disrupt the integrity or performance of the SDK, API, Unit Maps or Engrain Products; orvi. attempt to gain unauthorized access to the SDK, API, Unit Maps or the Engrain Products or their related systems or networks.
E. Licensee Responsibilities. Licensee shall have the sole responsibility for the following:
i. controlling all activities arising from Licensee’s administrator and employee accounts for the SDK and API;
ii. maintaining Licensee and Administrator password security and confidentiality;
iii. transmitting prompt notification to Engrain (within 24-hours) of any known or suspected unauthorized access; andiv. ensuring the SDK, API, Unit Maps and Engrain Products are used in accordance with the purposes as defined herein as well as all applicable laws and regulations.
F. Trademark License. Engrain Products may include Engrain’s Licensed Marks, Licensed Domain Names and/or Licensed Trade Names. Licensor hereby grants Licensee the right to display Licensor’s Licensed Marks, Licensed Domain Names and Licensed Trade Names only in their connection with and in direct association with the Unit Map.
G. No Implied License. Except as specifically provided in this Agreement, nothing herein shall be interpreted as granting any license, express or implied, under Licensor’s patents, trademarks, copyrights or trade secrets.
6. TERM AND TERMINATION
A. Term. The term shall begin sixty (60) days from the date of generation of the initial license invoice and shall continue until the License Durations of all Engrain Products licensed under this Agreement have expired or have been terminated (the “Term”). Initial license invoices are generated and distributed within five (5) days of contract execution. Upon termination, Licensee agrees to immediately terminate access to and the use of the Unique Embeddable Link by the Licensee and any third parties. Regardless of how this Agreement is terminated, Licensor shall retain complete ownership of and rights in the Unit Map.
B. Termination. Either party may terminate this Agreement for any material breach of this Agreement by the other party upon thirty (30) days’ written notice. Such written notice shall identify with particularity the alleged breach(es) of such party and request cure thereof, and if such party shall cure the breach within such thirty (30) day period, the notice shall be void. In the case of such termination, Licensor shall refund a prorated portion of the license fees paid by Licensee for the current License Term, and Licensor shall immediately terminate Licensee’s and any third party’s access to the Unique Embeddable Link. After the Licensee has accepted the Engrain Products (whether by written acceptance or by Licensee’s failure to provide an acceptance, rejection and/or a written request for changes within the specified time period) and before the Term expires, License, hardware and one-time fees are not refundable. In the event of a property disposition, pre-paid license fees for any remaining License Duration may be credited to future license billing under Licensee’s account. If any fees were waived and the agreed-upon license fees have not been paid in full, the amount of waived fees will be deducted from the credited amount.
C. Termination for Convenience. Either party may terminate this Agreement for any reason upon thirty (30) days' written notice. In the case of such termination, license and implementation fees paid prior to such termination are nonrefundable.
D. Transition Services. Following termination of this Agreement, Engrain will provide Licensee with commercially reasonable assistance in the orderly transfer of Licensee’s data, systems and related operations to Licensee or Licensee’s designated third-party service provider.
E. Survival. Any terms and conditions of this Agreement which by their nature extend beyond the term or expiration of this Agreement shall survive the termination or expiration of this Agreement, including, without limitation, the obligations set forth in Paragraphs 5A (“Unit Map”), 5B (“Client Content”), 7 (“Limitation of Liability, Indemnification and Warranties”) and 8 (“General”).
7. LIMITATION OF LIABILITY, INDEMNIFICATION AND WARRANTIES
A. Limitation of Liability. Licensor shall not be liable for any incidental, special, consequential or indirect damages of any kind (including damages for interruption of business, procurement of substitute goods, loss of profits, or the like) regardless of the form of action whether in contact, tort (including negligence), strict product liability or any other legal or equitable theory even if Licensor has been advised of the possibility of such damages. In no event will Licensor’s aggregate cumulative liability for any claims arising out of or related to this agreement exceed the amount Licensee actually paid Licensor under this agreement (if any), except as otherwise specified in this agreement.
B. Software Warranty. During the License Duration, all Engrain Products are covered by a Software Warranty that covers the correction of software bugs and/or programming errors. For the purpose of this Agreement, a “bug” shall be defined as anything that causes a script error or causes the Engrain Product to behave in a manner not intended including freezing, crashing, or displaying of incorrect content. The Software Warranty does not cover the addition of features or content updates.
C. Hosted Application Warranty. During the License Duration, all hosted applications are covered by a warranty that covers the correction of bugs and/or programming errors. The Hosted Application Warranty does not cover the addition of features or content updates.
D. Disclaimer of Warranties. The Unit Map is provided “AS IS” and is subject only to the Software Warranty in Section 7.B (“Software Warranty”), all other warranties, whether express, implied or statutory, including but not limited to implied warranties of merchantability, fitness for a particular purpose, noninfringement of third party rights or any warranties that might arise from a course of dealing, usage or trade practice are hereby disclaimed. Licensee accepts all risks and liabilities associated with its use of the Unit Map.
