This Software Service Agreement (the “Agreement”) is between you (the “Customer”) and TAC Insight, LLC (“TAC”), referred to individually each as a Party or collectively as the Parties.
TAC is the owner of certain proprietary material ticketing and management software called the Fast-Weigh suite of software products (the “Software”). TAC sells subscriptions for customers to access and use the Software via a hosted website, access to which will be provided to the Customer by TAC (the “Software Services”).
TAC also provides a desktop application and mobile application that access the Software Services (“Applications”).
TAC will make access to the Software Services and Applications available to Customer upon execution of an order by Customer (the “Order”) and upon payment of any required initial fees identified in the Order.
Customer desires to use the Software Services for Customer’s business purposes, including use by Customer’s employees and other affiliates (collectively the “Authorized Users”) pursuant to the terms and conditions of this Agreement.
The Parties agree as follows:
1. Use of the Software Services: Subject to the terms and conditions of this Agreement, TAC grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, personal right to access and use and permit Authorized Users to access and use the Software Services solely for their internal business purposes. The Software Services will not be used by Customer or by any Authorized Users for, or on behalf of, any third parties that are not authorized under this Agreement. Customer will use commercially reasonable efforts to ensure that Authorized Users use the Software Services in accordance with the terms and conditions of this Agreement. Customer acknowledges that its right to use the Software Services will be web-based only pursuant to the terms of this Agreement and that the Software will not be installed on any servers or other equipment owned or controlled by Customer or otherwise provided to Customer, other than as allowed in the Application license.
2. Application License. Use of Applications by Customer or Authorized Users is subject to the end user license agreement of the Applications.
3. Initial Fees and Term: Customer will pay TAC the fees specified on the Order form for a period of twelve (12) months (the “Initial Term”). Customer shall pay either (i) a recurring subscription amount for a tier of annual tickets as set forth in the Order (the “Subscription Fee”), or (ii) a per-ticket price as set forth in the Order (“Per Ticket”). If the Customer has elected Per-Ticket then Customer shall pay at least 80% of the estimated annual ticket volume identified in the Order per year (“Per Ticket Fee”). The Per Ticket Fee and Subscription Fee are due at the beginning of the Initial Term and each subsequent Term, unless the Order identifies other payment terms. Customer shall also pay any initial fees including any consulting, setup, and installation fees identified on any Order or stated separately (collectively with the Per Ticket Fee and Subscription Fee, “Fees”), pursuant to the terms specified on the Order. If Customer has not paid all Fees due TAC in accordance with the terms of this Agreement and any Order, a monthly finance charge equal to the lesser of (a) 1.5% per month, or (b) the highest amount permitted by law, shall accrue and be payable each month until paid in full. The waiver of a finance charge or any portion thereof shall not be deemed to be a waiver of any future finance charges. Customer shall be liable to TAC for any and all costs and expenses incurred by TAC, including without limitation attorneys’ fees and expenses, in collection of any past due amounts hereunder.
4. Overage and True-Up. If Customer is paying a Subscription Fee and exceeds the number of annual tickets specified in the subscription tier on the Order during a Term, then Customer shall pay the per ticket rate specified in the Order for all tickets above the subscription tier. If Customer is paying Per Ticket then Customer shall pay the per ticket rate specified in the Order for all tickets that are above 80% of the estimated annual volume.
5. Renewal: Subject to early termination as set forth in this Agreement, after the expiration of the Initial Term, this Agreement will automatically renew for subsequent one (1) year periods unless either Party provides written notice of its election not to renew this Agreement at least thirty (30) days prior to the renewal date. If Customer exceeds the annual ticket volume in the 12 months prior to the renewal of this Agreement, TAC reserves the right to automatically move Customer to a higher ticket volume for the next renewal. The Subscription Fee or Per Ticket Fee of any renewal term after the Initial Term will be based on the then-current published prices of the Software Services as of the renewal date as defined on the Order. The Initial Term and any renewal term are collectively referred to as the “Term.”
6. Cessation of Use: Upon termination of this Agreement for any reason, all rights granted to Customer will immediately terminate, and the Customer will cease using the Applications, Software and the Software Services and will take reasonable steps to prohibit Authorized Users from further use of the Applications, Software and Software Services. Upon termination, TAC will retain any of Customer’s data for a period of thirty (30) days from the date of termination. TAC will provide access to Customer’s data for retrieval by Customer for those thirty (30) days, after which TAC will no longer be responsible for any of Customer’s data associated with the Software and the Software Services.
7. Support and Maintenance: TAC will maintain the Applications, Software and the Software Services and provide all necessary patches and fixes to the Applications, Software and the Software Services at no additional cost. Such maintenance will not include any additional functionality or custom programming unless otherwise agreed between the Parties.
