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Creative Vision Studio does not offer a refund for the purchase of Bankcard Pros CRM Account Tracking Software, all sales are final. In no way are the monthly recurring fee for training, support, and web hosting services a part of your purchase price for the software, nor is the monthly recurring fee for training, support, or web hosting included in the purchase price for the software. The purchase price for Bankcard Pros CRM Account Tracking Software is exclusively for the software only.
If Customer makes payment via credit card, debit card, business check card, etc., Customer hereby acknowledges the credit card charge is non-refundable and cannot be charged back under any circumstances, and should Customer attempt to chargeback the credit card transaction for any reason, Customer agrees to be liable to CVS for any liquidated damages plus any costs and reasonable attorneys’ fees incurred in the collection process. We do not provide a refund for products or services delivered including Bankcard Pros CRM Account Tracking Software, monthly web hosting, creative design, or web design projects. If customer chooses not to pay the monthly fee, the customer fully understands that customer service, technical support, training, as well as software updates will not be available and provided to you. The monthly fee provides up to 5 hours per month of software training and customer support and includes unlimited minor updates, patches, and fixes. For complete options and pricing of training and support fees, refer to EXHIBIT B of this contract agreement.
Customer understands that they are responsible for managing, setting up, and configuring the software on their own. The customer is responsible for reading the training manual and the setup and configuration check list on their own. Customer can go to the following link to download the training manual and setup checklist: http://bankcardpros.com/html/training_manual.html. Customer also acknowledges that the Bankcard Pros CRM Account Tracking Software is sold “as is” based on what is offered on our online demo website at www.bankcardpros.net and available for you to fully review and test drive so you can fully understand what you are receiving before you make a purchase. Any additional customization or modification requests will be additional project and customer will be billed at $55.00 per hour.
By signing below, customer acknowledges receipt of the Bankcard Pros CRM Account Tracking software and any other products and services listed in this contract and the invoice to their full satisfaction.
Cancellation Policy
Regarding, the monthly recurring fee for website hosting, support, and training, Customer must provide a 30-day written notice to cancel monthly web hosting or software support and training fees. Cancellation request may be made via email to support@bankcardpros.com and Customer must receive a confirmation # for verification purposes of the cancellation request.
Warranty
The services, products, information, materials, and functionality on any product or service provided by Creative Vision Studio are provided "AS IS" and without warranties of any kind, either express or implied, including but not limited to the warranties of non-infringement of third party rights, title, merchantability, fitness for a particular purpose and freedom from computer virus or other harmful components, is given in conjunction with the information, materials, products and services. Neither Creative Vision Studio nor any of its affiliated companies warrant the accuracy, adequacy, completeness or timeliness of information, materials, products and services, or functionality on a Creative Vision Studio site or the error free use of a Creative Vision Studio site or product/service.
Legal
Limited License. Creative Vision Studio hereby grants to Customer a perpetual, revocable (but only as provided herein), worldwide, nonexclusive, non-sublicensable, and non-transferable license, under intellectual property rights owned or licensed by Creative Vision Studio, to use the Software defined and described above provided however that: such license is subject to all obligations and restrictions imposed on Customer in this Agreement; such license extends only to Customer’s employees and contractors, but only to the extent that such employees and contractors use the Software in the operation of the business of Customer, and for no other purpose whatsoever; such license extends only to Customer use of the Software solely to perform the functions specified herein, and in compliance therewith, and while exercising such license, Customer shall treat the Software as Creative Vision Studio’ Confidential Information under this Agreement.
Right to Modify. Customer shall have a right to make modifications to the Services either by utilizing Creative Vision Studio to provide such services or utilizing some other third party provider. Any new versions or revisions of the Services performed by Customer shall be the sole and absolute property of Customer.
Limitations on Rights Granted. Except as expressly provided to the contrary in this Agreement, Customer shall not, and shall not knowingly cause or permit any non-party, to use or reproduce the Software. Customer shall not, and shall not knowingly cause or permit any non-party, to disassemble, decompile, decrypt, extract, reverse engineer, prepare a derivative work based upon, distribute, or time share the Software. Except as expressly authorized herein, Customer may not sell, rent, lease, assign, sublicense, transfer, modify, alter, or time share the Software.
