LIMITED USE POLICY
NEW TERMS MAY APPLY
PLEASE READ THE MASTER SUBSCRIPTION AGREEMENT ("AGREEMENT"), CAREFULLY BEFORE USING THE FINISHLINE SOFTWARE. BY EXECUTING A SALES ORDER FORM INCORPORATING THIS AGREEMENT, AND/OR ACCESSING THE FINISHLINE SOFTWARE, YOU ARE ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT AND AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
If you are signing up for the Service (as defined in Section 1 below) on behalf of a company, you represent that you are duly authorized to represent that company and accept the terms and conditions of the Agreement on behalf of the company. By your acceptance, a binding contract is then formed between FinishLine, Inc. (“FinishLine”) and the company in accordance with the terms and conditions of this Agreement. FinishLine may modify this Agreement in the future, however Customer is only subject to modified terms upon renewal of the FinishLine Service. You personally agree not to commit or encourage any violation of the Agreement between FinishLine and the company.
If you are entering into this Agreement on behalf of your company, the terms "You", “Your”, and Customer in this Agreement means your company and all of its employees. If you are entering into this Agreement on your own behalf, or if you are not authorized to represent the company on whose behalf you purport to sign up, you agree that you are personally bound by this Agreement. In such cases, the terms "You", “Your”, and Customer in this Agreement mean you.
IF THE COMPANY YOU REPRESENT OR YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT CLICK ON THE “SUBMIT” BUTTON OR THE “I HAVE READ AND AGREE” BOX, DO NOT EXECUTE A SALES ORDER FORM INCORPORATING THIS AGREEMENT, AND DO NOT USE THE SERVICE.
Master Subscription Agreement
1.1 “Agreement” means, collectively, this Master Subscription Agreement, and the attached exhibits hereto, as well as any Order Form executed to by the parties, each of which are incorporated herein by this reference.
1.2 “Customer Data” means any Customer-specific data, materials, or content provided or submitted to or through the Premium Service.
1.3 “Confidential Information” means this Agreement, the FinishLine Software Technology, FinishLine Software pricing information, Customer Data and any other information disclosed by one party (“Discloser”) to the other (“Recipient”) hereunder.
1.4 “Content” means building plan prints, photos, images, cut sheets, other documents uploaded by Users or any annotations, notes or other written or electronic additions to those documents.
1.5 “Documentation” means the online help FinishLine Software provides for use with the Premium Services.
1.6 “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, service mark, trade name, domain name right, trade secret, know-how or other intellectual property rights, and all similar or equivalent rights or forms of protection, in any part of the world.
1.7 “Order Form” means a document that details the Service(s) to be provided by FinishLine Software, the associated fees, and other related details. If multiple Order Forms will apply to this Agreement, they will each have their own unique identifier. All duly executed Order Form(s) are deemed incorporated herein by this reference. Each Order Form is intended to define a separate contract particular to that order, incorporating by reference this Agreement. An Order Form may also contain other terms or conditions, mutually agreed upon in writing by FinishLine Software and Customer, which apply specifically to that particular order/contract. Customer agrees that each Order Form will be signed by a representative having the authority to bind Customer, and that FinishLine Software may presume that such representative has such authority.
1.8 “Premium Service(s)” or “Service(s)” means the SaaS-based service provided by FinishLine Software pursuant to an Order Form that provides additional functions and services as compared to the FinishLine Software free service.
1.9 “Professional Services” means the implementation, configuration, and/or training, services to be provided by FinishLine Software to Customer pursuant to an Order Form.
1.10 “Service Term” means the Order Form-specified period during which the Premium Service is available.
1.11 “FinishLine Software Technology” means FinishLine Software’s proprietary software and other technology provided via the Premium Service, including any enhancements, modifications, and derivative works to any of the foregoing, as well as any and all suggestions, ideas, enhancement requests, and feedback relating thereto.
1.12 “User” means Customer or its affiliates’ employees, contractors, or agents whom Customer expressly authorizes to use the Premium Service.
