This Licensing and Services Agreement (“Agreement”) is entered into on , (“Commencement Date”) by and between AGS Acquisition Corp., an Illinois corporation (“AGS”), and , a(n) corporation (“Client”).
- Whereas, AGS developed an internet model branded as “FittleBug” that facilitates the relationship and scheduling between consumers and service providers (the “Model”)
- Whereas, AGS offers to customers limited licenses to use the Model. In all instances the Model must reside on AGS designated servers.
- Whereas, AGS customers electing to license the Model will maintain and utilize their own internet domain name and web presence which will link to their respective Models.
- Whereas, Client seeks to operate an independent service business utilizing the Model
- Whereas, AGS agrees to grant Client a limited license to utilize the Model and agrees to provide certain implementation, training, and web hosting services to Client, and Client seeks to retain said license and services from AGS, in accordance with the terms and conditions set forth in this Agreement.
Therefore, in consideration of the covenants and conditions set forth herein, and for other consideration, the receipt and sufficiency of which is hereby acknowledged, AGS and Client agree as follows:
- Recital. The above recitals are incorporated by reference and made a part of this Agreement.
- Model Ownership. AGS, or third party-licensors, own and retain all rights, title and interest (including all copyrights, trademarks, patents, trade secret rights, and other intellectual property rights) in and to all aspects of the Model. Client’s access to and/or use of all or any aspect of the Model does not transfer to Client any title to the intellectual property in the Model, and Client will not acquire any rights to use any aspect of Model except as expressly set forth in this Agreement. Client shall retain in the same form as provided by AGS, all copyright, trademark and other proprietary notices contained in any aspect of the Model. Client may not sell, modify, reproduce, display, publicly perform, prepare derivative works based upon, distribute, or otherwise use any aspect of the Model except as expressly provided in this Agreement.
- Limited License Granted Client.
Subject to: (i) Client’s payment of the fees described below; and (ii) the other terms and conditions of this Agreement, AGS hereby grants Client, and Client accepts, a limited, non-transferable, non-exclusive, terminable, license to use the Model in connection with the operation of its independent service business, subject to the terms and conditions of this Agreement (“Limited License”). The Limited License includes any updates, enhancements, modifications, revisions, additions, replacements or conversions of the Model. The Limited License allows Client to utilize the Model in connection with the operation of Client’s individual service business (“Client Business Model”), subject to the terms and conditions of this Agreement. Client represents and warrants each shareholder, officer, director, employee, agent, representative and other person utilizing the Model pursuant to the Limited License (“Authorized User”) shall abide by the terms and conditions of this Agreement and shall be subject to all limitations and obligations of Client under this Agreement. Client is liable for any breach of this Agreement by an Authorized User.
- Prohibited Uses. Without expanding the scope of the Limited License, Client may not without AGS’s prior written consent:
- Use the Model except as expressly permitted herein;
- Lease, loan, sub-license, or resell the Model;
- Transfer or assign any of the rights granted to Client under this Agreement;
- Duplicate, reverse engineer, decompile, or disassemble any aspect of Model;
- Modify or create derivative works based in whole or in part on any aspect of Model;
- Remove any proprietary notices appearing on any aspect of the Model;
- Interfere with or disrupt networks connected to any aspect of the Model;
- Attempt to gain unauthorized access to any aspect of the Model, or the computer systems and networks connected to the same;
- Interfere with any other persons’ use and enjoyment of any aspect of the Model;
- Utilize the Model in any way that is unlawful, harmful, threatening, harassing, tortious, defamatory, obscene, libelous, invasive of another’s privacy, or otherwise objectionable;
- Upload any information regarding another person without being authorized by that person;
- Upload content, data, or information that contains a virus, corrupted file, or other harmful component;
- Impersonate any person or entity, including but not limited to AGS personnel, or falsely state or otherwise misrepresent any affiliation with any person or entity, or upload any content, data, or information under a fictitious name; or
- Intentionally or unintentionally violate, encourage or assist another to violate any ordinance, statute, regulation, rule, or law in connection with Client’s use of the Model.
- User ID and Password. AGS will provide Client with a unique user identification and password allowing Client to access the Client Business Model (“User ID and Password”) administrative functionality. Client is responsible for ensuring the confidentiality of the User ID and Password, and for all activities that occur under the User ID and Password. In the event Client forgets the User ID and Password, Client may contact AGS at 630-444-2000 and/or firstname.lastname@example.org, or such other phone number and/or email address hereafter provided to Client by AGS.
