THIS IS A LEGAL AGREEMENT BETWEEN YOU, THE EMPLOYEE, THE INDIVIDUAL, OR THE ENTITY IDENTIFIED AS “CUSTOMER” (AS DEFINED HEREinafter) AND InHouseDigitalPublishing.com (IHDP). THIS AGREEMENT STATES THE TERMS and conditions UNDER WHICH CUSTOMER MAY USE THE In House Digital Publishing Software. BY clicking on the accept button, INSTALLING, HAVING SOFTWARE INSTALLED ON CUSTOMER’s BEHALF, COPYING, HAVING In House Digital Publishing Software COPIED ON CUSTOMER’s BEHALF, USING OR HAVING SOFTWARE USED ON CUSTOMER’s BEHALF, CUSTOMER INDICATES THAT CUSTOMER HAS READ AND UNDERSTANDS THIS AGREEMENT AND AGREES TO BE BOUND BY THE TERMS SET FORTH IN THIS AGREEMENT. IF “In House Digital Publishing Software” IS INSTALLED, COPIED OR USED ON BEHALF OF CUSTOMER, THE TERMS SET FORTH IN THIS AGREEMENT SHALL APPLY TO CUSTOMER AS WELL AS TO the INDIVIDUAL OR ENTITY INSTALLING, COPYING OR USING “In House Digital Publishing Software ON BEHALF OF CUSTOMER. this agreement shall be effective as of THE earlier of the date In House Digital Publishing Software is installed or used. “In House Digital Publishing Software” SHALL BE DEEMED ACCEPTED BY CUSTOMER TEN (10) DAYS AFTER THE DATE “In House Digital Publishing Software” IS DELIVERED TO CUSTOMER. IF CUSTOMER DOES NOT AGREE WITH THE TERMS and conditions SET FORTH IN THIS AGREEMENT, DO NOT install or USE “In House Digital Publishing Software” AND RETURN “In House Digital Publishing Software” TO IHDP WITHIN TEN (10) DAYS OF THE DATE “In House Digital Publishing Software” IS DELIVERED TO CUSTOMER. ANY REFUNDS (IF APPLICABLE) SHALL BE SUBJECT TO InHouseDigitalPublishing.com (IHDP) STANDARD REFUND POLICY IN EFFECT, LESS ANY RESTOCKING FEES AND OTHER APPLICABLE FEES.
Software Agreement
This In House Digital Publishing Software Agreement (“Agreement”) is made as of the Effective Date by and between InHouseDigitalPublishing.com (“IHDP”), a corporation with offices located at 4768 Park Granada Suite 108, Calabasas CA 91302 and the individual or entity identified on the Sales Agreement as customer (“Customer”).
W I T N E S S E T H:
WHEREAS, owns that certain In House Digital Publishing Software application entitled In House Digital Publishing Software; and
WHEREAS, Customer has had an opportunity to review and approve the functions and utilities of In House Digital Publishing Software and is familiar with the use and operation of In House Digital Publishing Software; and
WHEREAS, Customer has independently determined that In House Digital Publishing Software will meet the needs of Customer for a digital publishing software capable of creating dynamic, digital publications for approved material for company use. In House Digital Publishing Software application at the Facility (as defined below); and
WHEREAS, Customer desires to receive a license to use In House Digital Publishing Software.
NOW THEREFORE, in consideration of the mutual benefits of the covenants and restrictions herein contained, IHDP and Customer hereby agree as follows:
ARTICLE I: RECITALS AND DEFINITIONS
Section 1.01 -- Recitals: The above recitals and identification of parties are true and correct.
Section 1.02 -- Definitions: The following definitions shall apply:
(1) Access: The term “Access” and variants thereof shall mean to store data in, retrieve data from or otherwise approach or make use of (directly or indirectly) through electronic means or otherwise.
(2) In House Digital Publishing Software: The term “In House Digital Publishing Software” shall mean the object code for that certain In House Digital Publishing Software application, including the Documentation, as provided by IHDP to Customer hereunder, including Updates.
(3) Associate: The term “Associate” shall mean an employee of IHDP or an independent contractor hired by IHDP.
(4) Authorized Person: The term “Authorized Person” shall mean Customer or employees of Customer who agree in writing to maintain the confidentiality of Confidential Information and individuals or organizations who are authorized in writing by IHDP to receive Confidential Information and who agree in writing to maintain the confidentiality of such Confidential Information.