E. Indemnification. Licensor shall defend, indemnify and hold Licensee harmless, at Licensor’s expense, for any claim, suit or proceeding brought against Licensee claiming that Licensee’s proper use of the licensed products infringe any U.S. Patent, copyright, trade secret or other proprietary rights of others. To qualify for such a defense and payment Licensee must (i) give Licensor prompt written notice of any such claim and (ii) allow Licensor to control and fully cooperate with Licensee in the defense and all related settlement negotiations. Licensor shall pay to Licensee all damages awarded to third parties which Licensee is obligated to pay but shall not be responsible for any compromise made without its consent.
F. Result of Bargaining. The warranty disclaimer and limited liability are fundamental elements of the basis of the bargain between Licensor and Licensee. Licensor would not be able to provide the Unit Map without such limitations.
G. Third Party Links/Service Disclaimer. The Service may link to third party web sites (including without limitation, links provided by Users of the Service) or allow access to third-party services. Such sites and services are not under the control of Engrain, and Engrain is not responsible for the content or any link on such sites or for the temporary or permanent unavailability of such third party sites or services.
8. GENERAL
A. Governing Law. This Agreement shall be construed in accordance with the laws of the State of Colorado as they are applied to agreements between Colorado residents entered into and to be performed entirely within Colorado. Any legal proceedings arising out of or relating to this Agreement will be governed by Colorado law, excluding choice of law rules, and shall be venued in the state or federal courts located within Arapahoe County or the Tenth Circuit Judicial District in Colorado, respectively. Licensee agrees to submit to the jurisdiction of such courts for purposes of resolving such disputes. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed.
B. Subcontracting and Assignment. Licensee shall not assign any of its rights nor delegate any of its obligations under this Agreement to any third party without the express written consent of the Licensor, or as otherwise agreed herein. In the event of a change of ownership of the Licensee, any remaining License Duration may be assigned to the successor in interest if so directed by Licensee. In such case, successor must agree to terms of service and any transfer fees required, after which subsequent invoices for the license term extension will be sent to the successor and shall be payable within thirty (30) days after invoice date. If any invoice is not paid within thirty (30) days, Licensor may, without waiving any claim or right against the Licensee or the successor in interest, and without liability whatsoever to the Licensee or the successor in interest, terminate the License Grant. Licensor shall be able to assign any rights and/or obligations upon providing Licensee written notice of the assignment. If the license is not assigned to the successor in interest by Licensee, said successor in interest will be required to initiate license with Licensor independently.
C. Notices. Any notice required for or permitted by this Agreement shall be in writing and shall be delivered by certified or registered mail, return receipt requested, upon verification of receipt, to 5660 Greenwood Plaza Blvd. ,Suite 350, Greenwood Village, CO 80111.
D. Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, riots, insurrection, fires, flood, storm, explosions, war, governmental action, labor conditions, earthquakes, material shortages, or any other cause which is beyond the reasonable control of such party.
E. Waiver. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
F. Severability. In the event of invalidity of any provision of this Agreement, the parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement. It is expressly understood and agreed that each and every provision of this agreement which provides for a limitation of liability, disclaimer of warranties or exclusion of damages, is intended by the parties to be severable and independent of any other provision and to be enforced as such.
G. Entire Agreement. The provisions of this Agreement constitute the entire agreement between the parties and supersede all prior agreements or representations, oral or written, relating to the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, any prior agreements. In the event of a conflict between this Agreement (or any portion hereof) and any other agreement now existing or hereafter entered into between Engrain Technology Inc. and Client/Licensee and/or any of its affiliated, related, parent or subsidiary companies, related to the subject matter of this Agreement or otherwise entered into as a result of this Agreement, the terms of this Agreement shall prevail.
H. Order of Precedence. If there is an inconsistency between this Agreement and a subsequent order, this Agreement prevails.
I. Mutual Confidentiality.
a. Definition of Confidential Information. Confidential Information means all confidential information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information).
b. Protection of Confidential Information. The Recipient will protect the Confidential Information using the same degree of care that it uses to protect the confidentiality of its own Confidential Information (but in no event less than reasonable care) unless otherwise provided herein. The Recipient shall not disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this Agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this Agreement and who have signed confidentiality Agreements with Recipient no less restrictive than the confidentiality terms of this Agreement.
c. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, (iv) was independently developed by the Recipient without use or access to the Confidential Information, or (v) is provided to Engrain for use with or display in Engrain’s products. Additionally, in no event will the use or display of information provided by Licensee to Engrain for the purpose of delivering the services contemplated under this Agreement be in violation of the confidentiality provisions herein. Notwithstanding any of the foregoing, the Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.