HomeMy Public PortalAbout2018.11.08 ESLA - Archive Social - Fully Executed ENTERPRISE SOFTWARE LICENSE AGREEMENT
This E terprise Software License Agreement (this"Agreement") is effective this
day of , 20/ the "Effective Date"), by and between ArchiveSocial,
Inc. a North Carolina corporation whose principal place of business is located at 212 W
Main St, Ste 500, Durham, NC 27701 with mailing address of P.O. Box 3330,Durham,
NC 27702-3330 ("Licensor") and the City of McCall, a government entity whose
principal place of business is located at 216 East Park St., McCall, ID 83638
("Licensee"). Licensee and Licensor may hereinafter jointly be referred to as the
"parties."
WHEREAS, Licensor has developed and licenses proprietary online software that
assists in capturing and archiving records of online social media communications
(including all updates,upgrades,modifications and improvements thereto generally made
available by Licensor to other similar commercial licensees, the"Software") and related
documentation delivered or provided to Licensee (the"Documentation"and, along with
the Software, the "Service"), all as more fully described and accessed at
http://archivesocial.com/(the"Website"); and
WHEREAS, Licensee would like to license such software for the limited and
express purposes and term set forth in this Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged,the parties agree as follows:
1. LICENSE.
(a) General. On the terms and subject to the conditions of this Agreement,
including the payment of all the fees and charges required hereunder, Licensor grants to
Licensee, and Licensee accepts, a non-exclusive, limited, nontransferable, license
(without the right to sublicense) to access and use the Service, including the Software,
solely in the form provided by Licensor through the Website, for any purpose not
prohibited by law or by the terms and conditions of this Agreement(the"License"). The
License and rights granted to Licensee herein terminate upon the termination or
expiration of this Agreement as set forth herein.
(b) Restrictions on Use. Licensee covenants and agrees that it shall not, and
shall cause its affiliates, owners, members, managers, directors, employees, agents,
contractors or other third parties who use the Website and/or the Service on behalf of, at
the direction of or for the benefit of Licensee (collectively, Licensee's
"Representatives") to not, (i) sell, license (or sublicense), lease,assign,transfer,pledge,
or share (including as a time share, service bureau or otherwise)any of Licensee's rights
under, in or to the License and/or the Service with or to any third party; (ii) modify,
disassemble, decompile, reverse engineer, revise or enhance all or any party of the
Website, the Services or the Software or create any derivative works or otherwise merge
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or utilize all or any part of the foregoing with or into other computer programs,website,
service or other materials or attempt to discover all or any part of the Website's, the
Service's or the Software's source code; (iii) use the Website or the Service to access or
use any content, information or material to which such person or entity does not have the
necessary right or license, or otherwise knowingly violate, breach or infringe the
intellectual property, contractual or other rights of any third party; or (iv) knowingly
violate any applicable law, regulation, ordinance, contract, order or other agreement that
is binding on such person or entity's use of the Website or the Service.
(c) Reservation of Rights. Nothing herein shall be construed to convey any
ownership or proprietary right or interest in the Website, Service, Software or
Documentation or any other information or materials provided by Licensor to Licensee in
connection with the Service, or any portion or copy thereof, to Licensee or any of its
Representatives. As between the parties hereto, all intellectual property and proprietary
rights in the Website, Service, Software and the Documentation shall remain the sole and
exclusive property of Licensor. All inventions (including,without limitation, discoveries,
concepts, ideas, know-how, improvements, derivative works and feedback, whether or
not constituting protectable intellectual property and whether or not reduced to practice)
arising out of Licensee's use of the Website, Service or Software shall be and remain the
sole property of Licensor and shall be subject to the terms of this Agreement.
Accordingly, Licensee hereby covenants and agrees that it will assign and will cause its
Representatives to assign, and upon the authorship, development or creation of any such
invention expressly and automatically does assign, all right, title and interest to any such
invention to Licensor. Licensor reserves all rights not expressly granted to Licensee in
this Agreement.
2. SUPPORT AND SERVICE. Licensor shall provide commercially reasonable
support in connection with Licensee's use of the Service including, without limitation,
providing (i) initial deployment and integration support as mutually agreed by the parties
and (ii) phone and email access for Licensor inquiries pertaining to the Website, Service
or Software during standard business hours (9:00am EST to 5:00pm EST, M-F except
holidays) and responses to such inquiries within a commercially reasonable time period
depending on the urgency or severity of the specific problem or request. Licensee and
Licensor shall each provide a designated point of contact (i.e., a single person or small
team of people) for all support and service inquiries related to Licensee's use of the
Website, Service and/or Software and Licensor shall have no obligation to respond to
support or service inquiries other than as submitted by such designated contact(s).