(5) Cancellation Notice: The term “Cancellation Notice” shall mean that written notice sent by IHDP to Customer seeking to cancel this Agreement because of breach of this Agreement by Customer.
(6) Confidential Information: The term “Confidential Information” shall mean all information concerning this Agreement, In House Digital Publishing Software, and the business and technical plans of IHDP which is disclosed by IHDP to Customer or learned by Customer.
(7) Defects: The term “Defects” shall mean programming errors which substantially impair the performance, utility and functionality of In House Digital Publishing Software, as represented in the Documentation.
(8) Defect Notice: The term “Defect Notice” shall mean that certain written notice from Customer to IHDP identifying Defects.
(9) Delivery Date: The term “Delivery Date” shall mean the date In House Digital Publishing Software is delivered to Customer (as applicable).
(10) Deposit: The term “Deposit” shall mean a sum of money equal to fifty percent (50%) of the Price.
(11) Documentation: The term “Documentation” shall mean the In House Digital Publishing Software user guide (in electronic or printed format) as provided to Customer on the Delivery Date.
(12) Documentation Fee: The term “Documentation Fee” shall mean the sum of money paid by Customer to IHDP for additional copies of Documentation requested by Customer pursuant to Section 3.02. determined in accordance with IHDP then standard rates as of the date Customer’s request for additional copies of the Documentation is received by IHDP.
(13) Effective Date: The term “Effective Date” shall mean the earlier of the date that the Sales Agreement is executed by IHDP and Customer or the date In House Digital Publishing Software is installed or used.
(14) Event of Bankruptcy: The term “Event of Bankruptcy” shall mean: (1) the filing of a petition under any insolvency or bankruptcy statute seeking the declaration of Customer as insolvent or bankrupt; (2) the filing of any action seeking receivership or reorganization of Customer pursuant to or under any insolvency or bankruptcy statute; or (3) the filing of any involuntary petition against Customer pursuant to any insolvency or bankruptcy statute if such petition shall remain unstayed or undismissed for a period of ten (10) days after filing.
(15) Implement: The term “Implement” and variants thereof (including, but not limited to, the terms “implementation”, “implementing” and “implemented”) shall mean to load.
(16) Maintenance Services: The term “Maintenance Services” shall mean Defect resolution services concerning In House Digital Publishing Software (excluding the System) as provided by IHDP to Customer for the prevailing fees and time and material rates published by IHDP and subject to IHDP standard maintenance terms.
(17) Price: The term “Price” shall mean the total price to be paid by Customer to IHDP for the System and for licensing In House Digital Publishing Software, as set forth in the Price Schedule.
(18) Restatements: The term “Restatements” shall mean Section 757 of the Restatement of Torts, Section 39 of the Restatement (Third) of Unfair Competition, Section 1 of the Uniform Trade Secrets Act, and Section 1839 of Title 18 of the United States Code (18 U.S.C. § 1839).
(19) Services: The term “Services” shall mean Maintenance Services and that certain In House Digital Publishing Software installation, training, telephone support, development and consulting services as requested by Customer and approved by IHDP in writing.
(20) Term: The term “Term” shall mean a period of time commencing on the Effective Date and continuing until this Agreement is terminated or canceled under Article IV.
(21) Third Party Technology: The term “Third Party Technology” shall mean third party software, computer, hardware, peripherals, components, devices, equipment and technology used in connection with or related to In House Digital Publishing Software.
(22) Unauthorized Access: The term “Unauthorized Access” shall mean any access to In House Digital Publishing Software except for the exclusive purpose of converting “print ready” files of approved material to a digital page flipping publication, and training employees of Customer in the use of In House Digital Publishing Software.
(23) Unauthorized User: The term “Unauthorized User” shall mean any individual who accesses In House Digital Publishing Software except for: (1) employees of Customer authorized by Customer to access In House Digital Publishing Software and who agrees to maintain the confidentiality of Confidential Information for the exclusive purpose of performing conversion and publishing of print ready files into a digital publication of “Approved Material”, and training employees of Customer in the use of In House Digital Publishing Software and (2) Authorized Persons authorized in writing by IHDP to access In House Digital Publishing Software.