2. Provision of Premium Service.
2.1 End User License Agreement. All terms of the End User License agreement (“EULA”), currently available at http://www.FinishLine Software.com/FinishLine Software-EULA.pdf, are explicitly incorporated here by reference. Any conflict between this Master Subscription Agreement and the terms of the End User License Agreement, any Order Form, or other exhibit hereto, will be resolved in the following order: (a) any Order Form; (b) this Master Subscription Agreement (c) the End User License Agreement.
2.2 Provision of Premium Service; Access Right. Subject to the terms and conditions of this Agreement, during the applicable Service Term, FinishLine Software will provide Customer and its Users with the Premium Services, purchased on a subscription basis, described on one or more Order Form(s). Customer will designate User accounts for each of its users and subject to law or other regulation, it may change or delete FinishLine Software access service credentials for any of its Users. FinishLine Software may update the content, functionality, and user interface of the Premium Service from time to time. Although FinishLine Software may substitute substantially equivalent features, FinishLine Software will not materially reduce the function of the Premium Services. Subject to Customer’s compliance with the terms and conditions of this Agreement, FinishLine Software grants to Customer a non-exclusive, non-transferrable, non-sublicenseable, revocable right and license to install and use the mobile application (“Mobile App”), FinishLine Software website and other elements of the Premium Service solely in connection with Customer’s internal business use. FinishLine Software reserves all rights not expressly granted hereunder.
2.3 Service Level Agreement. FinishLine Software shall maintain commercially reasonable administrative, physical and technical safeguards designed for the protection, confidentiality and integrity of Customer Data. FinishLine Software will (a) make the Premium Services and Content available to Customer pursuant to this Agreement and the applicable Order Forms, (b) provide FinishLine Software standard support for the Premium Services to Customer at no additional charge, and (c) use commercially reasonable efforts to make the online Premium Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which FinishLine Software shall give at least 24 hours electronic notice and which FinishLine Software shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday Pacific time) (ii) emergency updates; and (ii) any unavailability caused by circumstances beyond FinishLine Software’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving FinishLine Software employees), Internet service provider failure or delay, hosting service failure, non-FinishLine Software application failure or denial of service attack.
2.4 Customer Responsibilities. Customer will abide by all applicable laws, treaties, ordinances and regulations regarding use of the Premium Services. Customer will be responsible and liable for the acts and omissions of all Users in connection with this Agreement, as well as any and all access to and use of the Service by any User or any other person logging in under a User ID registered under Customer’s account or providing and/or receiving Customer Data or other information through the Service. Customer acknowledges that Customer’s access information, including User IDs and passwords of its Users, will be Customer’s “key” to the Premium Service; accordingly, Customer will be responsible for maintaining the confidentiality of such access information. Customer shall be responsible for the accuracy, quality and legality of the Content and the means by which Customer acquired it. Customer’s responsibilities regarding Registration and Protection of Credentials, User Restrictions and Content are set forth in the End User License Agreement, explicitly incorporated by reference.
2.5 Load Testing and Use of Robots. Customers may not, without the prior written consent of FinishLine Software’s security officer, (i) conduct security, integrity, penetration, vulnerability or similar testing on the FinishLine Software, (ii) use any software tool designed to automatically emulate the actions of a human user (such tools are commonly referred to as robots) in conjunction with the FinishLine Software Technology, or (iii) attempt to access the data of another FinishLine Software customer (whether or not for test purposes).
2.6 Professional Services. FinishLine Software will perform the work in the Order Form and use commercially reasonable efforts to meet the schedules. Customer will provide FinishLine Software with reasonable support and access to its facilities, systems, materials and personnel needed to perform the Professional Services and will be responsible for any negative impact to the services schedule to the extent Customer fails to do so.