3. PAYMENTS. Licensee shall pay to Licensor the fees for the Software and for the
Services, as set forth on Exhibit A hereto. All fees pursuant to this Agreement shall be
invoiced by Licensor in advance. All fees shall be paid in U.S. dollars in immediately
available funds and shall be made payable to Licensor. For the avoidance of doubt,
Licensee's failure to make any payment within 30 days of its receipt of an undisputed
invoice from Licensor shall constitute a material breach of this Agreement.
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4. TERM AND TERMINATION.
(a) Term of Agreement. This Agreement is effective beginning on the
Effective Date and, unless this Agreement is earlier terminated in accordance with this
Section 4, shall continue for a period of 1 year, and Licensee may elect to renew this
Agreement thereafter for successive periods of 1 year (each, a "Renewal Term") by
providing written notice of renewal to Licensor at least 30 days prior to the scheduled
expiration of this Agreement. Licensor may increase the fees as provided in Exhibit A
upon commencement of a Renewal Term, provided that Licensor issues written notice at
least 30 days prior to the Renewal Term.
(b) Termination. In the event of a material breach by either party that is not
cured within 30 days of receipt of written notice thereof from the other party, the
non-breaching party may, by written notice to the breaching party, (i.) terminate this
Agreement; (ii) terminate or suspend Licensee's access to or use of the Website, Service
and/or Software; and/or (iii) pursue other legal and equitable rights and remedies to
which it may be entitled. Either party may terminate this Agreement immediately by
giving written notice to the other party if such other party institutes or has instituted
against it insolvency, receivership, or bankruptcy proceedings or any other proceedings
for the settlement of such party's debts, or makes an assignment for the benefit of its
creditors or commences dissolution proceedings. In addition, Licensor may terminate
this Agreement and the License hereunder immediately upon the breach by Licensee of
Section 1 hereof.
(c) Effect of Termination. Except as set forth in this Agreement, in the event
of termination or expiration of this Agreement, the rights and obligations hereunder or
thereunder, as applicable, shall terminate immediately; provided, however, that any
payment or other obligation that has accrued as of such termination or expiration date
shall survive such termination or expiration; provided, further, that in the event of the
termination or expiration of this Agreement the rights and the obligations of the parties
set forth in Sections 1(c) (Reservation of Rights), 5(d) (Service Disclaimer),?
(Confidentiality), 11 (Limitation of Liability), 13 (Entire Agreement) and 15 (Additional
Terms) of this Agreement, along with any other provision of this Agreement which is
required to enforce the parties' rights and obligations hereunder or by its terms continues
after the termination of this Agreement, shall survive the termination or expiration of this
Agreement and shall continue in effect as described therein.
(d) Return and Retention of Archived Content.At any time during the term of
the Agreement, Licensee may export the Archived Content via the administrative panel in
the Software. In addition, following the termination or expiration of this Agreement and
Licensee's written request within 30 days thereof, Licensor shall, within 30 days of its
receipt of such request and in a commercially reasonable format determined by Licensor,
provide Licensee with a copy of the data transmitted to and through supported social
media websites by Licensee to Licensor in connection with its use of the Service, as
collected, modified and archived by Licensor in connection with its provision of the
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Service (collectively, the "Archived Content"). Thereafter,ArchiveSocial will allow 30
days for Licensee to retrieve the Archived Content. Upon expiration of such 30-day
retrieval period, Licensor shall delete all such Archived Content and it is Licensee's sole
responsibility to seek another source for backing up or archiving such Archived Content
and/or related data or content. LICENSEE ACKNOWLEDGES AND AGREES THAT,
EXCEPT AS EXPRESSLY SET FORTH HEREIN, LICENSOR SHALL HAVE NO
OBLIGATIONS WITH RESPECT TO ANY ARCHIVED CONTENT, INCLUDING
THE MAINTENANCE OR PRESERVATION THEREOF, AND LICENSOR SHALL
NOT BE LIABLE FOR ANY DISRUPTION OR TERMINATION OF LICENSEE'S
OR ITS REPRESENTATIVES' ACCESS TO OR USE OF THE WEBSITE, SERVICE,
SOFTWARE, DOCUMENTATION AND/OR ARCHIVED CONTENT.