(24) Approved Material: The term “Approved Material” shall mean any material that may be converted into a digital publication that is property of the customer. Any material that is not related to the customer’s business or is given by a third party to the customer for conversion or is converted by the IHDP software for a fee does NOT fall under the term approved material.
(25) Updates: The term “Updates” shall mean the object code for updates, upgrades, new versions, new releases or modifications to In House Digital Publishing Software as generally made available by IHDP from time to time to IHDP customers for the applicable fee.
(26) Warranty Term: The term “Warranty Term” shall mean a period of time commencing on the Delivery Date and ending on the date which is sixty (60) days thereafter.
ARTICLE II: SOFTWARE
Section 2.01 -- Grant of License: IHDP hereby grants to Customer a non-exclusive and non-transferable license to use In House Digital Publishing Software and to use the Documentation at the Facility for the License Term, subject to the terms and provisions of this Agreement.
Section 2.02 -- Delivery: Customer hereby acknowledges IHDP shall deliver In House Digital Publishing Software on the Delivery Date.
Section 2.03 -- Implementation: Customer shall install the In House Digital Publishing Software. Customer shall implement In House Digital Publishing Software on the System, subject to the terms and conditions of this Agreement.
Section 2.04 -- Acceptance: In House Digital Publishing Software shall be deemed accepted by Customer ten (10) days after the Delivery Date unless Defect Notice is received by IHDP by such tenth day. Upon receiving Defect Notice from Customer, IHDP shall review the asserted Defect to determine if the Defect is valid. If, in the reasonable professional judgment of IHDP the asserted Defect is valid, IHDP shall correct the Defect and resubmit In House Digital Publishing Software for acceptance by Customer. If, in the reasonable professional judgment of IHDP the asserted Defect is not valid, IHDP shall submit to Customer a written explanation of the reasons why such asserted Defect is not valid. The written explanation of IHDP set forth herein shall be deemed accepted by Customer within ten (10) days after receipt by Customer of such written explanation unless IHDP receives from Customer written notice rejecting such explanation and terminating this Agreement within such ten (10) day period. Upon receipt of Defect Notice from Customer by IHDP as set forth above, In House Digital Publishing Software shall be deemed accepted by Customer except as to the asserted Defects specified in the Defect Notice.
Section 2.05 -- Risk of Loss: Customer shall assume risk of loss to In House Digital Publishing Software as of the Delivery Date. Customer shall keep In House Digital Publishing Software protected and in good working order, maintained and insured against loss for full replacement value until the date that the Price is paid in full by Customer.
Section 2.06 -- Authorized Use: Customer shall prevent Unauthorized Users from accessing In House Digital Publishing Software. Customer shall prevent Unauthorized Access to In House Digital Publishing Software. Customer shall promptly inform IHDP of any and all Unauthorized Access (or suspected Unauthorized Access) and Unauthorized Users (or suspected Unauthorized Users) of which Customer has knowledge or suspicion. Access to In House Digital Publishing Software using third party products for purposes of manipulating, viewing, disclosing or using the internal structure of In House Digital Publishing Software ™ or for creating a database, data dictionary or data model shall be deemed Unauthorized Access. Use of In House Digital Publishing Software for the purposes of resale, produce or handle content on behalf of daughter- or sister companies, customers, partners, end-users or any other company incorporated under different VAT-numbers than the one submitted by customer, or corporate entities under this VAT. The customer shall not be entitled to grant sublicenses, including to other entities in the same group of companies as the Licensee.
Section 2.07 -- Site Restriction: Customer shall use In House Digital Publishing Software only on the System and only at the Facility.
Section 2.08 -- End Use: Customer hereby represents and warrants that In House Digital Publishing Software is being licensed by Customer for its own use at the Facility and not for rental, leasing, resale, sublicensing, distribution, outsourcing, or offering service bureau services.
Section 2.09 -- Services: Customer may request Services, as approved by IHDP. All Services shall be subject to the discretion of IHDP and shall be subject to IHDP standard service terms and applicable time and material rates.
ARTICLE III: PAYMENT
Section 3.01 -- Price: Customer shall pay the Deposit on the Effective Date. Customer shall pay the difference between the Price and the Deposit on the Delivery Date.
Section 3.02 -- Documentation Fee: Additional copies of the Documentation may be purchased by Customer from IHDP upon request by Customer and upon payment of the Documentation Fee.