Independent Contractors. The relationship of Creative Vision Studio and Customer is that of independent contractors. Neither Customer nor its employees, consultants, contractors or agents are agents, employees, partners or joint ventures of Creative Vision Studio, nor do they have any authority to bind Creative Vision Studio by contract or otherwise to any obligation. They will not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
Compliance With Laws. Customer will comply with all applicable international, national, state, regional and local laws and regulations in performing its duties hereunder and in any of its dealings with respect to the Software.
THE AGENT’S RESOURCE
Providing the Software. During the term of this Agreement, Creative Vision Studio shall provide the Software and use its commercially reasonable efforts to provide the Software and maintain it in an uninterrupted and error-free fashion consistent with its practices in effect as of the date of this Agreement. However, the parties acknowledge that the Software is computer based services which may be subject to outages and delay occurrences. In such an event, Creative Vision Studio shall use its reasonable commercial efforts to diligently and promptly remedy any and all material interruptions. Creative Vision Studio will further provide adjustment, repairs and replacements within its capacity from time to time that are necessary to enable the Software to perform its intended function in a reasonable manner. Nonetheless, Creative Vision Studio will not be liable in any manner for any interruptions, outages, or other delay occurrences relating to the Software.
Customer will be responsible for making daily backups of database system and the software files on separate computer workstation, safe and secure from duplication or distribution of any employee or outside individual. If hardware fails resulting in complete loss of entire software and all files, Creative Vision Studio will install new software and restore database backup within 48 hours after you have restored the hardware to working condition.
TERM AND TERMINATION
Term. The initial term of this Agreement shall be for a period of three (5) years, commencing on the date first set forth below. This Agreement shall thereafter be automatically renewed for additional terms of three (5) year each unless either party notifies the other no later than thirty (30) days prior to the end of the current term that it does not wish to renew this Agreement.
The initial term for the monthly fee provides 5 hours of software support, customer service, training, updates, and upgrades shall be for a period of one (1) year. This support shall automatically be renewed for additional terms of one (1) year each unless either party notifies the other no later than thirty (30) days prior to the end of the current term that it does not wish to renew the support provided by Creative Vision Studio.
Default. Either party shall have the right to terminate this Agreement at any time if: the other party breaches any of the provisions of this Agreement and fails to cure such breach within thirty (30) days of its receipt of written notice thereof from the non-breaching party; or the other party (i) fails to pay its debts or perform its obligations in the ordinary course of business as they mature; (ii) becomes the subject of any voluntary or involuntary proceeding in bankruptcy, liquidation, dissolution, receivership, attachment or assignment or composition for the benefit of creditors.
Regulatory Demand. If any federal or state regulatory agency having jurisdiction over the subject matter of this Agreement makes a demand that either Creative Vision Studio or any of its vendors discontinue or substantially modify any of the Software, either party in its sole discretion may terminate this Agreement upon written notice to the other, in which case neither party shall be deemed to be in default by reason of such termination.
OBLIGATIONS
Confidential Information. The parties acknowledge that in their performance of their duties hereunder either party may communicate to the other (or its designees) certain confidential and proprietary information, including without limitation information concerning the Software and the know-how, technology, techniques, or business or marketing plans related thereto (collectively, the "Confidential Information") all of which are confidential and proprietary to, and trade secrets of, the disclosing party. Confidential Information does not include information that: (i) is public knowledge at the time of disclosure by the disclosing party; (ii) becomes public knowledge or known to the receiving party after disclosure by the disclosing party other than by breach of the receiving party's obligations under this section or by breach of a third party's confidentiality obligations; (iii) was known by the receiving party prior to disclosure by the disclosing party other than by breach of a third party's confidentiality obligations; or (iv) is independently developed by the receiving party. As a condition to the receipt of the Confidential Information from the disclosing party, the receiving party shall: (i) not disclose in any manner, directly or indirectly, to any third party any portion of the disclosing party's Confidential Information; (ii) not use the disclosing party's Confidential Information in any fashion except to perform its duties hereunder or with the disclosing party's express prior written consent; (iii) disclose the disclosing party's Confidential Information, in whole or in part, only to employees and agents who need to have access thereto for the receiving party's internal business purposes; (iv) take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained in this Agreement; and (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure. The receiving party shall promptly notify the disclosing party of any unauthorized disclosure or use of the Confidential Information. The receiving party shall cooperate and assist the disclosing party in preventing or remedying any such unauthorized use or disclosure.
