Electronic Commerce Software Subscription Agreement
This Electronic Commerce Software Subscription Agreement (the “Agreement”, with other capitalized terms herein defined) is made and entered into by and between Resource & Financial Management Systems, Inc., an Alabama business corporation (“RFMS”) and (“Company”) for the purpose of facilitating electronic commerce activity between Company and its product suppliers or manufacturers effective as of the execution date noted below. By installing or using the software, Company acknowledges that it has read, understands, and is agreeing to become bound by the terms of this Agreement.
W I T N E S S E T H T H A T:
WHEREAS, RFMS is the owner, programmer, publisher and licensor of certain computer software used in the floor covering industry; and
WHEREAS, RFMS owns, programs, publishes and licenses certain software known as the RFMS Electronic Commerce Software designed to facilitate electronic commerce between floor covering retailers and their participating suppliers and manufacturers including the electronic transmission of product catalogs, advance ship notices, purchase orders and invoices (the “Software”); and
WHEREAS, the Company desires to utilize the Software;
THE PREMISES CONSIDERED, and in further consideration of the mutual promises and undertakings set forth in this Agreement, the sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Software Licensing
1.1. License Grant. RFMS grants Company an individual, non-exclusive and non-transferable license to use RFMS’ Software. Company shall not sublicense, rent, time-share, lease, grant a security interest in, or otherwise grant others rights to its license or the Software. Company shall not make access to the Software available to others via a service bureau, application service provider, or similar method. Company shall not download or copy either object or source code of the Software for storage on any media. This license is coterminous with the remainder of this Agreement. Using this Software in any other manner is a violation of this Agreement and of RFMS’ copyright ownership.
1.2. Supporting Documentation. Solely with respect to the written documentation included and provided (if any) as part of the Software (e.g. the user guide), Company may make an unlimited number of copies provided that such copies shall be used only for internal purposes and are not republished, copied or distributed to anyone not employed by the Company.
1.3. Intellectual Property. RFMS holds exclusive ownership of the Software and all intellectual property embodied therein, including copyrights, patents, trademarks and valuable trade secrets incorporated in the Software’s design and coding methodology. The Software is protected by the United States copyright and trademark laws and international treaty provisions. This Agreement provides the Company with only a non- exclusive and non-transferable license, and does not grant any intellectual property rights in the Software. The Agreement does not grant the Company any rights in connection with any trademarks or service marks of RFMS.
1.4. Reverse Engineering. Company agrees that it will not attempt to: (i) modify or translate the Software; (ii) decompile, or disassemble the Software, (iii) create derivative works based the Software; (iv) merge the Software with another product; (v) copy the Software; (vi) attempt to discover the source code of the software (vii) or remove or obscure any proprietary rights, notices, or labels on the Software.
1.5. End-User Licenses. Company agrees to comply with the terms and conditions of all end user license agreements accompanying any software or plug-ins to such software provided by RFMS.
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1.6. Use as Agreement to License. By using this Software, you acknowledge that you have read, understand, and are agreeing to become bound by the terms of this Agreement, which includes the software license, limited warranty and exclusion of liability. If Company does not agree with these terms, it must terminate its subscription and forego use of the Internet Service.
2. Subscription Fees
The Company’s subscription fee is based on the options selected by the Company and its RFMS Business Management System™ size (i.e. – number of users and/or nodes) as designated by Company and communicated to RFMS from time to time reflected on the most recently dated Electronic Commerce Software Subscription Order Form attached hereto and incorporated by this reference. As users and/or nodes are added to Company’s existing RFMS Business Management System, the subscription fee will increase as noted in the Electronic Commerce Software Subscription Order Form. The subscription fee increase created by the addition of users will be prorated to the next. Subscription fee anniversary date. RFMS shall have the right to re-evaluate and adjust the subscription fees once during each term of this Agreement following the initial term.
3. Payment Method
Company agrees to pay a monthly subscription fee at the rate specified in the Order Form or as adjusted from time to time. Such fees shall be paid via Electronic Funds Transfer (EFT) from one of Company’s bank accounts directly to an RFMS bank account. Company shall designate and provide RFMS with a valid bank account number, and RFMS shall automatically draft all amounts due from Company directly from the account designated. Company authorizes RFMS to make such drafts and shall maintain a balance sufficient to pay fees to RFMS when due. RFMS shall not be obligated to inquire as to the sufficiency of available funds prior to initiating any debit charge, and Company releases and hold RFMS harmless from any costs, fees, expenses or damages resulting from any overdraft or like occurrence. Should Company close the designated account or desire to designate a different account, Company shall notify RFMS and provide a new valid account number. In the event an attempted electronic funds transfer fails, Company shall have ten (10) days after the date of the failure to cure by submitting payment in full. Company shall then investigate the cause of the failure and cause the problem associated with the failure to be cured or provide RFMS with an alternate, valid bank account number.
Subject to the Company’s approval, RFMS shall also utilize electronic funds transfer to pay all RFMS Business Management System software maintenance and support fees and any other fees or payments to RFMS when due. Effective on the next RFMS Business Management System software license renewal date for Company following the date of this Agreement, the RFMS Business Management System software maintenance and support fees will be divided into equal monthly payments and paid by Company to RFMS via electronic funds transfer from the Company’s designated account.
4. Training Support
The subscription fee in this Agreement includes initial start-up configuration testing for products and specialized off- site support desk help, but does not include any training of Company’s employees required to process electronic purchase orders and invoices. If Company desires such training, it may request RFMS to provide such training, and, if RFMS so agrees to provide the training requested, the training will be billed separately based on RFMS’ then current consulting rates plus actual travel expenses.