- Client access to the Client Business Model. Client understands and acknowledges the Client Business Model is available only through the worldwide web through AGS. Client is solely responsible for acquiring and maintaining the hardware, software, internet access, and any other equipment, and services of any kind necessary to access and utilize the Client Business Model, and for all associated fees, costs, and expenses. If the Model is lost or damaged, AGS will provide a replacement copy at no additional charge.
- Changes in the Model. AGS may in its sole and absolute discretion change, modify, alter, enhance, or discontinue any aspect of the Client Business Model at any time without notice. Client’s sole remedy in the event Client is dissatisfied with any such change, modification, alteration, enhancement, or discontinuance of any aspect of the Client Business Model is to terminate this Agreement in accordance with Section 10.c. below. Under no circumstances shall Client be entitled to a refund of any fees or other amounts paid AGS in accordance with this Agreement.
- AGS Services. In addition to the Limited License granted hereunder, AGS shall provide Client certain implementation, training, and hosting services defined in this Section 8.
- Hosting Services.
- Hosting Services Defined. AGS agrees to: (a) host the Client Business Model and related web pages on its server (“AGS Server”); and (b) back up the Client Business Model nightly while this Agreement remains in effect (collectively “Hosting Services”). Client acknowledges the AGS Server is provided to Client on a non-exclusive basis.
- Access Not Guaranteed. While the AGS Server will generally be available and operational twenty-four (24) hours a day, seven (7) days a week, Client acknowledges AGS makes no representations or guarantees regarding the operation and availability of the Hosting Services. Without limiting the foregoing, the Hosting Services may not be operational or available, and may fail or be interrupted do to scheduled maintenance, repairs, upgrades, security breaches, interruption of telecommunication or digital transmission links, Internet failures, and other causes not anticipated by AGS and/or beyond AGS’s control.
iii. Warranty Disclaimer. Client understands and agrees the Hosting Services are provided on an “as-is,” “as-available” basis without any warranties to the maximum extent possible pursuant to applicable law. AGS disclaims all warranties, express, implied, or statutory, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. Without limiting the foregoing provisions, AGS makes no warranty that the Hosting Services will be error-free or free from interruptions or other failures or that the Hosting Services will meet client’s requirements.
- Upgrades. AGS reserves the right, but shall have no obligation, to upgrade or substitute the AGS Server and take other actions with regard to the AGS Server it reasonably believes are necessary or in the best interest of AGS’s business.
- Limited Services. AGS is responsible only for providing the Hosting Services defined in Section 8.a.i. above. AGS shall not provide any equipment, supplies, materials, or services not specifically identified as Hosting Services in Section 8.b.i. Whether specific equipment, supplies, materials, or services are included within the definition of Hosting Services shall be determined by the AGS in its sole and absolute discretion.
- Implementation & Training Services. Upon receipt of a signed Agreement and the initial License and Hosting Fee payment, AGS will forward to Client the necessary documents to assist in the gathering and submitting of the appropriate Client data for input into the Client Business Model. Upon the receipt of all necessary data, AGS will prepare the Client Business Model to be available for productive use within two business days. AGS will provide initial training on administration of the Client Business Model not to exceed a total of three hours. AGS will provide reasonable additional training assistance via phone, email or webinar through the first year of this Agreement.
- Additional Services. Upon Client’s request and AGS’s acceptance, AGS may provide other services separate from and in addition to the Implementation, Training, and Hosting Services described above (“Additional Services”). AGS may from time to time make available to Client generic marketing materials to assist in the marketing of their model.
- Fees and Taxes.
- Introductory Monthly License and Hosting Fee. AGS offer two types of contracts – Plan “A” and Plan “B”.
Under Plan “A” – Client shall pay AGS a non-refundable $200 per month for unlimited number of transactions, plus a one (1) time non-refundable set up fee of $200. Payment will be made automatically from Clients provided credit card at the time of License on the same day each month until canceled. Once monthly payment is paid, AGS provides no refunds for the month of service. Client will be responsible for the set up and cost of the necessary PayPal PRO or Advanced, Stripe or any other account to work with the Plan “A” model of FittleBug. The License and Hosting Fee for the second and subsequent years shall be subject to AGS’s then current pricing. Client shall make all payments to AGS’s chosen electronic payment account or by such other method as AGS communicates to Client in writing.