3. Intellectual Property Ownership. As between FinishLine Software and Customer, Customer owns all right, title and interest, including all related Intellectual Property Rights, in and to the Content and any work based on or derived from the Content. As between FinishLine Software and Customer, FinishLine Software (or its licensors and suppliers) owns and will continue to own all right, title and interest, including all related Intellectual Property Rights, in and to the Premium Service and the FinishLine Software Technology. No jointly owned intellectual property is created under or in connection with this Agreement. Customer acknowledges that the FinishLine Software name, the FinishLine Software logo, and the product names associated with the Service are trademarks of FinishLine Software or third parties, and no license to such marks is granted herein. FinishLine Software is free to use any ideas, concepts, know-how, or techniques contained in Customer communications for any purpose including, but not limited to, developing and marketing products using such information, provided that FinishLine Software will not disclose Customer Confidential Information.
4. Billing and Payment.
4.1 Subscriptions. Unless otherwise provided in the applicable Order Form, (a) Premium Services and Content are purchased as subscriptions, (b) additional User subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
4.2 Usage Limits. Premium Services and Content are subject to usage limits, including, for example, the quantities specified in Order Forms corresponding to product levels. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service or Content may not be accessed by more than that number of Users, (b) a product level in an Order Form refers to the amount of Content that may be loaded by a User, (c) a User’s password may not be shared with any other individual, and (d) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Premium Service or Content. If Customer or User exceeds a contractual usage limit, FinishLine Software may impair Customer’s access to the Premium Services and Content until Customer conforms its use to the contractual limit.
4.3 Fees. Customer will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on number of User subscriptions and product level, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
4.4 Invoicing and Payment. Customer will provide FinishLine Software with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to FinishLine Software. If Customer provides credit card information to FinishLine Software, Customer authorize FinishLine Software to charge such credit card for all purchased Premium Services listed in the Order Form for subscription term and any renewal subscription term(s) as set forth in Section 5.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, FinishLine Software will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net twenty-five (25) days from the invoice date. Customers are responsible for providing complete and accurate billing and contact information to FinishLine Software and notifying FinishLine Software of any changes to such information.
4.5 Overdue Charges. If any invoiced amount is not received by FinishLine Software by the due date, then without limiting FinishLine Software rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) FinishLine Software may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 4.4 (Invoicing and Payment).
4.6 Suspension of Service and Acceleration. If any amount owing by Customer under this or any other agreement for Premium Services is 30 or more days overdue (or 10 or more days overdue in the case of amounts Customer have authorized FinishLine Software to charge to Customer’s credit card), FinishLine Software may, without limiting FinishLine Software other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Premium Services to Customer until such amounts are paid in full. FinishLine Software will provide at least five (5) business days advance notice prior to suspending a Customer account.
4.7 Payment Disputes. FinishLine Software will not exercise FinishLine Software rights under Section 4.5 or 4.6 above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently with FinishLine Software to resolve the dispute.
4.8 Taxes. FinishLine Software subscription fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable against Customer and its Users by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If FinishLine Software has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 4, FinishLine Software will invoice Customer and Customer will pay that amount unless Customer provides FinishLine Software with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.9 Future Functionality. Customer agrees that Customer’s purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by FinishLine Software regarding future functionality or features.
5. Term; Termination.
5.1 Term of Agreement. This Agreement commences on the date Customer first accept it and, unless otherwise terminated, continues until all subscriptions hereunder have expired or have been terminated.
5.2 Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant subscription term.
5.3 Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Additionally, Customer may terminate this Master Subscription Agreement upon 30 days written notice; however, it will nonetheless continue in effect with respect each ongoing subscription until the same has expired.
5.4 Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with Section 5.3 (Termination), FinishLine Software will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by FinishLine Software in accordance with Section 5.3, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve Customer of Customer’s obligation to pay any fees payable to FinishLine Software for the period prior to the effective date of termination.
5.5 Customer’s Data Portability and Deletion. Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, FinishLine Software will make the Customer’s Content available to Customer for export or download. After that 30-day period, FinishLine Software will have no obligation to maintain or provide Customer’s Data, and will thereafter delete or destroy all copies of Customer’s Data in FinishLine Software systems or otherwise in FinishLine Software possession or control as provided in the Documentation, unless legally prohibited.
