License and Services Agreement
Effective as of the date that you accept this Agreement as provided below (the “Effective Date”), this License and Services Agreement (this “Agreement”) is a binding agreement between you (or if you acting on behalf of a company, organization or another legal entity (an “entity”), then between the entity) (“Licensee”, “You”, “Your” or any correlative capitalized term used herein) and Coolfire Solutions, Inc., a Delaware corporation with principal office located at 415 N. 10th Street, Suite 300, St. Louis, MO 63101 (“Coolfire”) You and Coolfire shall each be referred to as a “Party” and collectively, the “Parties.”
BY ACCEPTING THIS AGREEMENT, EITHER BY ACCESSING OR USING THE SERVICES AND/OR THE API, OR BY CLICKING THE “AGREE” BUTTON, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL OR USE THE SERVICES AND YOU MAY NOT ACCESS NOR USE THE SERVICES OR API.
IF YOU ARE ACTING ON BEHALF OF AN ENTITY, ACCEPTING THIS AGREEMENT, EITHER BY ACCESSING OR USING THE SERVICES AND/OR THE API, OR BY CLICKING THE “AGREE” BUTTON, YOU ARE AGREEING TO THIS AGREEMENT FOR THAT ENTITY AND REPRESENTING TO COOLFIRE THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS “LICENSEE”, “YOU”, “YOUR” OR ANY CORRELATED CAPITALIZED TERM USED HEREIN SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MAY NOT ACCESS NOR USE THE SERVICES OR API.
Except as otherwise defined herein, for purposes of this Agreement, capitalized terms shall have the meanings set forth below.
Affiliate: means, with respect to a Party, any person or entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person or entity, whether through the ownership of voting securities, by contract, or otherwise.
Agent: means a person or entity (including those of Your Affiliates) authorized to use the Service(s) or the API through Your account or Credentials (defined below) as an agent and/or administrator.
API: means an application programming interface or API and any accompanying or related source code, executable applications and other materials made available by Coolfire, including, without limitation, through its developer portal.
Application(s): mean(s) web or other software service(s) or application(s) developed by Licensee that utilize(s) or interact(s) with the API and (is/are) authorized to be Published pursuant to this Agreement.
App Market: means any marketplace or other aggregator or public repository of code or applications.
Authorized User: means Licensee’s employees, consultants, contractors, agents and other third parties (i) who are authorized by Licensee to access and use the Services under the rights granted to Licensee pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder, as applicable.
Confidential Information: means all information disclosed by Coolfire which is in tangible form and labeled “confidential” (or with a similar legend) or is information, regardless of form, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, information relating to Coolfire’s intellectual property, its documentation, security policies and procedures, and any other information related to Coolfire’s business, products or services. For purposes of this Agreement, this Agreement and its terms and conditions shall be deemed “Confidential Information”. Notwithstanding the foregoing, “Confidential Information” shall not include information that (a) was already known to You at the time of disclosure by or on behalf of Coolfire as shown by Your written records; (b) was or is obtained by You from a third party not known by You to be under an obligation of confidentiality with respect to such information as shown by Your written records; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the parties; or (d) was or is independently developed by You without the use of the Coolfire’s Confidential Information as shown by Your written records.
Coolfire IP: means the Services, the Platform, API, Documentation, Core Applications, and any and all intellectual property owned or licensed by Coolfire and provided to Customer or any Authorized User and specifically including any and all improvements, advancements, modifications or derivative works made to, arising from or coming out of any of the Services, the Platform, API, the Documentation, Core Applications, or any and all. For the avoidance of doubt, Coolfire IP includes any aggregated statistics about the use and operation of the Services and any information, data, or other content derived from Coolfire’s monitoring of Customer’s access to or use of the Services or API, but does not include Service Data or any Application.
Core Applications: means the applications included in Coolfire’s core application suite purchased by Licensee, including, for example, Core Android, Core iOS, Core Web, Core Web Admin, and Core Web Signup.
Documentation: means Coolfire’s user manuals, handbooks, and guides relating to the Services and/or API provided by Coolfire to Licensee either electronically or in hard copy form/end user documentation relating to the Services or API.