8. Hardware: Customer will be responsible for purchasing any necessary hardware for use of the Applications, Software and the Software Services by Customer. TAC may recommend hardware or specifications for hardware that is suitable for use with the Applications, Software or Software Services but TAC is not responsible for the purchase, reliability, or maintenance of any hardware required for use of the Applications, Software and Software Services. TAC may sell Customer hardware for use with the Applications, Software and Software Services, and TAC’s liability and Customer sole and exclusive remedy for any issue with such hardware is defined in the warranty that TAC provided with such hardware.
9. Intellectual Property: All rights, title, and interest in and to the Applications, Software, and all trade names, trademarks, trade secrets, proprietary information and other intellectual property of TAC (collectively the “TAC IP”), is, and at all times will remain, the sole exclusive property of TAC. Except the right to use the Applications, Software and the Software Services as expressly provided herein, this Agreement does not grant to Customer any rights to, or in, any TAC IP. Customer will not, either directly or indirectly, copy, modify, duplicate, create derivative works from, mirror, republish, reverse compile, disassemble, reverse engineer, download, transmit, or distribute all or any portion of the Applications or Software in any form or media or by any means, and will not authorize or knowingly permit any Authorized Users to do the same. Customer may not wrap the Software or Applications graphical user interface or application programming interface in another interface. Customer may not sell or license access to the Applications, Software, or Software Services by itself or as a part of a service or product.
10. Warranty Disclaimer: Except as provided herein and in Paragraph 7 above, the Applications, Software, and Software Services are provided on an “as-is” and “as-available” basis and TAC makes no representation, warranty, or guarantee as to the reliability, timeliness, quality, suitability, truth, availability, accuracy, or completeness of the Applications or Software. TAC SPECIFICALLY DISCLAIMS, ALL EXPRESS AND IMPLIED WARRANTIES OF EVERY KIND RELATING TO THE APPLICATIONS, SOFTWARE, AND SOFTWARE SERVICES (INCLUDING, WITHOUT LIMITATION, ACTUAL AND IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT). TAC will make commercially reasonable efforts to ensure that the Applications and Software are free of any viruses, Trojan horses, worms, and any other malicious software. Notwithstanding the foregoing, TAC does not represent or warrant that: (1) the use of the Applications or Software will be secure, uninterrupted or error-free or operate in combination with any other hardware, software, system or data; or (2) the Applications or Software will meet Customer’s requirements or expectations. Customer accepts sole and complete responsibility for: (1) the selection of the Applications, Software and the Software Services to achieve Customer’s intended results; (2) use of the Applications, Software and the Software Services; (3) the results obtained from the Applications, Software and Software Services; and (4) the terms of any contracts between Customer and Authorized Users. Customer will not assert any claims against TAC based on theories of negligence, gross negligence, strict liability, fraud, or misrepresentation, and Customer will defend TAC from any demand, claim, and indemnify and hold TAC harmless from any and all losses, liabilities, costs, expenses, and damages, including reasonable attorneys’ fees, directly or indirectly resulting from Customer’s use of the Applications, Software and the Software Services.
11. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, in no event will TAC be liable for any special, incidental, indirect, consequential, punitive, exemplary or other damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of the use of or inability to use the Applications, Software or the Software Services, whether based upon contract, warranty, tort, negligence, strict liability or otherwise, even if TAC has been advised or should have known of the possibility of such damages. Without limiting the foregoing or any other limitation of liability in this Agreement, in any event, under no circumstances, regardless of the form of action, whether for breach of contract, warranty, negligence, strict liability in tort, statutory, or otherwise, will TAC be liable to Customer for any losses, liabilities, costs, expenses or damages in any amount exceeding the Subscription Fee actually paid by Customer to TAC in the prior twelve-month period. TAC shall have no liability whatsoever to Customer for any claims of patent, copyright, or other intellectual property right infringement or misappropriation of trade secrets made against Customer incident to the use of the Applications, Software or Software Services.
12. Suspension. If Customer does not pay the Fees owed under this Agreement or any amounts owed under another agreement between Customer and TAC when due then Customer’s use of the Applications and Software Services may be suspended by TAC until the Fees or other amounts are paid in full. If Customer’s use of the Applications or Software Services is suspended, Customer still owes all Fees for the entire Term.
13. Feedback. TAC has not agreed to and does not agree to treat as confidential any Feedback (as defined below) you provide to TAC, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict TAC’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting you. (“Feedback” means any suggestion or idea for improving or otherwise modifying the Applications, Software or Software Services.)
