This APPLICATION LICENSE AGREEMENT (the “Agreement”) shall set forth the terms and conditions pursuant to which Equiscribe. (“ES”) may license certain desktop, web and mobile applications that may be made available by ES (“Application(s)”). Each legal entity or individual that has agreed to license the Application shall be referred to as the “User”.
BY USING, INSTALLING, OR DOWNLOADING AN APPLICATION, USER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. USER SHOULD NOT USE THE APPLICATION IF THEY DON’T AGREE WITH THIS AGREEMENT. TO THE EXTENT THAT A MOBILE VERSION OF THE ApplicationS IS MADE AVAILABLE BY ES, THOSE APPLICATIONS ARE ALSO subject to the terms and conditions of the mobile Application’s distributor (E.G. APPLE OR GOOGLE) or the terms and conditions required by the mobile network operator
The Applications shall be used in the horse performance industry by Users that organize horse shows (the “Show(s)”), Users that are exhibitors in such Shows (the “Exhibitors”) and judges that participate in such Shows (the “Judges”). The organizer of the Show (the “Organizer(s)”) can use the Application to manage the Show, including the Exhibitors’ payment of entry fees and miscellaneous show-related fees. Exhibitors can use the Applications to register their participation in the Show and pay entry fees for such Show. Judges can use the Applications to judge, score and report on Exhibitors at the Show.
TERMS AND CONDITIONS
1. Term; Termination; Survival of Provisions
1.1. The Application to be licensed to the User shall be described in the ES order form that User has agreed to by clicking on the “I Accept” button on the ES website or mobile application or on a written order form provided by ES and signed by User (the “Order”). The Order shall also include the applicable license term for the Application (the “Term”), the price or license fee for the Application and any other terms specific to the Application. This Agreement may be terminated for cause by either party immediately and without further notice if the other party defaults in the performance of any of its material obligations under this Agreement or the Order and does not cure the default within thirty (30) days after receipt of notice in writing from the non-defaulting party. Upon any such termination, User will no longer have any right to access or use of the Application. The following sections of this Agreement shall continue in full force and effect upon termination of this Agreement or the Order or expiration of the Term: 5, 6 and 8.7.
1.2. ES shall have no obligation to refund any portion of any fee to use the Application (as set forth in Section 4 below) for any termination of the license.
2. Licenses
2.1. Subject to the provisions of this Agreement, ES grants to the User a non-exclusive, non-transferable, revocable, limited license to download (if applicable), access and use the Application during the Term. Any such use of the Application shall be solely in a manner consistent with the terms of this Agreement. Use of the Application may be limited to the specific number of users set forth in the Order. Except for the license granted in this Section 2.1, the User acknowledges that it acquires no other rights to the Application and that all right, title and interest in and to the Application shall remain with ES and its licensors. The User shall not decompile, copy, disassemble, modify, decrypt, translate, extract or otherwise reverse engineer the Application.
2.2. Except as set forth in this Agreement, User shall not (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Application; (b) modify or make derivative works based upon the Application; (c) create Internet "links" to the Application or "frame" or "mirror" the Application on any other server or wireless or Internet-based device; (d) interfere with or disrupt the integrity or performance of the Application or the data contained therein; or (e) attempt to gain unauthorized access to the Application or its related systems or networks.
2.3. To use the Application, User must acquire and maintain, all at its own cost and expense, that computer or mobile hardware, software and related services further described in the Order (collectively the “Required Materials”). User shall be solely responsible for the operation, use, support, maintenance and/or any warranty issues related to the Required Materials.
3. Use of Application and Support
3.1. ES shall provide User with a user ID and password to access and use the Application. User is solely responsible for the security and use of each user ID and password. User agrees that each user who obtains a user ID and password to use the Application pursuant to this Agreement shall: (a) keep their user ID and password secure and confidential; and (b) not share or transfer User ID and password with any other person or entity. If the security of the user ID and/or password is compromised, User shall promptly contact ES by email at support@equiscribe.com.