End-User: means any person or that uses a Service or any Application.
Fees: means the license and/or service fees, if any, paid by Licensee for access and use of the Services, including the Platform and/or the Core Applications, any fees paid for any Professional Services performed and/or the API, as described on Your Order Form and the payment Fees for Paid Applications, if any.
Intellectual Property Rights: means patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights.
Internal Use: means the use of the API in connection with Licensee’s subscription to a Service for Licensee’s internal business purposes in accordance with this Agreement.
Malicious Code: means any malicious or harmful computer code, instructions or devices that erase data or programming, or infect, disrupt, damage, disable or shut down a computer system or any material component of such computer system and include, but is not limited to, viruses, worms, time bombs, Trojan horses, and ransomware.
Marks: mean “Coolfire”, “Coolfire Platform” “Ronin Platform™”, “Ronin”, and Coolfire’s other product and service names, trademarks, service marks, branding and logos, whether registered or unregistered, made available for use in connection with the Services and/or API pursuant to this Agreement.
Order Form: means the order form mutually agreed to by the parties that describes (i) the Coolfire products and service that You are licensing, accessing, and/or using under this Agreement and the Fees you are paying for such license, access, and use and/or (ii) the Professional Services that you are purchasing and the Fees that you are paying for such Professional Services.
Paid Application(s): mean(s) any Application(s) published by Licensee in which a Subscriber pays Licensee and/or Coolfire for a license to use, access and/or deploy such Application.
Payment Processor: means the third party payment processor that processes fees related to a Paid Application.
Platform: means either the Coolfire Platform or Ronin Platform™ (which are Coolfire IP), as applicable.
Professional Services: means the consulting, implementation, configuration, training or other professional services described on your Order Form to be performed by Coolfire for Licensee pursuant to this Agreement and the terms of the Order Form.
Publish/Published/Publishing: means the making of any Application available to any Subscriber other than Licensee or for any purpose other than for use by Licensee as a Subscriber for Internal Use.
Service Data: means electronic data, text, messages, communications or other materials submitted to and stored within a Service by You, your Agents and End-Users in connection with Your use of the Services.
Service(s): means the Coolfire applications, platforms, products and services that are licensed to You by Coolfire or accessed and used by You hereunder, including, without limitation, as applicable, the Core Applications, the Platform and all applicable Documentation. “Services” specifically exclude (i) Third Party Services and (ii) any additional features or associated services that are not provided under this Agreement. The names and descriptions of the Services or any individual Service may be changed by Coolfire from time to time without notice to You.
Service Period: means with regard to the given Service or API, the period of time during which You have a license and right to access and use such Service or API, all as described in the applicable Order Form.
Session(s): means the virtual containers within the Services that connect data, sensor information, real-time locations and Authorized Users together around an event and consists of an originating event, workflow, including response, actions, monitoring, and control, and a resolution.
Subscriber: means and refers to an individual or an entity that is subscribed for use of our Services.
Third Party Services: means third party products, applications, services, software, networks, systems, directories, websites, databases and information included with, integrated with or which a Service links to, or which You may connect to, use or enable in conjunction with Your access or use of a Service.
Trial Period: means the period described on Your Order Form when Coolfire is granting You access to and use of the Services and/or Core Applications designated on the Order Form on a limited basis for Licensee’s trial and/or testing and evaluation purposes.
2. PURPOSE AND LICENSES
Any Coolfire applications distributed in source code format are governed by the license terms distributed with such applications or, if no terms and conditions are distributed with such applications, the terms and conditions of this Agreement, including, but not limited to, the restrictions on use.