5.6 Effect of Termination; Survival. Upon expiration or termination of this Agreement: (a) all subscriptions and licenses granted by FinishLine Software under this Agreement and FinishLine Software’s obligation to provide (and Customer’s right to access and use) the Service and FinishLine Software Technology, will terminate; (b) Customer Data will be returned or deleted pursuant to Section 5.5; and (d) Sections 3 and 6 through 10 will survive.
6. Representations and Warranties.
6.1 By FinishLine Software.
(a) Conformity with Specifications. FinishLine Software represents and warrants to Customer that the applicable Premium Service platform, when used in accordance with the instructions in the Documentation and this Agreement, will conform to the specifications in the applicable Documentation. FinishLine Software’s entire liability and Customer’s sole and exclusive remedy for such breach will be, at FinishLine Software’s election, to either: (A) re-perform, modify, or replace the Service so that it so conforms to such warranty; or (B) provide a refund of the fees paid for the affected Service, and solely as to the refunded Service, this Agreement, and Customer’s right to access such Service will immediately terminate. FinishLine Software makes no warranty with respect to, errors caused by or relating to: (1) use of the Service in a manner inconsistent with the Documentation or this Agreement; or (2) third party hardware or software misuse, modification, or malfunction.
(b) Noninfringement. FinishLine Software represents and warrants to Customer that the Service, when used in accordance with the instructions in the Documentation and this Agreement, does not and will not infringe or misappropriate any third party’s Intellectual Property Rights. As FinishLine Software’s sole and exclusive obligation and Customer’s sole and exclusive remedy for breach of the foregoing warranty, FinishLine Software will indemnify Customer as set forth in Section 7.1 ‘Indemnification – by FinishLine Software’.
6.2 By Customer. Customer represents and warrants to FinishLine Software that (i) Customer has the right to provide or submit the Content through the Premium Services, and (ii) the Content does not and will not violate the terms or conditions of this Agreement, applicable law, or infringe or misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party. As Customer’s sole and exclusive obligation and FinishLine Software’s sole and exclusive remedy for breach of the foregoing warranty, Customer will indemnify FinishLine Software as set forth in Section 6.
6.3 WARRANTY DISCLAIMERS. EXCEPT AS WARRANTED HEREIN, ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE DISCLAIMED. FINISHLINE SOFTWARE’S PREMIUM SERVICES MAY BE SUBJECT TO, AND FINISHLINE SOFTWARE IS NOT REPSONSIBLE FOR, LIMITATIONS, RISKS, AND OTHER PROBLEMS INHERENT IN ELECTRONIC COMMUNICATIONS, AND FINISHLINE SOFTWARE DOES NOT WARRANT THAT USE OF THE PREMIUM SERVICES IS RISK-FREE. FINISHLINE SOFTWARE DOES NOT PROVIDE REPRESENTATIONS, WARRANTIES, OR ASSURANCES AGAINST INTERCEPTION OR ACCESS AND FINISHLINE SOFTWARE IS NOT RESPONSIBLE FOR ANY UNAUTHORIZED ACTS RESULTING IN LOSS OF OR DAMAGE TO CUSTOMER DATA OR OTHER PROPERTY IN CONNECTION WITH CUSTOMER’S USE OF THE PREMIUM SERVICES. FINISHLINE SOFTWARE MAY, IN PERFORMING ITS OBLIGATIONS PURSUANT TO THIS AGREEMENT, BE DEPENDENT UPON OR USE DATA, MATERIAL, AND OTHER INFORMATION FURNISHED BY CUSTOMER WITHOUT ANY INDEPENDENT INVESTIGATION OR VERIFICATION THEREOF, AND FINISHLINE SOFTWARE MAY ASSUME THAT SUCH INFORMATION IS ACCURATE, COMPLETE, AND LEGALLY SUFFICIENT.