5. DESCRIPTION OF SERVICE; ARCHIVING AND ARCHIVED
CONTENT
(a) Archived Content License. Licensee hereby grants Licensor a limited,
worldwide, royalty-free, perpetual and irrevocable license, with right to sublicense, to
use, reproduce, copy, access, view, modify, edit, perform, display, prepare derivative
works of, reformat, translate, distribute and transfer Licensee's Archived Content, solely
and to the limited extent necessary to perform Licensor's obligations hereunder and to
provide Licensee with the Services including, without limitation, to disclose such
Archived Content to the applicable Supported Site as necessary to comply with
Licensor's or Licensee's terms and conditions of using such Supported Site.
(b) Supported Sites and Permitted Accounts. In addition to the license granted
in Section 5(a), in order for Licensor to provide the Service and to capture and to
maintain Archived Content for Licensee, Licensee must provide Licensor with certain
information with respect to any social media account through a website, platform or
service that Licensor supports (a "Supported Site") and that Licensee would like to be
included as part of Licensee's Archived Content. Licensee represents, warrants,
covenants and agrees that Licensee has not, and that Licensee will not,provide Licensor
with any Permitted Accounts (as defined below) information or any other information in
connection with any user account for a Supported Site or other social media site in
connection with Licensee's use of the Service and Licensor's archival of any Archived
Content other than with respect to user accounts for which (i) Licensee or a
Representative of Licensee is the actual owner or (ii) Licensee has been explicitly
authorized to provide such access (collectively, "Permitted Accounts").
(c) Limitations on Licensor's ability to provide the Service and maintain
Archived Content. In order for Licensor to provide the Service and to capture and to
maintain Archived Content for Licensee, Licensor relies on Licensee and on the owners
and operators of the Supported Sites to provide Licensor with access to the content, data
and/or information Licensee transmits to and through such Supported Sites, typically
through one or more application programming interfaces or "APIs". For instance, if
Licensee changes any Permitted Accounts Information Licensee has provided to Licensor
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without, if necessary, first notifying Licensor as directed through the Website and/or
Service, or otherwise limits or revokes Licensor's ability to access any of Licensee's
Permitted Accounts, Licensor may be unable to continue to provide the Service as
intended, or at all. It is also possible that, without any notification to Licensee or
Licensor, one or more Supported Sites will (i)change their website or service, (ii)change
the APIs through which Licensor accesses such website and/or service, (iii) amend the
terms of use or other policies through which Licensee or Licensor use and access such
website and/or service, (iv) provide incomplete or inaccurate information through their
APIs or otherwise with respect to the content, data and/or information Licensee transmits
to and through such Supported Site, and/or (v)take other actions to restrict Licensee's or
Licensor's access to such website and/or service and the content, data and/or information
contained therein. Any of these events could disrupt Licensor's ability to provide the
Service as intended, or to provide the Service at all, including Licensor's ability to
capture or to maintain Licensee's Archived Content as described on the Website and
elsewhere. In addition, it is also possible that Licensor's ability to provide the Service or
to capture or to maintain Licensee's Archived Content could be temporarily disrupted due
to unanticipated or unplanned events, such as viruses, hacking or other security
vulnerabilities, the failure of equipment or services provided by Licensor or by third
parties or other events, including force majeure events.
(d) Service Disclaimer. WHILE LICENSOR WILL UNDERTAKE
COMMERCIALLY REASONABLE EFFORTS TO PROVIDE THE SERVICE
(INCLUDING WITH RESPECT TO ARCHIVED CONTENT) TO LICENSEE,
LICENSOR CANNOT AND DOES NOT REPRESENT, WARRANT OR
GUARANTEE THAT LICENSOR WILL BE ABLE TO DO SO IN FULL AT ALL
TIMES OR AT ANY PARTICULAR TIME, NOR DOES LICENSOR REPRESENT,
WARRANT OR GUARANTEE THAT LICENSOR WILL BE ABLE TO CAPTURE
FULL AND ACCURATE RECORDS OF LICENSEE'S ARCHIVED CONTENT AT
ALL TIMES OR AT ANY PARTICULAR TIME, NOR DOES LICENSOR
REPRESENT, WARRANT OR GUARANTEE THAT ANY WEBSITE, PLATFORM
OR SERVICE THAT IS CURRENTLY A SUPPORTED SITE WILL REMAIN A
SUPPORTED SITE. ACCORDINGLY, LICENSEE'S USE OF THE WEBSITE AND
THE SERVICE IS EXPRESSLY CONDITIONED ON LICENSEE'S
ACKNOWLEDGEMENT AND ACCEPTANCE OF THE LIMITATIONS SET FORTH
IN THIS SECTION 5 AND THE LIMITATION OF LIABILITY SET FORTH IN
SECTION 11 OF THIS AGREEMENT.