2.1 Trial Period Evaluation License. For a Licensee who uses the Platform, Core Applications, and API for a Trial Period as described on one or more Order Forms, subject to and conditioned upon compliance with the terms and conditions of this Agreement, to the extent and as described on Your Order Form, Coolfire hereby grants such Licensee, a non-exclusive, non-transferable (except as expressly allowed in Section 14), non-sublicensable, limited right to evaluate the Platform, Core Applications, and/or API, and any related Documentation delivered by Coolfire to the Licensee (collectively, the “Trial Services”) solely to enable Licensee to evaluate and determine if Licensee wishes to license the Platform, Core Applications, and/or API (as applicable) from Coolfire (the “Trial Purposes”) and on the terms and conditions set forth in this Agreement (for each of the Platform, Core Applications, or API, a “Trial License”). Each Trial License is valid for the length of time set forth on Your Order Form, starting from the date any such Trial Services are delivered to the Licensee or as otherwise agreed in writing, and may be unique to each Trial Service so delivered. Any use of the Trial License, Trial Services or any output derived therefrom for any purpose other than the Trial Purposes is expressly prohibited.
2.2 Platform License. Subject to and conditioned upon Licensee’s payment of the applicable Fees and compliance with the terms and conditions of this Agreement, to the extent and as described on Your Order Form, Coolfire hereby grants to Licensee a non-exclusive, non-transferable (except as expressly allowed in Section 14), non-sublicensable right to access and use the Platform and the associated Documentation for Licensee’s internal business purposes during the Service Period described on your Order Form, solely for use by Authorized Users in accordance with the terms and conditions for Licensee’ herein. For avoidance of doubt, Licensee may purchase external use licenses if Coolfire mutually agrees to the same in writing. The total number of Authorized Users or Sessions will not exceed the number for which the Platform has been purchased (i.e., the number of Authorized Users or Sessions which for Fees have been paid), except as expressly agreed to in writing by the parties and subject to any appropriate adjustment of the Fees payable hereunder.
2.3 Core Application License. For a Licensee who uses the Services and API through the Core Applications designated on an Order Form, subject to and conditioned upon compliance with the terms and conditions of this Agreement, to the extent and as described on Your Order Form, Coolfire hereby grants to Licensee a non-exclusive, non-transferable (except as expressly allowed in Section 14), non-sublicensable right to access and use the Core Application for Licensee’s internal business purposes during the Service Period described on your Order Form, solely for use by Authorized End Users in accordance with the terms and conditions for Licensee’ herein.
2.4 API License. Subject to this Agreement, including the restrictions set forth in Section 3, as applicable, to the extent and as described on Your Order Form(s), Coolfire grants to Licensee a non-exclusive, non-transferable (except as expressly allowed in Section 14), non-sublicensable, worldwide, revocable right and license during the Service Period described on your Order Form to: (a) access, use and make calls to the API to develop, implement and distribute Applications solely for use by Subscribers (i.e., persons or entities that have either subscribed to our Services or will be subscribing to our Services through the subscription to the Application in connection with the Services; (b) access, use, reproduce, distribute, and transmit Service Data to the extent held in the Services and not owned by You to the extent necessary to format and display it through the Applications; (c) use and display the Marks only to identify that the Service Data originates from the Services; and (d) if applicable, market and sell Applications through an App Market in accordance with this Agreement.
2.5 General API Policies. This Agreement and any and all restrictions and policies implemented by Coolfire from time to time with respect to the API as set forth in the Documentation (“General API Policies”) govern Licensee’s rights to use and access the API for the purposes of this Agreement, including use of the Services during a Trial period, use of the Core Applications, and developing, implementing and Publishing Applications. Licensee’s access to and use of the API is governed by this Agreement and the General API Policies.
2.6 Feedback License. Coolfire shall have a royalty-free, fully paid-up, worldwide, transferable, sublicensable, irrevocable and perpetual license to implement, use, modify, commercially exploit and/or incorporate into the Services and/or the API any suggestions, enhancement requests, recommendations or other feedback Coolfire receives from Licensee.
2.7 Promotional Use License. Licensee agrees that Coolfire may use the Licensee’s trademarks, service marks, trade names, logos, domain names, or other indicia of source in Coolfire’s lists of current or former customers; presentations to other customers, potential customers, investors, analysts; media releases; and other advertising, promotional, or marketing material, in each case without prior consent of Licensee.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1 General Restrictions and Responsibilities. All the licenses granted in Section 2 of this Agreement are explicitly conditioned on Licensee’s adherence to the following restrictions and compliance with its responsibilities as set forth herein.