Section 3.03 -- Costs: Customer shall pay all costs incurred by IHDP in performing this Agreement. Such costs shall include (without limitation) postage, freight, telecommunications, fees charged by third parties, telephone, travel, lodging, per diem, material and reproduction costs.
Section 3.04 -- Taxes: Customer shall pay any and all taxes attributable to this Agreement, to the transactions contemplated hereunder or to the transactions performed by Customer or third parties using In House Digital Publishing Software, including, without limitation, any applicable sales or use taxes. Notwithstanding the foregoing, Customer shall not be responsible for paying any income taxes assessed against IHDP.
Section 3.05 -- Late Fee: Any amount which is not paid when due shall be increased by a late charge equal to 1% of such unpaid amount for each month (or portion thereof) in which such amount is due and not paid.
Section 3.06 -- Invoicing and Payment: Services shall be performed by IHDP at the time and material rates of IHDP prevailing at the time such Services are rendered. IHDP shall invoice Customer for fees and costs in connection with the Services. Customer shall pay any such invoice in full on the due date thereof or within thirty (30) days of receiving such invoice (whichever is earlier).
ARTICLE IV: TERMINATION
Section 4.01 -- Termination Limitations: This Agreement shall only be terminated or canceled as provided under this Article IV.
Section 4.02 -- Term: This Agreement shall be valid for the Term.
Section 4.03 -- Termination: Customer may terminate this Agreement for convenience upon providing ten (10) days written notice of termination to IHDP, subject to the terms and provisions of this Agreement.
Section 4.04 -- Cancellation for Cause: If Customer violates its obligations under this Agreement, IHDP may cancel this Agreement by sending Cancellation Notice describing the noncompliance to Customer. Upon receiving Cancellation Notice, Customer shall have ten (10) days from the date of such notice to cure any such noncompliance. If such noncompliance is not cured within the required ten (10) day period, IHDP shall have the right to cancel this Agreement as of the eleventh day after the date of the Cancellation Notice.
Section 4.05 -- Return: Upon termination or cancellation of this Agreement, Customer shall promptly remove (at Customer’s expense) all customer information and data stored in In House Digital Publishing Software and return to IHDP the In House Digital Publishing Software, the Documentation and all IHDP materials provided by IHDP to Customer hereunder and shall provide IHDP with a certificate of compliance with this Section 4.05 signed by an authorized representative of Customer. Orders under the Sales Agreement terminated or cancelled by Customer or changes made by Customer within ten (10) days after the Effective Date or before implementation of In House Digital Publishing Software on the System has started (whichever is earlier) are subject to IHDP and Manufacturer’s standard return and refund policy in effect, including (without limitation) restocking fees and other applicable fees. Upon termination or cancellation of this Agreement ten (10) days after the Effective Date or after implementation of the In House Digital Publishing Software, IHDP shall be entitled to retain all payments rendered to IHDP under this Agreement, including (without limitation) the Deposit, the Price, payment for the Services, and payments in anticipation of Services.
ARTICLE V: WARRANTY
Section 5.01 -- Warranty: IHDP represents and warrants that In House Digital Publishing Software shall perform substantially as represented in the Documentation for the Warranty Term. Customer’s exclusive remedy for breach of warranty shall be modification or replacement of In House Digital Publishing Software, as determined by IHDP.
Section 5.02 -- Third Party Warranties: IHDP hereby assigns to Customer the benefit of any and all Manufacturer warranties for the Third Party Technology and may cooperate (as determined by IHDP) with Customer in securing the benefit of any remedies available to Customer under any such Manufacturer warranty.
Section 5.03 -- Service Warranty: Any Services provided by IHDP pursuant to this Agreement shall be performed on a reasonable efforts basis in a timely and professional manner and shall conform to the standards generally observed in the industry for similar Services and shall be subject to Sections 5.01, 5.04, 5.05 and 5.08.
SECTION 5.04 -- DISCLAIMER: THE WARRANTIES SET FORTH IN SECTIONS 5.01 AND 5.03 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND IHDP HEREBY DISCLAIMS AND CUSTOMER HEREBY WAIVES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY AND ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES OF MERCHANTABILITY.
Section 5.05 -- Express Warranties: Customer hereby acknowledges and agrees that IHDP (including IHDP officers, employees, agents, directors, independent contractors, affiliates, distributors and successors) has not made or granted any express warranties concerning the System, the Services and In House Digital Publishing Software.
