1. Purpose. The purpose of this Agreement is to set forth the terms and conditions pursuant to which, among other things, Sonoma licenses to Licensee use of one or more of Sonoma's software applications downloaded by Licensee (collectively, the"Application") such that Licensee can use the Application for its intended purpose (the "Intended Purpose").
2. License; Support.
(a) License. Sonoma hereby grants Licensee a non-transferable, non-exclusive, revocable, limited license to download, install, access and use the Application during the Term (as defined below) solely for the Intended Purpose. Sonoma may, from time to time, update or modify the Application, release new versions of the Application or create new modules related thereto, each of which may, at Sonoma's discretion and to the extent Sonoma makes such versions or modules available to other similarly-situated licensees, be included within the license described above. Licensee shall not be permitted to sublicense, assign or transfer any of Licensee's rights hereunder including, without limitation, access to or use of the Application.
(b) No Support. Sonoma shall have no support obligations in respect of the Application either hereunder or otherwise.
3. Certain Restrictions. Licensee shall not directly or indirectly copy or reproduce all or any portion of the Application, whether electronically, mechanically or otherwise, in any form including, but not limited to, the copying of presentation, style or organization. Licensee shall use the Application solely for its Intended Purpose and shall not use the Application for the benefit of any third party except as specifically contemplated under this Agreement. Licensee will not use the Application: (a) in violation of any applicable law, statute, ordinance or regulation; (b) in a manner that will infringe the intellectual property rights of others; (c) in a way that is defamatory, obscene or trade libelous; (d) to work with any information, data or other intellectual property that contains any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (e) in a manner that is false, misleading or inaccurate in any way; or (f) in violation of the any acceptable use policy or other policy posted at Sonoma's website or otherwise made available to Licensee from time to time. Licensee shall not violate or attempt to violate the security of the Application or any of the source code included therein. Licensee shall not reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the Application, including, without limitation, any of the software comprising or in any way making up a part of the Application. All rights not specifically granted to Licensee in this Agreement are reserved by Sonoma.
4. Licensee's Responsibilities. Licensee shall be solely responsible for: (i) complying with all applicable laws, rules and regulations at all times; (ii) maintaining strict confidentiality as may be required in connection with any data entered into the Application; (iii) ensuring compliance with this Agreement by each of Licensee's permitted users within its business; and (vi) maintaining all passwords and access codes to the Application, and refraining from sharing or otherwise permitting third parties to use any such passwords and/or access codes to access the Application.
5. Representations and Warranties. Licensee represents and warrants that Licensee has the authority to enter into this Agreement and perform all functions required of Licensee hereunder, and that Licensee will comply with all applicable laws, rules, ordinances and regulations in accessing and/or using the Application.
6. Fees. The Application is made available to Licensee on a no-cost basis currently, however nothing herein shall prevent Sonoma from electing to charge license and/or other fees to access and/or use the Application at any point in the future.
7. Term and Termination. This Agreement shall continue in full force until such time as it is terminated by either Sonoma or Licensee (the "Term"). In addition, Sonoma shall be entitled to terminate or suspend the license granted hereunder immediately in the event Licensee breaches any of its obligations hereunder or otherwise misuses the Application in any way. Further, Sonoma reserves the right to discontinue making the Application available and/or licensing the Application to third parties, in which case the license granted hereunder shall be deemed to be terminated. Upon termination of this Agreement for any reason, Licensee shall no longer be entitled to access or use the Application. Sonoma shall not be responsible for the return of any data or information of any kind to Licensee upon any termination of this Agreement or suspension of Licensee's access to the Application. Sections 3, 4, 5 and 7 - 14 of this Agreement shall survive any termination of this Agreement.
8. Intellectual Property. All trademarks, patents, copyrights and other intellectual property rights owned by either party on the date hereof shall continue to be owned solely by such party, and except as set forth herein, nothing in this Agreement shall be deemed to confer any rights to any such intellectual property on the other party. For purposes of clarity: (i) as between Licensee and Sonoma, Licensee shall be deemed to be the sole owner of Licensee's name and all data, content or information entered into the Application; and (ii) Sonoma is the sole owner of the name "Sonoma Partners" as well as the Application, name of the Application, and all source code, object code, software, content, copyrights, trademarks, patents and other intellectual property related thereto or included therein. All suggestions, recommendations, bug-fixes, error-fixes or other communications from Licensee to Sonoma regarding the Application shall, upon submission to Sonoma, be owned solely and exclusively by Sonoma. Licensee acknowledges and agrees that the applicable supplier(s) of any third party software included within the Application shall own all worldwide rights, title and interest in and to such third party software (and any intellectual property rights therein), subject to such suppliers' license, if any, of such third party software to Sonoma.