(i) Restrictions on Use. Except as expressly allowed under this Agreement, Licensee shall not use the Services or API for any purposes beyond the scope of the access or licenses granted in this Agreement. Except as expressly authorized herein, Licensee shall not, at any time, directly or indirectly, and shall not permit any Authorized Users or Subscribers to: (a) copy, modify, or create derivative works of the Services, API, Professional Services or Documentation, in whole or in part (except as authorized with regard to Applications); (b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services, API, Professional Services or Documentation to any third party (except as authorized with regard to the Applications); (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (d) remove any proprietary notices from the Services, or Documentation; or (e) use the Services, API, Professional Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. Furthermore, except to the extent agreed to by Coolfire in writing, Licensee shall not, under any circumstances, through Applications or otherwise, repackage or resell the Services, or any part thereof, API, Professional Services or Service Data. Licensee shall not use or assist a third party (i) in using the API, or any Software in such a way to circumvent its security functions or other login requirements or (ii) from creating or using any application, coding or service that provides functionality similar to functionality provided by the Services, or any application service sold or licensed by Coolfire. Licensee is not permitted to use the API or any Service Data in any manner that does or could potentially undermine the security of the Services, Professional Services, the API, Service Data or any other data or information stored or transmitted using the Services. In addition, Licensee shall not, and shall not attempt to: (a) interfere with, modify or disable any features, functionality or security controls of the Services, or the API, (b) defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms for the Services or the API, or (c) reverse engineer, decompile, disassemble or derive source code, underlying ideas, algorithms, structure or organizational form from the Services, or the API.
(ii) Reservation of Rights. Coolfire reserves all rights not expressly granted to Licensee in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party any intellectual property rights or other right, title, or interest in or to the Coolfire IP.
(iv) Credentials. For avoidance of doubt, in order to use and access the API, Licensee will be granted API credentials (“Credentials”) by Coolfire. Licensee may not share its Credentials with any third party, shall keep such Credentials and all login information secure, and shall use the Credentials as Licensee’s sole means of accessing the API.
(v) Respect API. Licensee will respect and comply with the technical and policy-implemented limitations of the API and the restrictions of this Agreement. Without limiting the foregoing, Licensee shall not violate any explicit rate limitations on calling or otherwise utilizing an API.
(vi) Service Data. Licensee shall not make any modifications to any Service Data, other than as reasonably necessary to modify the formatting of such Service Data in order to display it in a manner appropriate for the pertinent Applications.
3.2 Trial Services Restrictions. Except as necessary for the Trial Purposes, Licensee agrees (a) not to modify, adapt, alter, translate, or create derivative works from the Trial Services; (b) not to merge the Trial Services with any other software or proprietary information; (c) not to sublicense, lease, rent, loan, otherwise transfer or allow access to, or use of, the Trial Services, the Trial License or any portion of any thereof to or by any third party; (d) not to work around any technical limitations in the Trial Services, use any tool to enable features or functionalities that are otherwise disabled in the Trial Services, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or underlying algorithms for the Trial Services; (e) not to otherwise access or use the Trial Services or any information, files or data stored in the Trial Services except as expressly allowed herein or as designated in Your Order Form; (f) not to disclose any information concerning the features or performance of the Trial Services to anyone other than Coolfire; (g) not to access or attempt to access any of Coolfire’s or any other user’s files, information, systems, programs or data unless You are granted the right to use or access the same under this Agreement, (h) not to permit any third party to benefit from the use or functionality of the Trial Services; (i) not to perform or attempt to perform any action(s) or task(s) that could or would (1) interfere with the proper working or use of the Trial Services or any other party’s access to, or use of, the Trial Services; (2) prevent any party’s access to the Trial Services; or (3) impose any unreasonable or disproportionately large load on the Trial Services system’s infrastructure; and (j) not to use or access the Trial Services in violation of any applicable law or regulation.