7.1 By FinishLine Software. FinishLine Software will defend Customer from and against any and all third party lawsuits to the extent: (a) alleging that the Premium Service infringes or misappropriates any Intellectual Property Rights; (b) arising out of or relating to a breach of this Agreement by FinishLine Software, and will indemnify and hold Customer harmless from any and all damages, losses, liabilities, costs, expenses, and other amounts to the extent awarded by a court of final jurisdiction relating to such claim, or agreed to in a monetary settlement of such claim. FinishLine Software will have no indemnification obligation for infringement or misappropriation claims to the extent arising from: (i) Customer’s or any User’s use of the Premium Services other than as permitted under this Agreement; (ii) the combination of the Service with any Customer Data or any Customer or third party products, services, hardware, data, content, or business process(s); or (iii) from the modification of the Service or any FinishLine Software Technology by any party other than FinishLine Software or FinishLine Software’s agents. If the Premium Services provided under this Agreement become the subject of any claim, suit or proceeding for infringement of any intellectual property rights, or if it is held or otherwise determined to infringe any intellectual property rights, FinishLine Software will (1) secure for Customer the right to continue using the Premium Services; or (2) replace or modify the Premium Services to make it non-infringing without degrading its performance or utility; or (3) if FinishLine Software using its best efforts is unable to accomplish item (1) or (2) above, either Customer or FinishLine Software may terminate this Agreement and FinishLine Software will refund to Customer the pro-rata portion of the unused subscription Fees related to the infringing intellectual property. THE FOREGOING IS FINISHLINE SOFTWARE’S SOLE AND EXCLUSIVE OBLIGATION FOR THE THIRD PARTY CLAIMS DESCRIBED IN THIS SECTION 7.1.
7.2 By Customer. Customer will defend FinishLine Software from and against any and all third party lawsuits to the extent: (a) alleging that the Content or its duplication, enhancement, publication or use infringes or misappropriates any Intellectual Property Rights, breaches any agreement between Customer and a third-party, or violates any other common law, statutory right or published policy, such as privacy; (b) arising out of or relating to a breach of this Agreement by Customer or any Users; or (c) it arises from a claim of violation by Customer or Users of any law, ordinance or regulation or contractual obligation to a third-party, and Customer will indemnify and hold FinishLine Software harmless from any and all damages, losses, liabilities, costs, expenses, and other amounts to the extent awarded by a court of final jurisdiction relating to such claim, or agreed to in a monetary settlement of such claim. Customer acknowledges that its obligation to indemnify and hold FinishLine Software harmless extends to all Users of Customer’s Premium Services accounts, not just its own employees and agents.
7.3 Indemnity Process. Each party’s indemnification obligations are conditioned on the indemnified party: (a) promptly giving written notice of the claim to the indemnifying party; (b) giving the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not settle any claim unless the settlement unconditionally releases the indemnified party of all liability for the claim); (c) providing to the indemnifying party all available information and assistance in connection with the claim, at the indemnifying party’s request and expense; and (d) not compromising or settling such claim. The indemnified party may participate in the defense of the claim, at the indemnified party’s sole expense (not subject to reimbursement).