Indemnification. Customer agrees to indemnify, defend, and hold harmless Creative Vision Studio, its employees or agents from and against any loss, liability, damage, penalty or expense (including attorneys' fees, expert witness fees and cost of defense) they may suffer or incur as a result of (i) any failure by Customer or any employee, agent or affiliate of Customer to comply with the terms of this Agreement; (ii) any warranty or representation made by Customer being false or misleading; or (iii) any representation or warranty made by Customer or any employee or agent of Customer to any third person other than as specifically authorized by this Agreement.
Disclaimer of All Warranties. THE SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY WARRANTY WHATSOEVER. CREATIVE VISION STUDIO DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, TO CUSTOMER AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CREATIVE VISION STUDIO OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF CREATIVE VISION STUDIO’S OBLIGATIONS.
Limitation of liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SOFTWARE, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL CREATIVE VISION STUDIO’S TOTAL LIABILITY TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID BY CUSTOMER UNDER THIS AGREEMENT TO A MAXIMUM OF ONE THOUSAND DOLLARS ($1,000.00) REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE.
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Customer represents and warrants to Creative Vision Studio as follows: Customer has the full power and authority to execute, deliver and perform this Agreement. This Agreement is valid, binding and enforceable against Customer in accordance with its terms and no provision requiring Customer's performance is in conflict with its obligations under any charter or any other agreement (of whatever form or subject) to which Customer is a party or by which it is bound. Customer is duly organized, authorized and in good standing under the laws of the state of its organization and is duly authorized to do business in all other states in which Customer's business make such authorization necessary or required.
Trademarks. Subject to the limitations in this Agreement, Creative Vision Studio grants Customer the nonexclusive right and license to use Creative Vision Studio' trademarks (the "Trademarks") during the term of this Agreement solely in conjunction with the use of the Software. Creative Vision Studio grants no rights in the Trademarks or in any other trademark, trade name, service mark, business name or goodwill of Creative Vision Studio except as licensed hereunder or by separate written agreement of the parties. Customer agrees that it will not at any time during or after this Agreement assert or claim any interest in or do anything that may adversely affect the validity of any Trademark or any other trademark, trade name or product designation belonging to or licensed to Creative Vision Studio (including, without limitation registering or attempting to register any Trademark or any such other trademark, trade name or product designation). During the term of this Agreement, Customer agrees not to use any trademark, trade name or product name confusingly similar to a trademark, trade name or product name of Creative Vision Studio, except for the Trademarks expressly licensed hereunder. Upon expiration or termination of this Agreement, Customer will immediately cease all display, advertising and use of all of the Trademarks and will not thereafter use, advertise or display any trademark, trade name or product designation which is, or any part of which is, similar to or confusing with any Trademark or with any trademark, trade name or product designation associated with Creative Vision Studio or any of Creative Vision Studio’ products and services.
Intellectual Property. "Intellectual Property" means all of the following owned by a party: (i) trademarks and service marks (registered and unregistered) and trade names, and goodwill associated therewith; (ii) patents, patentable inventions, computer programs, and software; (iii) databases; (iv) trade secrets and the right to limit the use or disclosure thereof; (v) copyrights in all works, including software programs; and (vi) domain names. The rights owned by a party in its Intellectual Property shall be defined, collectively, as "Intellectual Property Rights." Other than the express licenses granted by this Agreement, Creative Vision Studio grants no right or license to Customer by implication, estoppel or otherwise to the Software or any Intellectual Property Rights of Creative Vision Studio. Each party shall retain all ownership rights, title, and interest in and to its own products and services (including in the case of Creative Vision Studio, in the Software) and all intellectual property rights therein, subject only to the rights and licenses specifically granted herein. Creative Vision Studio (and not Customer) shall have the sole right, but not the obligation, to pursue copyright and patent protection, in its sole discretion, for the Software and any Intellectual Property Rights incorporated therein. Customer will cooperate with Creative Vision Studio in pursuing such protection, including without limitation executing and delivering to Creative Vision Studio such instruments as may be required to register or perfect Creative Vision Studio' interests in any Intellectual Property Rights and any assignments thereof. Customer shall not remove or destroy any proprietary, confidentiality, trademark, service mark, or copyright markings or notices placed upon or contained in any materials or documentation received from Creative Vision Studio in connection with this Agreement.