15. User ID and Password. During the registration process Customer created a user ID and password that allows you to have access to the Software Services. Customer has also created user accounts to allow Authorized Users allowed under Customer’s Order to access the Software Services. The additional users must be employees, customers, or contractors of Customer. Customer will not provide its user ID or password to access the Software Services to any other person or entity other than Authorized Users, or allow any other person or entity to access Software Services under Customer’s user ID and password. Customer agrees that Customer is solely responsible for any actions that occur under Customer’s user ID and password or the user accounts Customer has created. In the event that any of the user ID’s and passwords Customer created become known by a third party Customer agrees to take all available precautions to prevent the user ID and password from being used by an unauthorized individual, including, but not limited to, disabling the user ID and Customer agrees to notify TAC immediately.
16. Default: Customer will be in default of this Agreement if Customer fails to make any payment when due and fails to cure the default within five (5) business days after receipt of written notice thereof from TAC. Except for Customer defaults described above, either Party will be in default of this Agreement if the Party is in material breach of this Agreement and fails to cure such breach within ten (10) business days after receipt of written notice thereof from the non-breaching Party. If a Party is in default, the non-breaching Party may terminate this Agreement or seek any other remedies available at law or in equity, except as otherwise provided in this Agreement. In the event Customer breaches or attempts to breach any provisions of this Agreement, TAC will have the right, in addition to such other remedies that may be available, to injunctive relief enjoining such breach or attempted breach.
17. Confidentiality: Each Party will use commercially reasonable efforts (but in no case less than the efforts used to protect its own proprietary, confidential, or non-public information) to protect all proprietary, confidential, or non-public information pertaining to or in any way connected to the Applications, Software, the Software Services, or Customer’s customer list, pricing or other confidential business information (collectively the “Confidential Information”). Neither Party will disclose or publicize Confidential Information of the other Party without such Party’s prior written consent. The confidentiality obligations will expire three (3) years after the date of termination of this Agreement except that the terms of this Section will continue in effect with respect to trade secrets for so long as they remain trade secrets under applicable law. Notwithstanding the foregoing, the restrictions on disclosure herein will not apply to information (1) generally available to the public at the time of disclosure, or later available to the public other than through fault of the Customer; (2) already known to the Customer prior to disclosure pursuant to this Agreement; (3) obtained at any time lawfully from a third party under circumstances permitting its use or disclosure to others; or (4) required by law or court order to be disclosed.
18. Taxes: Customer is responsible for payment of any and all applicable taxes on the purchases of licenses, software hosted services, programming services, training, maintenance, support, and hardware invoices by TAC related to this Agreement. TAC may bill Customer for any taxes that TAC believes it is required to collect from the Customer. If TAC is subsequently assessed a tax by a governmental agency on purchases made or services provided under this Agreement, Customer agrees to provide evidence of payment of such tax to the governmental agency, or to pay such tax including any interest or penalties to TAC. If Customer does not make such payment of taxes or provide evidence of payment of such taxes to TAC or governmental agency within 30 days of written request from TAC, then Customer agrees to pay taxes and all additional costs of collection, including attorney and other collection fees incurred by TAC. Provided that TAC is solely responsible for TAC’s income, property, and employee taxes.
19. Revision to Agreement: The terms of this Agreement may be periodically revised and updated by TAC upon issuance of updates or new versions of the Applications, Software or changes to the Software Services. Continued use of the Applications, Software and Software Services by Customer will be deemed to be an acceptance of the revised Agreement.
20. No Partnership, Joint Venture, or Agency: Nothing in this Agreement is intended to or will operate to create a partnership or joint venture between the Parties, or authorize either Party to act as an agent for the other, and neither Party will have the authority to act in the same or on behalf of or otherwise bind the other Party in any way.
21. Completeness. This Agreement, any Orders, and any license agreements associated with Applications set forth the entire understanding between TAC and Customer with respect to the matters set forth herein and supersedes all previous agreements and representations with respect to Applications, the Software, and Software Services. In the event of a conflict between this Agreement, any Orders, and Application license agreements, the provisions in this Agreement will govern, followed by the provisions in any Application license agreement. The recitals to this Agreement are incorporated by reference.
22. Miscellaneous: This Agreement is governed by the laws of the State of Tennessee without regard to its conflict of law principles. The sole and exclusive venue for all disputes hereunder is the federal or state courts located in Knox County, Tennessee. The parties’ consent to the jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defenses otherwise available. Failure to enforce any rights granted herein shall not be deemed a waiver as to subsequent enforcement of such rights. The prevailing party in any action filed under this Agreement or related to the Applications, Software or Software Services is entitled to reasonable attorney’s fees and costs.
If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that part of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement.
Neither the rights nor obligations arising under this Agreement are assignable by Customer. Any attempt to assign rights or obligations under this Agreement will be void and without effect unless otherwise specified above.
23. Acknowledgment: CUSTOMER ACKNOWLEDGES HAVING READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.