3.2. ES does not own any data, information, or material that User submits to ES while using the Application or that is collected and then displayed as part of the Application (the "User Data"). User, not ES, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all User Data, and ES shall not be responsible or liable for the deletion, correction, destruction, damage, loss, or failure to store any User Data. User grants ES the royalty-free, world-wide, perpetual, non-exclusive, transferable license to use, reproduce, modify, edit, publish, distribute, and display such User Data through the Application. Upon termination for User breach, ES shall have no obligation to maintain or forward any User Data. User represents and warrants to ES that User Data: (a) is original to User or that User has secured the rights to provide and use such User Data; (b) does not contain any content that is unlawful or invasive of another’s privacy or publicity rights; or (c) does not contain a virus or other harmful component.
3.3. Except as set forth in this Agreement, ES shall not (a) disclose, provide, or make available the User Data to a third party without User’s prior written approval; or (b) make any other use of the User Data. User acknowledges that ES may compile certain general information related to the use of the Application. Notwithstanding the restrictions set forth in this Section 3, User agrees that ES is authorized to use, reproduce, and generally make User Data available to third parties in the aggregate, provided that such User Data shall not include personally identifiable information or identify User as the source of such aggregated data.
3.4. ES shall provide email-based support concerning use of the Application. Such support shall be provided 9:00 AM CST to 5:00 PM CST, Monday through Friday, excluding federal holidays.
4. Payment and Billing. There will be no fee for Exhibitors or Judges to use the Application. In some instances, Exhibitors may pay the Show entry fees to the Organizers without use of the Application (the “Direct Payments”). In other instances, the Exhibitors may pay the entry fees for the Show through the Application (the “Application Payments”). The license fee to be paid by the Organizers to ES shall be based on a percentage of the Direct Payments and Application Payments; the percentage shall be set forth in the applicable Order (the “Percentage”). The Percentage associated with the Direct Payment (along with applicable sales and use taxes) shall be invoiced by ES to Organizer to on the completion of the horse show; such invoice shall be paid by the Organizer within 60 days of the date of said invoice. The Percentage payment associated with the Application Payments (minus credit card chargebacks, refunds, discounts, cancellations, and sales/use taxes) shall be paid by ES to the Organizer within 30 days of the completion of the Show. Exhibitors using the Application to pay the Show entry fees shall pay such entry fees by credit card, debit card or PayPal (the “Payment Information”). Exhibitor hereby grants ES the right to use the Payment Information submitted by User (e.g. card/account number, expiration date and security code) to accept payment of entry fees for the Show. If ES is unable to use the Payment Information to accept the payment of the Exhibitor’s Show entry fees, then the Show records shall indicate that the Exhibitor has not paid such fees. In addition to any other rights granted to ES herein, ES reserves the right to suspend or terminate this Agreement and the Organizer’s access to or use of the Application if Organizer fails to pay the Percentage associated with the Direct Payments in a timely manner, as set for above.
5. Limitation of Liability. EXCEPT FOR THE OBLIGATIONS SET FORTH IN SECTION 6 (INDEMNIFICATION), IN NO EVENT SHALL (A) ES BE LIABLE TO THE USER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO THE LOSS OF PROFITS, INCOME, GOODWILL OR DATA, OR THE INABILITY TO UTILIZE THE APPLICATION; AND (B) ES’S AGGREGATE LIABILITY TO THE USER EXCEED THE APPLICATION FEES ACTUALLY PAID BY User IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
4. Indemnification
6.1 ES shall indemnify and hold the User and its parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with: (a) a third party claim brought against User alleging that the Application infringes a copyright, a U.S. patent issued, or a trademark of a third party; or (b) a claim, which if true, would constitute a violation by ES of its representations or warranties set forth in Section 7.1 below; provided that the User (i) promptly give written notice of the claim to ES; (ii) gives ES sole control of the defense and settlement of the claim (provided that ES may not settle or defend any claim unless it unconditionally releases the User of all liability); (iii) provides to ES all available information and reasonable assistance; and (iv) has not compromised or settled such claims.