All Inventions Owned By Creative Vision Studio. Customer agrees that he will promptly make full written disclosure to the Creative Vision Studio, will hold in trust for the sole right and benefit of the Creative Vision Studio, and hereby assigns to the Creative Vision Studio, or its designee, all his right, title and interest throughout the world in and to any and all inventions, software, software code, original works of authorship, derivative works, compositions, ideas, processes, techniques, developments, data, concepts, know-how, improvements or trade secrets that are derived from, add to, change, maintain, improve, revise or in any way modify the Software, whether or not patentable or registrable under copyright or similar laws, which he or any of his vendors may solely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to practice, during the period when this Agreement is in force and within six (6) months of the termination, expiration or cancellation of this Agreement (hereinafter “Inventions”).
Inventions-Made-For-Hire. The Inventions, and any and all elements of the Inventions, are specially ordered by Creative Vision Studio and shall constitute a “work-made-for-hire” for Creative Vision Studio under United States copyright law and any other similar or analogous law or statute of any other jurisdiction. Accordingly, Creative Vision Studio shall be the sole and exclusive owner of all rights, title and interests throughout the world, including, without limitation, all intellectual property rights in and to the Inventions, and any and all revisions, translations, enhancements and other modifications and derivative inventions thereof, or any element or component of any of the foregoing, in whatever stage of creation or completion, in any and all languages, for any and all purposes, including, without limitation, the reproduction, manufacture, distribution, public performance, public display, advertising, marketing, promotion, exportation, importation, rental, lease, license, sale and other exploitation of the Inventions in any and all media, machines and devices, and by any and all means, methods and processes, now known or hereafter devised. Creative Vision Studio’ exclusive rights in and to the Inventions shall include, without limitation, all rights in and to the source code and object code embodied in the Inventions, and all characters, sounds, themes and other elements portrayed in the Inventions. Customer acknowledges and agrees that Customer is to have no rights, title or interests in or to the Inventions, any material containing the Inventions or any element or component thereof.
Assignment. As a precaution, if for any reason, the Inventions or any element thereof shall be deemed not to be a work-made-for-hire and/or there is any right, title or interest of any kind or nature which does not accrue to Creative Vision Studio as a work-made-for-hire, then Customer agrees that this Agreement shall constitute an unconditional, fully paid-up, irrevocable, perpetual assignment to Creative Vision Studio of any and all of Customer’s right, title and interest therein and thereto under any copyright laws, including, but not limited to, any and all worldwide copyrights and renewals, extensions and restorations thereof. Customer hereby irrevocably and perpetually transfers, conveys, and assigns to Creative Vision Studio and acknowledges Creative Vision Studio’ perpetual ownership of, in addition to all copyright rights, all other intellectual property rights (including but not limited to any and all applications, registrations, renewals, extensions, and restorations thereof) in and to the Inventions, any derivative inventions and any and all elements of any of the foregoing, throughout the universe, and in any and all languages. Without limiting the generality of the foregoing, Customer acknowledges that Creative Vision Studio shall have the sole and exclusive right to exploit the Inventions, any derivative inventions and any and all elements of any of the foregoing in any and all media and manners throughout the universe, whether now known or hereafter devised, in perpetuity. If, under any current or future law of any jurisdiction, any of the rights in or to the Inventions are subject to a right of termination or reversion, to the extent and as soon as legally permissible, Customer hereby grants to Creative Vision Studio a right of first negotiation for thirty (30) days following the delivery of written notice to Creative Vision Studio and a right of last refusal for fifteen (15) days following the delivery of written notice to Creative Vision Studio to match any third party offer in connection therewith.
Moral Rights. Notwithstanding anything to the contrary contained in this Agreement, Customer agrees that Creative Vision Studio shall have the unlimited right to vary, change, alter, modify, add to and delete from the Inventions, to rearrange and transpose the Inventions, to change the sequence thereof, to use a portion or portions of the Inventions or themes thereof in conjunction with any other material of any kind. Except to the extent that any such waiver is prohibited by law, Customer hereby waives the benefits of any provision of law known as “moral rights” or “droit moral” or any similar law in any country of the world (including under Section 106A of the U.S. Copyright Act of 1976, as amended) and agrees not to institute, support, maintain or permit any action or lawsuit on the ground that any other version of the Inventions produced or exhibited by or on behalf of Creative Vision Studio, its assignees or Customers, in any way constitutes infringement of any of Customer’s moral rights or is in any way a defamation or mutilation of the Inventions or any part thereof or contains unauthorized variations, alterations, modifications, changes or transactions. Customer understands and acknowledges that Customer’s exercise of such rights without the agreement and/or acquiescence of Creative Vision Studio may cause the consideration given to Creative Vision Studio hereunder to fail in whole or in part.