8. Limitation of Liability. EXCEPT FOR A BREACH OF SECTION 3 ‘INTELLECTUAL PROPERTY’ OR SECTION 9 ‘CONFIDENTIALITY’, EACH PARTY’S INDEMNIFICATION OBLIGATIONS, OR FOR DIRECT DAMAGES TO THE EXTENT ARISING OUT OF A PARTY’S INTENTIONAL MISCONDUCT, OR FRAUD, NEITHER FINISHLINE SOFTWARE’S NOR ITS SUPPLIERS’ OR LICENSORS’, NOR CUSTOMER’S AGGREGATE LIABILITY WILL EXCEED THE SUMS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER UNDER THE APPLICABLE ORDER FORMS. EXCEPT FOR A BREACH OF SECTION 3 ‘INTELLECTUAL PROPERTY’ OR SECTION 9 ‘CONFIDENTIALITY’ OR EACH PARTY’S INDEMNIFICATION OBLIGATIONS, NEITHER FINISHLINE SOFTWARE NOR ITS SUPPLIERS OR LICENSORS, NOR CUSTOMER, WILL BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, OR USE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING THE USE OR INABILITY TO USE THE SERVICE, ANY INTERRUPTION, INACCURACY OR ERROR IN THE CONTENT, EVEN IF FINISHLINE SOFTWARE HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. Confidentiality. Recipient may use Discloser’s Confidential Information solely to perform Recipient’s obligations or exercise its rights hereunder. Recipient may not knowingly disclose, or permit to be disclosed, Discloser’s Confidential Information to any third party without Discloser’s prior written consent, except that Recipient may disclose Discloser’s Confidential Information solely to Recipient’s employees, officers, directors, consultants, contractors, agents or advisors (“Representatives”) who have a need to know for purposes of the Recipient’s exercise of its rights or performance of its obligations under this Agreement and who are bound in writing to keep such information confidential pursuant to confidentiality agreements consistent with this Agreement. Recipient acknowledges and agrees that it is responsible and liable for any breach by its Representatives of this section of this Agreement. Recipient agrees to exercise due care in protecting Discloser’s Confidential Information from unauthorized use and disclosure, and will not use less than a reasonable degree of care. The foregoing will not apply to any information that: (i) was or becomes generally known by the public through no fault of Recipient; (ii) was properly known to Recipient, without restriction, prior to disclosure by Discloser; (iii) was properly, and with authority, disclosed by a third party to Recipient, without restriction ; (iv) Recipient independently develops without use of Discloser’s Confidential Information; or (v) is expressly permitted to be disclosed pursuant to the terms of this Agreement. If the Recipient or any of its Representatives is required pursuant to a judicial or legislative order or proceeding to disclose any Confidential Information of Discloser, then, to the extent permitted by applicable law, the Recipient shall promptly, and prior to such disclosure, notify the Discloser of such requirement so that the Discloser can see a protective order or other remedy, notice of the intended disclosure and an opportunity to respond or object thereto. No such compelled disclosure by the Recipient will otherwise affect the Recipient's obligations hereunder with respect to the Confidential Information so disclosed. Upon Discloser’s written request at any time and subject to any contrary obligations under this Agreement or applicable law, Recipient shall at Discloser’s direction promptly return or destroy and erase from all systems it directly or indirectly uses or controls (a) all originals and copies of all documents, materials and other embodiments and expressions in any form or medium that contain, reflect, incorporate or are based on Discloser’s Confidential Information, in whole or in part, except to the extent required by applicable law or in backup systems until deleted in the ordinary course, provided that all such information and materials will remain subject to the confidentiality and security requirements set forth in this Agreement, or (b) solely such specific Confidential Information as Discloser may request, and provide, upon request, a written statement to Discloser certifying that it has complied with the requirements of this section.
10.1 Publicity. During any applicable Service Term, Customer grants FinishLine Software the right to identify Customer as a customer of the applicable Premium Services, including using the Customer’s logo, solely in marketing materials and on FinishLine Software’s website. Neither party shall issue any press release regarding this Agreement without the prior written consent of the other party.
10.2 Notices. All notices, requests, demands, waivers, consents and other communications hereunder will be in writing and will be served by personal service, certified or registered mail or confirmed electronic or facsimile transmission at the address of the receiving party set forth below (or at such different address as may be designated by such party by written notice to the other party), and shall be deemed complete upon receipt.
If to FinishLine Software
FinishLine Software, Inc.