3.3 Licensee Application Restrictions.
(i) Licensee’s Applications shall not substantially replicate products or services offered by Coolfire or offered by others using the Platform. Subject to the preceding sentence and the parties’ other rights and obligations under this Agreement, each Party agrees that the other Party may develop and publish applications that are similar to or otherwise compete with such Party’s applications. Applications may not use or access the API or a Service in order to monitor the availability, performance, or functionality of any of the API or a Service or for any similar benchmarking purposes.
(ii) Responsibility for Applications. Licensee acknowledges that Licensee is solely responsible, and that Coolfire has no responsibility or liability of any kind, for the content, development, operation, support or maintenance of Applications. Without limiting the foregoing, Licensee will be solely responsible for (a) the technical installation and operation of its Applications; (b) creating and displaying information and content on, through or within its Applications; (c) ensuring that its Applications do not violate or infringe the intellectual property rights of any third party; (d) ensuring that Applications are not offensive, profane, obscene, libelous or otherwise illegal; (e) ensuring that its Applications do not contain or introduce Malicious Code into a Service, an API, any Service Data or other data stored or transmitted using the Service; and (f) ensuring that its Applications are not designed to or utilized for the purpose of spamming any Coolfire subscribers, Agents or End-Users.
(iii) Service Data in Applications. Licensee may only make any modifications to Service Data as reasonably necessary to modify the formatting of such Service Data in order to display it in a manner appropriate for the pertinent Applications.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS
(ii) Licensee Representations. Licensee represents, warrants and covenants that (a) its Licensee Marks and the activities with respect to Licensee Marks undertaken by Coolfire in accordance with the terms of this Agreement, do not and will not violate, misappropriate or infringe upon the Intellectual Property Rights of any third party; (b) Licensee will comply with all applicable local, state, national and international laws and regulations, including, without limitation, all applicable export control laws, all privacy and data protection laws, and maintain all licenses, permits and other permissions necessary to meet its obligations under this Agreement; (c) it has all right, power and authority to grant the licenses granted to Coolfire herein; and (f) it acknowledges Coolfire’s right to charge the Fees as provided herein.
4.2 Licensee Applications.
(i) Data Outside the Service. To the extent Licensee’s Applications transmit Service Data outside a Service, Licensee represents and warrants that Licensee has notified all users of such Applications that their Service Data will be transmitted outside the Service and that Coolfire is not responsible for the privacy, security or integrity of such Service Data. Licensee further represents and warrants that to the extent Licensee’s Applications store, process or transmit Service Data, neither Licensee nor Licensee’s Application will, without appropriate prior user consent or except to the extent required by applicable law (a) modify the content of Service Data in a manner that adversely affects the integrity of Service Data; (b) disclose Service Data to any third party; or (c) use Service Data for any purpose other than providing the Application functionality to users of such Application.
(ii) Licensee Representations. Licensee represents, warrants and covenants that (a) its Applications, the use of such Applications by its users, and the activities with respect to such Applications undertaken by Coolfire in accordance with the terms of this Agreement, do not and will not violate, misappropriate or infringe upon the Intellectual Property Rights of any third party; (b) Licensee will comply with all applicable local, state, national and international laws and regulations, including, without limitation, all applicable export control laws, all privacy and data protection laws, and maintain all licenses, permits and other permissions necessary to develop, implement and Publish its Applications; (c) its Applications do not and will not contain or introduce any Malicious Code into the Services, the API, any Service Data, or other data stored or transmitted using any Services; and (d) its Applications are not designed to or utilized for the purpose of spamming any Subscribers, Agents or End-Users.
(iii) Applications Terms of Service. Licensee represents, warrants and covenants that it will include the mandatory terms of service provisions listed in Section 4.2(iv) below (“Mandatory Service Terms”) in the terms of service and/or license agreements(s) (“App Terms of Service”) that govern use of its Applications by Subscribers. Such Mandatory Service Terms are a minimum set of provisions and Licensee may have more exhaustive App Terms of Service. Licensee may change the term references to match the terms used in its App Terms of Service.