Under Plan “B” Client shall pay AGS a non-refundable $50 per month, a one (1) time non-refundable set up fee of $200, and 15% of each total revenue including any relevant taxes for each transaction processed through FittleBug. Client will NOT be responsible for the set up and cost of the necessary PayPal PRO account to work with the Plan “B” model of FittleBug. The License and Hosting Fee for the second and subsequent months shall be subject to AGS’s then current pricing. The Client may switch between Plan A and B for a one time $100 transfer fee per occurrence.
- Fees for Additional Services. In the event Client requests and AGS agrees to provide, any Additional Services, Client shall pay AGS an additional fee based on the time spent by AGS in furtherance of the Additional Services at AGS’s hourly rate of One Hundred Ten and No/100 Dollars ($110.00) per hour. AGS will submit a monthly invoice to Client for hourly fees and expenses currently due in connection with the Additional Services, and Client shall pay the balance due within ten (10) days of the date of said invoice.
- Failure to Pay Fees. In the event Client fails to make timely payment of any amounts due AGS under this Agreement, Client shall reimburse AGS for all expenses including, but not limited to, legal fees incurred in connection with any action (regardless of whether a formal complaint is filed) pursued by AGS to recover amounts due from Client.
- Taxes. Client shall pay or reimburse AGS for all sales, use, transfer, privilege, excise, and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the performance by AGS under this Agreement; excluding, however, income taxes on profits which may be levied against AGS.
- Added Functionality. During the Term of this Agreement, in the event AGS develops or otherwise acquires additional functionality and/or options which enhance the Model (“Model Addition”), AGS shall, in each instance, notify Client of the Model Addition and the cost associated with licensing and adding the Model Addition to the Client Business Model (“Addition Cost”). If Client chooses to license and incorporate any Model Addition to the Client Business Model, the Prorated cost of the remaining Hosting and License Fee will be increased by the Additional Cost following implementation of the Model Addition and through the end of the Agreement Term.
- Term and Termination.
a. Term. The term of this Agreement shall commence on the Commencement Dated stated above and shall continue for one (1) year(“Term”) unless terminated prior thereto, or extended, in accordance with this Section 10. b. Early Termination by AGS. AGS may terminate this Agreement at any time and for any reason or no reason by providing written notice of termination to Client and refunding a pro rata portion of the License and Hosting Fee for any period paid by Client but not yet completed as of the date of termination. AGS shall have no other obligation to Client if AGS terminates this Agreement under this provision prior to the end of Term. AGS may also terminate this Agreement without any liability at anytime by giving written notice to Client in the event Client breaches any of the representations, warranties, or provisions contained in this Agreement.
c. Early Termination by Client. Client may terminate this Agreement on thirty (30) days written notice to AGS in the event of a breach of any provision of this Agreement by AGS, provided that, during the thirty (30) day notice period, AGS fails to cure such breach.
- Extension of Term. Unless either party notifies the other of it’s intent to terminate the Agreement in writing at least thirty (30) days prior to the expiration of the current Term, the Agreement will automatically be extended for an additional one (1) year period and Client shall pay to AGS the then current annual License and Hosting Fee.
- Effect of Termination. Upon expiration or termination of this Agreement, Client’s License and access to the Client Business Model shall end. Except for information AGS may retain for its own internal uses Client acknowledges that all other information and data related to Client, and Client’s customers, contractors, vendors, and prospects, if any, cannot be saved outside of the Client Business Model or transferred from the Client Business Model and is usually destroyed upon termination of this Agreement. AGS is not liable for any losses or
damages suffered by Client as a result of the destruction or loss of such information or data. Expiration or termination of this Agreement shall not relieve Client of Client’s obligation to pay fees due under this Agreement. Nothing herein shall be construed as obligating AGS to destroy or return any information it may possess regarding Client, and Client’s customers, contractors, vendors, and prospects.
- Client Responsibility. Other than the Hosting Services specified in paragraph 8.b.i., Client assumes sole responsibility for everything necessary or required for the proper and secure functioning of the Client Business Model. Without limiting the foregoing, Client assumes sole responsibility for: (a) the administration, marketing, and operations of Client’s service business; (b) the accuracy of the contents contained on, and the proper use of, the Client Business Model; (c) ensuring the contents of the Client Business Model do not infringe on or violate any applicable statute, ordinance, law, regulation or the rights of any third party; and (d) providing all data transmitted to, gathered by, or related to the Client Business Model. Client shall not place or cause to be placed on the AGS Server content which violates any applicable law or regulation or any proprietary, contract, privacy or other third party right, or which may expose AGS to civil or criminal liability. AGS reserves the right to exclude or remove any content from the AGS Server and the Client Business Model if AGS determines, in its sole and absolute discretion, said content may violate any law, violate or infringe any third party right, potentially expose AGS to civil or criminal liability, or is otherwise deemed inappropriate.