9. Confidentiality. Each party agrees to treat as confidential all confidential information of the other party, not to use such confidential information for any purpose other than to the limited extent necessary to perform under this Agreement and not to disclose such confidential information to any third party except as may be reasonably required pursuant to this Agreement and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the generality of the foregoing, each of the parties shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of confidential information disclosed to it by the other party, provided, however, that in no event shall such degree of care be less than reasonable in light of general industry practice.
(a) No Warranties. Neither Sonoma nor any of Sonoma's employees, affiliates, agents, suppliers, equity holders, licensors nor the like, makes any warranties of any kind, either expressed or implied, including, without limitation, (a) warranties of merchantability or fitness for a particular purpose, (b) that the Application will be error-free, (c) as to a minimum level of operability or uptime for the Application, (d) as to any level of security, (e) as to the actions of any third party licensors or service providers, or (f) as to the results that may be obtained or achieved by Licensee by entering into this Agreement and/or using the Application. Licensee agrees and acknowledges that the Application is licensed, provided and/or made available hereunder on an "as is" basis.
(b) Unavailability of Application; Third Parties. Licensee is responsible, at Licensee's sole cost and expense, for providing all equipment necessary to load and/or use the Application. While it is Sonoma's objective to make the Application accessible at all times, the Application may be unavailable from time to time for any reason including, without limitation, routine maintenance and/or bugs within the Application. Sonoma is not responsible for any liability arising out of content provided by Licensee or a third party that is accessed through the Application and/or any material linked through such content.
11. Limitation on Liability. SONOMA SHALL NOT, UNDER ANY SET OF CIRCUMSTANCES, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNATIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DATA, ARISING OUT OF THIS AGREEMENT OR LICENSEE'S USE OF THE APPLICATION, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. IN ANY EVENT, SONOMA'S TOTAL LIABILITY TO LICENSEE FOR ANY CLAIM ARISING HEREUNDER OR RELATED HERETO SHALL NOT EXCEED $50.
12. Force Majeure. Sonoma shall not be liable to Licensee for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control.
13. Export. The Application, including technical data, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Licensee agrees to comply strictly with all such regulations. The Application may not be used, sold, resold, sublicensed, diverted, transferred or otherwise exported or re-exported: (i) in, into or through any country designated as a terrorist supporting country by the U.S. government or any of its agencies; (ii) in, into or through any country for which the U.S. has an embargo or with which the U.S. or any of its agencies maintains comprehensive trade controls; (iii) to or by a national or resident of the countries described in (i) or (ii); or (iv) to or by any party included in the United States Department of Commerce's Denied Persons List, Entity List or Unverified List; or the United States Department of the Treasury's Specially Designated Nationals, Specially Designated Global Terrorists, Specially Designated Narcotics Traffickers, Specially Designated Narcotic Traffickers, or Specially Designated Terrorists List; or the United States Department of State's Designated Foreign Terrorist Organizations or Debarred Persons List; or is otherwise designated by the U.S. government or any of its agencies as a party with which it is unlawful to do business.
14. Miscellaneous. Each party shall pay its own costs and expenses in connection with this Agreement and its activities hereunder. The rights and obligations of the parties under this Agreement shall be governed by the laws of the State of Illinois, without reference to conflict of law principles. Each party agrees that before it or any employee, agent or representative of the party files a claim or suit with a federal or state agency or court or other public forum, it shall provide 30 days' prior, written notice to the other party and that, within such third 30 day period (or longer, if extended by mutual desire of the parties), authorized representatives of the parties shall meet (or confer by telephone) at least once in a good faith attempt to resolve the dispute. All disputes arising hereunder or in connection with this Agreement which are not resolved as set forth above shall be resolved in the appropriate Federal or state court located solely and exclusively in Cook County, Illinois. The relationship between the parties under this Agreement is that of independent contractors and neither shall be, nor represent itself to be, the joint venture, franchiser, franchisee, partner, agent or representative of the other party for any purpose whatsoever. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns, but shall not be assignable by Licensee without Sonoma's prior written consent. Sonoma shall be entitled to reference Licensee as a licensee or customer of Sonoma at its website and/or within marketing or promotional materials. If any provision of this Agreement is held to be unenforceable or invalid for any reason, or if any governmental agency rules that any portion of this Agreement is illegal or contrary to public policy, the remaining provisions, to the extent feasible, will continue in full force and effect with such unenforceable or invalid provision to be changed and interpreted to best accomplish its original intent and objectives.