6. OWNERSHIP OF CONTENT. Licensor does not claim ownership of any
content belonging to Licensee, including any Archived Content, except as expressly
described in this Section with respect to Feedback; provided, however, that Licensee's
use of the Service is subject to Licensee's granting of the license to Licensee's Archived
Content set forth in Section 5(a), as well as any other reasonably necessary license to any
other content, in order for Licensor to perform Licensor's obligations hereunder and to
provide Licensee with the Service. Notwithstanding the foregoing, any comments,
feedback, ideas and/or reports about the Website or the Service that Licensee provides to
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Licensor, whether in written, electronic or any other form (collectively, "Feedback"),
shall be considered Licensor's proprietary and confidential information, and Licensee
hereby irrevocably automatically transfers and assigns to Licensor, immediately upon
creation, all of Licensee's right, title and interest in and to such Feedback, including all
intellectual property rights embodied in or arising in connection with such Feedback and
any other rights or claims that Licensee may have with respect to any such Feedback.
7. CONFIDENTIALITY. Subject to public record law, Licensee shall not
disclose, except in accordance with this Agreement, and shall take all necessary
precautions to protect the confidentiality of and to cause its Representatives not to
disclose and to protect the confidentiality of, any Confidential Information received from
Licensor or its affiliates, employees or other agents under this Agreement, including,
without limitation, requiring Licensee's Representatives or others with access to the
Confidential Information to be subject to confidentiality obligations similar in nature to
those imposed by this Agreement and limiting access to the Confidential Information to
Licensee's Representatives on a "need to know" basis. Any Confidential Information
may be used by Licensee only in connection with the License granted herein, unless
otherwise agreed by the parties in writing. For the purposes of this Agreement,
"Confidential Information" shall mean all business,technical, and financial information
provided by Licensor to Licensee, including, without limitation, the Software and all
accompanying Documentation and all proprietary information relating thereto.
Confidential Information shall not include any information which is: (i) at the time of its
disclosure previously known by Licensee, as demonstrated by Licensee's records; (ii) in
the public domain or becomes generally known or published through no fault of
Licensee; or (iii) lawfully disclosed to Licensee by a third party free to disclose such
information. The provisions under this Section 7 shall survive the expiration or
termination of this Agreement for any reason for a period of five years. Immediately
upon termination or expiration of this Agreement, Licensee agrees to return to Licensor
or to delete all Confidential Information provided to Licensee, including copies of any
software or documentation provided by Licensor to Licensee hereunder and, if requested
by Licensor, provide Licensor with a written notice certifying that it has complied with
the requirements of this sentence.
8. TRANSFERS. This Agreement, the License and all other rights, licenses,
remedies, obligations and liabilities granted hereunder to Licensee may not be transferred
or assigned to any other party without the express written consent of Licensor. Any
attempted assignment or transfer in violation of this provision shall be void.
9. MUTUAL REPRESENTATIONS AND WARRANTIES. Each party
represents and warrants that (i) it is duly incorporated, validly existing and in good
standing under the laws of its state of incorporation and has the full corporate power and
authority to execute, deliver and perform this Agreement; and (ii) this Agreement has
been duly and validly executed and constitutes the legal, valid and binding obligation of
such party, enforceable against such party in accordance with its terms.
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10. DISCLAIMER OF WARRANTY. EXCEPT AS EXPRESSLY SET FORTH
IN THIS AGREEMENT, LICENSOR MAKES NO REPRESENTATIONS OR
WARRANTIES WITH RESPECT TO THE WEBSITE, SERVICE AND/OR
SOFTWARE, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE
IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND
FITNESS FOR A PARTICULAR PURPOSE.
11. LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY THE
LAWS IN LICENSEE'S JURISDICTION, NEITHER PARTY OR ITS
REPRESENTATIVES SHALL BE LIABLE (i) FOR ANY SPECIAL, INDIRECT,
CONSEQUENTIAL, OR INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR
LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION AND
THE LIKE) ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT
OR LICENSEE'S USE OF THE WEBSITE, SERVICE AND/OR SOFTWARE, EVEN
IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES OR (ii) ANY DIRECT DAMAGES OR OTHER AMOUNT IN EXCESS
OF THE CUMULATIVE FEES ACTUALLY RECEIVED BY LICENSOR DURING
THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING
RISE TO SUCH LIABILITY.