(iv) Mandatory Service Terms:
(a) Licensee is the licensor of the Application and Coolfire is not a party to the App Terms of Service but will be a third party beneficiary of all waivers of damages and/or claims and all limitations of liability in the App Terms of Service.
(b) Licensee shall ensure that no Subscriber may use or utilize any Application without having an active license to a Service. As such, except as otherwise limited by any App Terms of Service imposed or required by the Licensee, Licensee grants Subscriber a perpetual, worldwide, non-exclusive, non-transferable and non-sublicensable license to access, deploy, use and integrate the Application only in connection with Subscriber’s active license for a Service.
(d) Subscriber may not modify, reverse engineer, decompile or disassemble the Application in whole or in part, or create any derivative works from or sublicense any rights in the Application, unless otherwise expressly authorized in writing by Licensee, which authorization may not be granted unless and until Licensee shall have been granted permission by Coolfire.
(e) Each of Subscriber and the Licensee shall maintain all rights, title and interest in and to all its and its licensors (including, without limitation, the Coolfire) respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “IP Rights”). The rights granted to Subscriber to use the Application under these App Terms of Service do not convey any additional rights in the Application or any Coolfire IP, or in any IP Rights associated therewith. Subject only to limited rights to access and use the Application as expressly stated herein, all rights, title and interest in and to the Application and all hardware, software and other components of or used to provide the Application, including all of the Coolfire IP and all related IP Rights, will remain with and belong exclusively to the Licensee or its licensors, as applicable. Licensee shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Application, the Coolfire IP or otherwise use any suggestions, enhancement requests, recommendations or other feedback it receives from Subscriber.
-End of Mandatory Service Terms-
5. PROFESSIONAL SERVICES
Subject to the terms and conditions of this Agreement and the applicable Order Form, Coolfire will perform the Professional Services described on the Order Form in exchange, among other things, for the payment of the Fees for such Professional Services as described on the applicable Order Form. Licensee hereby acknowledges and agrees that all such Professional Services relate to and all developments, improvements, or inventions arising therefrom are Coolfire IP, including, without limitation, any modifications, advancements or derivative works of any existing Coolfire IP in such deliverables or Professional Services, and that Coolfire shall own any and all new products modifications, advancements or derivative works arising from any Professional Services or forming part of any deliverables (“Developments”). Licensee hereby assigns the copyright and all other right, title and interest in the Development, including, but not limited to, any and all intellectual property created, contained or forming a part of any of the foregoing to Coolfire in the United States and elsewhere throughout the world. Upon final delivery to Licensee, any and all Coolfire IP in any deliverables shall be licensed to Licensee as part of the Core Applications pursuant to Section 2.3.
Subject to the limited licenses expressly provided in this Agreement, nothing in this Agreement transfers or assigns to Coolfire any of Licensee’s intellectual property rights in its Applications, if any, or Licensee’s Marks or other technology, and nothing in this Agreement transfers or assigns to Licensee any of Coolfire’s intellectual property rights in the Services, Professional Services, the API, the Marks, or Coolfire’s other technology or the respective intellectual property rights in any Service Data of Coolfire or its Subscribers, Agents or End-Users.
This Agreement does not entitle Licensee to any support for the Services, or the API, unless Licensee makes separate arrangements with Coolfire for such support. Licensee is solely responsible for providing all support and technical assistance to End-Users and Subscribers. Licensee acknowledges and agrees that Coolfire has no obligation to provide support or technical assistance Licensee’s End-Users or Subscribers and Licensee shall not represent to any such users or subscribers that Coolfire is available to provide such support. Licensee agrees to use commercially reasonable efforts to provide reasonable support to End-Users and Subscribers. Licensee is solely responsible for providing all support and technical assistance to End-Users of its Applications and Subscribers who access, deploy and/or purchase its Applications. Licensee acknowledges and agrees that Coolfire has no obligation to provide support or technical assistance to the users of Applications and Licensee shall not represent to any such users that Coolfire is available to provide such support. Licensee agrees to use commercially reasonable efforts to provide reasonable support to users of its Applications.