5. Limitation of Liability; Disclaimer of Warranties
RFMS SPECIFICALLY DISCLAIMS ANY EXPRESS WARRANTIES, THE IMPLIED WARRANTIES OF NON- INTERFERENCE, NON-INFRINGEMENT, PERFORMANCE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE. THERE IS NO WARRANTY OR GUARANTY THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, OR VIRUS-FREE, OR THAT THE SOFTWARE WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE,
SPEED, OR QUALITY. No action under this Agreement may be commenced after one (1) year following the expiration date of the termination of this Agreement. If implied warranties may not be disclaimed under applicable law, then ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE EFFECTIVE DATE OF THIS AGREEMENT. SOME STATES DO NOT ALLOW LIMITATIONS AS TO HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC RIGHTS AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE OR JURISDICTION TO JURISDICTION.
IN NO EVENT AND UNDER NO LEGAL THEORY, INCLUDING WITHOUT LIMITATION TORT, CONTRACT, OR STRICT PRODUCTS LIABILITY, SHALL RFMS BE LIABLE TO THE CUSTOMER OR ANY
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OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOOD WILL, BUSINESS PROFITS OR EARNINGS, BUSINESS INTERRUPTION OR OPPORTUNITY, BUSINESS INFORMATION, PERSONAL INJURY (INCLUDING DEATH), COMPUTER MALFUNCTION, COMPUTER PERIPHERALS, FILES, DATA OR ANY OTHER KIND OF COMMERCIAL DAMAGES RESULTING OUT OF OR OTHERWISE ARISING IN CONNECTION WITH THE INSTALLATION, MODIFICATION, OR REMOVAL
OF THE SOFTWARE, EVEN IF RFMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER LOCAL LAW, CERTAIN LIMITATIONS MAY NOT APPLY AND YOU MAY HAVE ADDITIONAL RIGHTS THAT VARY FROM STATE TO STATE.
IN NO EVENT SHALL RFMS’ LIABILITY FOR ANY DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, EXCEED THE AMOUNT OF THE SUBSCRIPTION FEES PAID TO RFMS UNDER THIS AGREEMENT.
RFMS is not responsible for the accuracy of orders placed or received by the Company or the prices charged by the Company’s vendors, manufacturers or suppliers. Errors in quantities or price are solely the responsibility of the Company and its vendors, manufacturers, and suppliers.
The term of this agreement shall begin on the execution date of this Agreement and will continue for a period of six months. After the six-month period, this Agreement will automatically renew for an additional six-month term provided the Company is not in default of this Agreement. After the initial six-month term, either party may terminate this Agreement by giving written notice of its intent to terminate at least thirty (30) days prior to the desired termination date.
7.1. Further Assurances. Each party shall execute such additional documents and instruments as may be reasonably required for the other party to carry out the purpose and intent of this Agreement.
7.2. Quality Control Verification. RFMS shall have the right to periodically poll each supplier’s file transfer protocol (“FTP”) site and the Company’s E-Commerce transaction files/logs to check for undelivered electronic mail (product catalogs, invoices, advance ship notices, etc.) and to determine if purchase orders are being acknowledged. Only summary level header records will be accessed for quality control purposes and all such information will be kept confidential and will not be disclosed to any third party except as otherwise required by law.
7.3. Construction. This Agreement constitutes the entire agreement of the parties, as a complete and final integration thereof with respect to its subject matter. This Agreement governs the licensing of an “add-on” electronic commerce software component to RFMS’ more comprehensive software licensing options; accordingly, there may be other end-user license agreements, software licenses, and miscellaneous contracts in effect between the parties. All such agreements should be construed in harmony with the others to the Extent possible, however, in the event of an irreconcilable conflict among agreements, the terms of the end-user license agreement shall control. No representation, warranty, or covenant made by another party which is not contained in this Agreement or expressly referred to herein has been relied on by another party in entering into this Agreement. This Agreement shall be construed in its entirety according to its plain meaning and shall not be construed against the party who provided or drafted it.
7.4. Amendment in Writing. This Agreement may not be amended, modified, terminated, or waived in any respect whatsoever, except by a further agreement in writing, properly executed by all the parties.
7.5. Binding Effect. This Agreement shall bind the parties and their respective personal representatives, agents, distributes, successors, affiliates, and assigns.
7.6. Survival of Covenants. The representations, warranties, and covenants made pursuant to and contained in this Agreement shall survive the execution and delivery of this Agreement and the consummation of the transactions herein contemplated. Any obligation of a party that contemplates performance of such obligation after termination or expiration of this Agreement shall be deemed to survive such termination or expiration.
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7.7. Governing Laws. The laws of the State of Alabama shall govern the validity of this Agreement, the construction and enforcement of its terms, the interpretation of the rights and duties of the parties and all other matters relating to this Agreement.
7.8. Jurisdiction and Venue. Regardless of any place to which any of the parties may move and maintain residence, legal domicile, or sites at any time, each agrees, to the maximum Extent permitted by law, that any action based on this Agreement or any negotiations in connection herewith shall be instituted in the courts for the
Sixth Judicial Circuit of the State of Alabama or the United States District Court for the Northern District of Alabama, Western Division, to the maximum Extent permitted by law, each hereby irrevocably consents to the jurisdiction of such courts and waives any jurisdictional defenses that each may have to the institution of such an action in such courts.
7.9. Interest on Default. In the event of a default with respect to any amount owed hereunder, the defaulting party shall pay (whether or not a lawsuit is filed), in addition to any other sum due hereunder, interest on such amount at the rate of 1.5% per month.