3229 Haven Beach Way, Las Vegas, NV 89117
Attn: Brock Beal
Email: [email protected]
10.3 Assignment. Neither party may assign this Agreement, by operation of law or otherwise, without the other party’s prior written approval; provided, however, that a party may assign its rights and obligations under this Agreement, without the approval of the other party, to: (a) an entity that acquires all or substantially all of the assets of the assigning party; or (b) any subsidiary or Affiliate of the assigning party or successor in a merger or acquisition (whether by operation of law or otherwise) involving the assigning party’; provided, further that for any permitted assignment by a party, the assigning party will provide the non-assigning party with written notice of such assignment and that the party receiving the assignment assumes all of the performance obligations and liabilities of the assigning party. Any attempted assignment in violation of the foregoing will be null and void.
10.4 Governing Law; Venue. This Agreement will be governed by Nevada law, without regard to conflicts of law provisions. Neither the U.N. Convention of Contracts for the International Sale of Goods nor UCITA will apply. Any dispute arising out of or relating to this Agreement shall be brought in San Francisco, and as appropriate, either in the Superior Court of the State of Nevada or in the United States District Court for the District of Nevada. Each party hereby consents to the exclusive jurisdiction of such courts.
10.5 Remedies. Except as provided in Sections 6 and 7, the parties’ rights and remedies hereunder are cumulative. Customer acknowledges that the Premium Service and FinishLine Software Technology contain FinishLine Software’s valuable trade secrets and proprietary information, that any breach of this Agreement relating thereto will constitute harm to FinishLine Software for which monetary damages would be inadequate, and that seeking injunctive relief is an appropriate remedy.
10.6 Independent Contractors. The parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this Agreement or use of the Service. Neither party shall have any authority to contract for or bind the other party in any manner whatsoever.
10.7 U.S. Government End Users. If Customer is a U.S. government agency, the following applies. FinishLine Software provides the Service, including related software and technology, in accordance with the following: government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary access right and license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with FinishLine Software to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights, must be included in any applicable contract or agreement.
10.8 Export Compliance. Customer acknowledges that the Premium Services may be subject to U.S. and foreign export and import restrictions. Customer will not and will not allow any export or re-export of any part of the Premium Services, or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations. Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Premium Service is further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.
10.9 Waiver; Amendment; Severability. A party’s failure to enforce any provision in this Agreement will not constitute a waiver unless in writing. No amendment hereof will be effective unless in writing and signed by both parties. If any provision of this Agreement is unenforceable, it will be changed and interpreted to accomplish the objectives of such provision to the extent legally permissible; remaining provisions will continue in full force and effect. Neither party will be liable for failure to perform due to causes beyond its reasonable control.
10.10 Purchase Orders. This Agreement shall prevail over any inconsistent terms or conditions contained in, or referred to in, Customer's purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing. No addition to, variation of, exclusion or attempted exclusion of any term of the Agreement shall be binding on FinishLine Software unless in writing and signed by a duly authorized representative of the FinishLine Software.
10.11 Local Use Decisions. FinishLine Software will not provide Customer with any legal advice regarding compliance with data privacy or other relevant laws, rules or regulations in the jurisdictions in which Customer uses the Application (“Laws”). The parties acknowledge and agree that not all features, functions and capabilities of the Application may be used in all jurisdictions and Customer recognizes that certain features, functions and capabilities may need to be configured differently or not used in certain jurisdictions in order to comply with applicable local law, and in certain jurisdictions consents may need to be obtained from individuals submitting data via the Application as to the intended purpose, storage, distribution, access and use of the data submitted (“Local Use Decisions”). Customer is responsible for Local Use Decisions and FinishLine Software disclaims all liability for Local Use Decisions.
10.12 Entire Agreement. This Agreement forms the entire agreement between Customer and FinishLine Software regarding the subject matter hereof. It supersedes all prior or contemporaneous negotiations or agreements between the parties regarding its subject matter. Any preprinted terms on any Customer purchase order will have no effect on the terms of this Agreement and are hereby rejected. Headings are for reference purposes. “Including” means “including but not limited to.”
10.13 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
In Witness Whereof, the parties hereto have caused this Agreement to be executed by their respective authorized representatives, as of the Effective Date.