6.2 User shall indemnify and hold ES and its parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with: (a) a claim, which if true, would constitute a violation by the User of the representations and warranties set forth in Section 7.3 below; (b) User’s breach of Sections 2 or 3.2 above or (c) User’s use of the Application; provided that ES (i) gives the User prompt written notice of the claim; (ii) gives the User control of the defense and settlement of the claim (provided that the User may not settle or defend any claim unless the User unconditionally releases ES of all liability and such settlement does not affect ES); and (iii) provides the User all available information and reasonable assistance; and (iv) has not compromised or settled such claim.
5. Representations and Warranties
5.1. ES represents and warrants that: (a) it has the power and authority to enter into this Agreement and to perform all its obligations; (b) the performance of such obligations will not conflict with or result in a breach of any agreement to which ES is a party or is otherwise bound; and (c) it is the owner or authorized licensee of the Application.
5.2. ES warrants to the User that the Application shall operate in substantial accordance with the functional descriptions of the Application found in Order. If the Applications fail to so conform to such descriptions of the Application, then ES shall, as the User’s sole remedy, make a commercially reasonable effort to correct the Application. All warranty claims related to the Application must be made within thirty (30) days of the days of the date that the Application first failed to meet the above warranties. This warranty to User shall be null and void if the warranty breach is due to: (a) hardware, third party software (including open-source software) and/or network failures; (b) modification of the Applications by any party other than ES or (c) misuse, errors or negligence of User or its employees or agents in using the Applications.
5.3. The User represents and warrants that: (a) it has the power and authority to enter into this Agreement and to perform all of its obligations; (b) the performance of such obligations will not conflict with or result in a breach of any agreement to which the User is a party or is otherwise bound; and (c) its performance under this Agreement and its use of the Application and the User Data, shall all comply with all applicable laws, rules, regulations and policies.
5.4. OTHER THAN AS SET FORTH IN THIS SECTION 7, ES SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ES DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE; (B) THE APPLICATION WILL MEET ALL OF THE USER’S REQUIREMENTS; OR (C) ALL ERRORS OR DEFECTS WILL BE CORRECTED.
6. Other Provisions
6.1. In the event that ES is unable to provide the Application because of any cause reasonably beyond its control, including, without limitation, acts of God, civil unrest, pandemic, epidemic, or quarantine (each a “Force Majeure event”), ES shall promptly give notice to the User and shall take all reasonable measures to resume performance. If the period of non-performance exceeds thirty (30) days from the receipt of notice, the User may give written notice to ES terminating this Agreement effective upon receipt.
6.2. User may not assign this Agreement to any person or entity without the prior written permission of ES.
6.3. This Agreement, along with each Order submitted or executed by User and accepted by ES, each of which is hereby incorporated by reference, constitutes the entire understanding of the parties, and supersedes all prior discussions and agreements with respect to its subject matter. This Agreement may be amended only by written instrument signed by both parties.
6.4. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The failure of ES to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by ES in writing.
6.5. Either party may give notice by personal delivery or by nationally recognized expedited carrier (e.g., FedEx or DHL). Personal delivery shall be effective upon delivery; delivery by expedited carrier shall be deemed delivered forty-eight (48) hours after the notice is sent by such expedited carrier.
6.6. Notwithstanding the provisions of this Section 3 above, ES shall have the right during the Term to: (a) list and name User as a user of the Application (including the limited right to use User’s corporate logo, subject to User’s written guidelines on such use); and (b) issue a press release regarding this agreement subject to User’s prior written approval, which shall not be unreasonably withheld.
6.7. The Agreement shall be controlled by and interpreted under the laws of the state of Minnesota, excluding that state’s conflict of laws’ provisions. The exclusive jurisdiction for any dispute regarding this Agreement shall be the state or federal courts in Hennepin County, Minnesota. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.