9.1 General License and Services Fees. The license and services fees for the Services, Professional Services, API and Documentation and the payment schedule for such fees are set forth in Your Order Form(s). You hereby commit to pay all of such license and service fees according to the payment schedule specified in the applicable Order Form. Except as expressly provided otherwise in this Agreement, including, without limitation, with regard to a Trial License, You acknowledge that (i) Your payment commitment is binding regardless of any termination or cancellation of this Agreement prior to the date hereunder, (ii) all payments are non-refundable, and (iii) in the event of any such earlier termination, all license and services fees that You have committed to pay for the Term but have not yet paid shall be accelerated and shall become immediately due and payable.
9.2 Paid Application Purchase Fees. In addition to any other Fees, if Licensee submits a Paid Application, such application is approved by Coolfire, and Licensee follows the required registration and listing steps contained herein and as otherwise communicated to Licensee, then Licensee may list the Paid Application on an App Market and charge Subscribers to purchase the Paid Application. Fees collected from the sale of Licensee’s Paid Application (“Purchase Fees”) must be processed through the Payment Processor account Licensee registered for in connection with listing the Paid Application. Purchase Fees shall be processed from the Subscriber to Licensee through the Payment Processor. Purchase Fees shall be transferred to Licensee’s Payment Processor account pursuant to the terms of the agreement entered into between Licensee and Payment Processor. Coolfire reserves the right to charge fees to Licensee related to any aspect of an App Market at its sole discretion either as indicated to Licensee at time of listing of the Paid Application or upon ten (10) days’ notice to Licensee. Continued listing of the Paid Application on the App Market after notice of Coolfire’s collection of such fees, shall be deemed consent to the imposition and collection of such charges.
Licensee may from time to time, gain access to Confidential Information. Licensee may use Confidential Information only to the extent necessary to exercise its rights under this Agreement. Subject to the express permissions set forth herein, Licensee may not disclose Confidential Information to a third party without the prior express consent of Coolfire, provided in writing or by email. Without limiting any other obligation of Licensee under this Agreement, Licensee agrees that it will protect Confidential Information from unauthorized use, access, or disclosure in the same manner that Licensee would use to protect its own confidential and proprietary information of a similar nature and in any event with no less than a reasonable degree of care.
11. DISCLAIMER OF WARRANTIES.
ALL ASPECTS OF THE SERVICES, CORE APPLICATIONS, THE PROFESSIONAL SERVICES AND THE API, INCLUDING ALL HARDWARE, SERVER, AND NETWORK COMPONENTS/EQUIPMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND COOLFIRE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT COOLFIRE DOES NOT WARRANT THAT THE SERVICES, CORE APPLICATIONS, PROFESSIONAL SERVICES OR API WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS CODE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM COOLFIRE OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
12. LIMITATION OF LIABILITY
(i) UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL COOLFIRE, OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO YOU, YOUR AFFILIATES, YOUR END USERS, YOUR AGENTS, YOUR END USERS OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER LOSS OR DAMAGES INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, CORE APPLICATIONS, THE SERVICES OR THE API, REGARDLESS OF WHETHER SUCH PERSON OR ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
(ii) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, COOLFIRE’S AGGREGATE LIABILITY TO LICENSEE OR ANY THIRD PARTY ARISING OUT THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF (I) ONE HUNDRED U.S. DOLLARS ($100.00) OR (II) THE AGGREGATE AMOUNT OF FEES PAID BY TO COOLFIRE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE. ANY CLAIM BROUGHT AGAINST THE COOLFIRE OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE API, THE SERVICES OR SERVICES DATA MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE FIRST EVENT OR OCCURRENCE GIVING RISE TO THE CLAIM.
12.2 Trial License.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL COOLFIRE, OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO YOU, YOUR AFFILIATES, YOUR END USERS, YOUR AGENTS, YOUR END USERS OR ANY THIRD PARTY FOR DIRECT DAMAGES (EXCLUDING CLAIMS ARISING FROM (A) COOLFIRE’S WILLFUL MISCONDUCT, AND (B) BREACH OF CONFIDENTIALITY) INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THE TRIAL LICENSE, REGARDLESS OF WHETHER SUCH PERSON OR ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES. LICENSEE ACKNOWLEDGES AND AGREES THAT THIS LIMITATION OF LIABILITY ARE FAIR AND EQUITABLE GIVEN THAT THIS IS A TRIAL PERIOD.