12. INDEMNIFICATION.
(a) Third-Party Infringement Claims Licensor will defend at its expense or
settle any third-party claim against Licensee alleging that the Software or Service
provided under this Agreement infringe intellectual property rights. Licensor will pay
infringement claim defense costs, Licensor—negotiated settlement amounts, and damages
fmally awarded by a court. Licensor has no obligation for any claim of infringement
arising from Licensee's use of the Software and Services for purposes not contemplated
by this Agreement.
(b) Bodily Injury. Licensor will defend and indemnify Licensee and
employees, directors and agents against all damages for bodily injury, including death, or
damage to real or tangible personal property to the extent proximately caused by Licensor
in performance under this Agreement.
(c) Conditions. Licensor's indemnification obligations under this Section 12
are conditioned upon the Licensee (i) promptly notifying the Licensor of any claim in
writing; (ii) cooperating with Licensor in the defense of the claim; and (iii) granting the
Licensor sole control of the defense or settlement of the claim.
13. ENTIRE AGREEMENT. The parties agree that this Agreement is the complete
and exclusive statement of the agreement between Licensor and Licensee, which
supersedes any proposal, prior agreement, or license, oral or written, and any other
communications relating to the subject matter of this Agreement. If any term of this
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Agreement shall be found invalid, the term shall be modified or omitted to the extent
necessary, and the remainder of this Agreement shall continue in full effect.
14. INDEPENDENT CONTRACTOR. The parties are independent contractors and
nothing contained herein shall be construed to create any other relationship between the
parties. Nothing in this Agreement shall be construed to constitute either party as the
agent of the other party for any purpose whatsoever, and neither party shall bind or
attempt to bind the other party to any contract or the performance of any other obligation,
or represent to any third party that it has the right to enter into any binding obligation on
the other party's behalf. Furthermore,nothing in this Agreement shall be construed so as
to obligate either party to enter into a further agreement.
15. ADDITIONAL TERMS. The waiver by either party of a breach of any
provision of this Agreement shall not constitute or be construed as a waiver of any future
breach of any provision(s) of this Agreement. Neither party shall be liable for delays or
failures of performance resulting from causes beyond its reasonable control. The
invalidity or unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision. This Agreement may be executed in
several counterparts, each of which shall be deemed to be an original and all of which
shall constitute but one and the same instrument. All notices or other communications to
a party which are required or permitted pursuant to this Agreement shall be in writing to
the address set forth for such party in the introduction to this Agreement. Any such
notice shall be deemed sufficient if delivered personally or sent by registered or certified
mail, postage prepaid, return receipt requested, or if delivered by any other means upon
which the parties shall mutually agree. Any party may change the address to which
notice is to be given by notice given in the manner set forth above.
16. COUNTERPARTS. This Agreement may be executed by electronic signatures
or signatures delivered through electronic facsimile. The parties shall use commercially
reasonable efforts to deliver to each other a fully executed original following the initial
closure of the agreement through facsimile or electronic copies and/or signatures
[Signature Page Follows]
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IN WITNESS WHEREOF, authorized representatives of the parties hereto have
executed this Software License Agreement effective the day and year first above written.
LICENSOR:
ArchiveSocial,Inc.
By:
4 A
Name:
Title:
LICENSEE:
By: C , „4.4
Name: cto_R l e vvi (7)
Title: 11 A
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EXHIBIT A
Fees and Payments
1. Base Service Fee: Licensee shall pay an annual base service fee of $2,388 which
shall entitle Licensee to connect to the Service, social media accounts from one or more
social networking or social media websites, platforms or services supported as part of the
commercially available Service (each a"Supported Site")for which Licensor is either
(i)the actual owner or(ii) explicitly authorized to provide access to such social media
account(e.g., upon express authorization by Licensor's Representative).Each such social
media account shall be referred as a"Permitted Account". Licensee is entitled to archive
up to 1,000 new social media records per month, in aggregate,from across all Permitted
Accounts. For purposes of this Exhibit A, a"social media record"refers to any
individual posting sent or received by a Permitted Account, including comments, status
updates, and private messages. Large multimedia files, such as videos, are counted as
multiple records with each 10-megabyte segment of a multimedia file counted as a single
record.
2. Add-on Service Fees: If an add-on service is selected then Licensee shall pay the
corresponding add-on annual service fee which shall entitle License to access the service.
Selected:
(X) Add-on Service Annual
Fee
Risk Management&Analytics (RMA)Reporting&Alerting $
Public Access Open Archive Portal $
3. Service and Support: There is no additional charge for service and support as
provided in Section 2 of the Agreement.
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