Vesting of Rights. All rights granted or agreed to be granted by Customer under this Agreement shall vest in Creative Vision Studio immediately, whether by way of a present assignment of future copyright or otherwise, and shall remain perpetually vested in Creative Vision Studio whether this Agreement expires in its normal course, or is terminated in whole or in part for any reason whatsoever.
Further Documentation. Customer shall, at Creative Vision Studio’ request, execute, verify, acknowledge and deliver to Creative Vision Studio or procure the execution, verification, acknowledgment and delivery to Creative Vision Studio of such assignments, documents or other instruments that Creative Vision Studio may from time to time deem necessary or desirable to evidence, establish, maintain, protect, enforce or defend its rights hereunder and to convey to Creative Vision Studio those rights in and to the Inventions and any and all elements thereof to be supplied to Creative Vision Studio hereunder. In the event that Customer shall fail to so execute, verify, or acknowledge to Creative Vision Studio any such assignments, documents or other instruments within twenty (20) days after Creative Vision Studio’ delivery of a written request therefore, Creative Vision Studio shall be automatically deemed appointed Customer’s attorney-in-fact (which agency shall be deemed coupled with an interest) with full right, power and authority to execute, verify, acknowledge and deliver any such assignments, documents or other instruments in the name of and on behalf of Customer.
Non-Solicitation. During the period that this Agreement is in effect and for the two-year period immediately following termination, expiration or cancellation of this Agreement, Customer shall not directly or indirectly through another entity (i) induce or attempt to induce any employee of, or consultant to, Creative Vision Studio or its subsidiaries to leave the employ of, or consultancy to, Creative Vision Studio or its subsidiaries, or in any way interfere with the relationship between Creative Vision Studio or its subsidiaries and any employee or consultant thereof, (ii) hire any person who was an employee of, or consultant to, Creative Vision Studio or its subsidiaries at any time during the twelve-month period immediately prior to the date on which such hiring would take place without the written consent of a Creative Vision Studio officer (it being conclusively presumed by the parties so as to avoid any disputes under this section that any such hiring within such twelve-month period is in violation of clause (i) above); (iii) call on, solicit or service any customer, supplier, Customer, licensor, consultant, contractor or other business relation of Creative Vision Studio or its respective subsidiaries in order to induce or attempt to induce such person to cease doing business with Creative Vision Studio or its subsidiaries, or in any way interfere with the relationship between any such customer, supplier, Customer, licensor, consultant, contractor or other business relation and Creative Vision Studio or its subsidiaries (including, without limitation, making any negative statements or communications about Creative Vision Studio or its subsidiaries); or (iv) call on, solicit, or take away or attempt to call on, solicit, or take away any of Creative Vision Studio' customers and vendors on whom Customer called or with whom Customer became acquainted during his contractual relationship with Creative Vision Studio, either on his behalf or that of other person, firm, or corporation.
If, at the time of enforcement of the covenants contained in this section above (the “Protective Covenants”), a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed to revise the Protective Covenants to cover the maximum duration, scope and area permitted by law. Customer agrees that the Protective Covenants are reasonable in terms of duration, scope and area restrictions and are necessary to protect the goodwill of Creative Vision Studio’ businesses and agrees not to challenge the validity or enforceability of the Protective Covenants.
If Customer breaches, or threatens to commit a breach of, any of the Protective Covenants, Creative Vision Studio and its subsidiaries shall have the following rights and remedies, each of which rights and remedies shall be independent of the others and severally enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to Creative Vision Studio or its subsidiaries at law or in equity: the right and remedy to have the Protective Covenants specifically enforced by any court of competent jurisdiction, it being agreed that any breach or threatened breach of the Protective Covenants would cause irreparable injury to Creative Vision Studio and its subsidiaries and that money damages would not provide an adequate remedy to Creative Vision Studio or its subsidiaries; and the right and remedy to require Customer to account for and pay over to Creative Vision Studio or its subsidiaries any profits, monies or other benefits derived or received by Customer as the result of any transactions constituting a breach of the Protective Covenants.
Covenant Not To Compete. Customer agrees that during the term of this Agreement, and for a period of five (5) years after any termination, cancellation or expiration of this Agreement, Customer will not develop, market or sell any products or services that compete with the Bankcard Pros CRM Account Tracking Software.
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