12.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to Licensee. IN THESE JURISDICTIONS, COOLFIRE’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. The limitations set forth in this Section 11 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
Licensee will indemnify and hold Coolfire harmless against any claim brought by a third party against Coolfire arising from or related to any breach of an obligation, representation, warranty, covenant or other provision of this Agreement by Licensee, its Agents or any of its End Users or any matter which Licensee has expressly agreed to be responsible pursuant to this Agreement.
14. TERM AND TERMINATION
14.1 Generally. Except for a Trial Term, as applicable, this Agreement shall commence on the Effective Date and will remain in effect until all of the Service Periods for the Services and API licensed, access or used hereunder have expired unless sooner terminated pursuant to this Section 13 (the “Term”). Either Party may terminate this Agreement at any time, for any reason, or for no reason including, but not limited to, if Licensee violates any provision of this Agreement. Any termination of this Agreement shall also terminate the licenses granted to Licensee hereunder. If Licensee violates any provision of this Agreement, Coolfire may terminate this Agreement, and all licenses and rights granted to Licensee by Coolfire, immediately in its sole discretion. Upon termination of this Agreement for any reason, Licensee shall cease using, and either return to Coolfire, or destroy and remove from all computers, hard drives, networks, and other storage media, all copies of any materials licensed pursuant to this Agreement and any Confidential Information in Licensee’s possession, and shall certify to Coolfire that such actions have occurred. Sections 3, 4, 6, and 8-18 shall survive termination of this Agreement.
14.2 Trial Term. Your right to use the Trial Services for the Trial Purposes will commence on the date that Coolfire gives you access to the Trial Services and will conclude at the end of Trial Period, unless earlier terminated pursuant to this Section (the “Trial Term”). Either party may terminate the Trial Period at any time, for any reason, or for no reason including, but not limited to, if Licensee violates any provision of the Trial License. Any termination of the Trial Period shall also terminate Trial License. If Licensee violates any provision of this Agreement, Coolfire may terminate the Trial Term, the Trial License, and all licenses and rights granted to Licensee by Coolfire, immediately in its sole discretion. Upon termination of the Trial Period for any reason, Licensee shall cease using, and either return to Coolfire, or destroy and remove from all computers, hard drives, networks, and other storage media, all copies of any materials licensed pursuant to the Trial License and any Confidential Information in Licensee’s possession, and shall certify to Coolfire that such actions have occurred.
15. ASSIGNMENT; ENTIRE AGREEMENT; WAIVER
15.1 General. Licensee may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Licensee’s rights under this Agreement or delegate performance of Licensee’s duties under this Agreement without Coolfire’s prior consent, which consent will not be unreasonably withheld. Coolfire may, without Licensee’s consent, assign this Agreement to any Affiliate or in connection with any merger or change of control of Coolfire or the sale of all or substantially all of its assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
17. RELATIONSHIP OF THE PARTIES
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
All notices to be provided by Coolfire to Licensee under this Agreement may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”) or U.S. mail to the contact mailing address provided by Licensee to Coolfire; or (b) electronic mail to the electronic mail address provided for the Account owner related to Your subscription to the Service. Licensee must give notice to Coolfire in writing by Courier or U.S. Mail to the following address: Coolfire Solutions, Inc., Attn: Legal, 415 N. 10th Street, Suite 300, St. Louis, MO 63101 USA. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.
19. GOVERNING LAW; JURISDICTION
This Agreement is governed by and construed in accordance with the internal laws of the State of Missouri without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement, the Coolfire IP, the Services, the Professional Services, the API or the Documentation shall be instituted exclusively in the federal courts of the United States located in the City of St. Louis, Missouri or the courts of the State of Missouri located in the County of St. Louis. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.