- Limitation of liability. Client understands and agrees that under no circumstances, shall AGS, or any of its directors, officers, employees, suppliers, agents, and other representatives be liable for any direct or indirect losses or damages arising out of or in connection with this Agreement; the Hosting Services; the Set Up Services; the Training Services; the Client Business Model; third parties accessing or using the Client Business Model; the actions or inactions of Client or AGS; the interruption or failure of the AGS Server; or any security breach. This is a comprehensive release of liability that applies to all losses and damages of any kind, including, without limitation, direct, indirect, general, special, incidental, consequential, exemplary, statutory, contractual, or damages or losses of any other kind or type. This limitation of liability applies whether the alleged liability is based on contract, negligence, tort, strict liability, or any other basis and even if AGS knew or should have known of the possibility of such damages. The foregoing provisions shall be enforceable to the maximum extent permitted by law.
- Waiver of claims. Client hereby waives any and all claims, demands, actions, or causes of action of any kind Client may have directly or indirectly against AGS or its affiliates, or any of their respective managers, directors, officers, members, shareholders, employees, contractors, agents or other representatives resulting from, arising out of, or in anyway connected with or related to this Agreement, the Hosting Services; the Set Up Services; the Training Services; the Client Business Model; third parties accessing or using the Client Business Model; the actions or inactions of Client or AGS; the interruption or failure of the AGS Server; or any security breach.
- Indemnification and Insurance. Client agrees to defend, indemnify, and hold harmless AGS and its directors, officers, employees, suppliers, agents, and other representatives against any and all claims, demands, actions, causes of action, losses, damages and expenses (including reasonable attorneys’ fees and costs incurred in defending such claims), directly or indirectly resulting from, arising out of, or in any way related to this Agreement; the Hosting Services; the Set Up Services; the Training Services; the Client Business Model; third parties accessing or using the Client Business Model; the actions or inactions of Client or AGS; the interruption or failure of the AGS Server; or any security breach. Client shall carry and maintain insurance sufficient to cover its obligations under this indemnification provision and elsewhere in this Agreement, and shall provide evidence of said insurance upon AGS’s request.
- Relationship of the parties. AGS and Client are, and will act as, independent contractors. Nothing in this Agreement is intended to or shall be construed to constitute an agency, joint venture, partnership, or fiduciary relationship between the parties; and neither party shall have the right or authority or shall hold itself out as having the right or authority to bind the other party.
- Ownership. All trademarks, service marks, trade names, logos or other words or symbols identifying the Model or AGS’s business (the “Marks”) are and will remain the exclusive property of AGS or its licensors, whether or not specifically recognized or perfected under local law. Client will not take any action that jeopardizes AGS’s or its licensors’ proprietary rights or acquires any right in the Marks, except the limited use rights specified in Section 16(b). Client will not register, directly or indirectly, any trademark, service mark, trade name, copyright, company name or other proprietary or commercial right that is identical or confusingly similar to the Marks. Upon AGS’s request, Client will execute the instruments that may be appropriate to register, maintain or renew the registration of the Marks in AGS’s or its licensors’ name.
- Use. Client will use the Marks exclusively to advertise and promote the Model. All advertisements and promotional materials will (i) clearly identify AGS or its licensors as the owner of the Marks, and (ii) conform to AGS’s then-current trademark and logo guidelines. Before publishing or disseminating any advertisement or promotional materials bearing a Mark, Client will deliver a sample of the advertisement or promotional materials to AGS for prior approval. If AGS notifies Client that the use of the Mark is inappropriate, Client will not publish or otherwise disseminate the advertisement or promotional materials until they have been modified to AGS’s satisfaction.
- Client Information and Data. During the course of this Agreement, AGS shall have access to and possess information and data regarding Client, Authorized Users, and third parties (“Authorized User Information and Data”). To the extent Client possesses a proprietary interest in Authorized User Information and Data, Client hereby grants AGS a non-exclusive, perpetual, worldwide, royalty free, license to utilize in any manner and for any purpose any and all Authorized User Information and Data.
- Legal Compliance. Client shall at all times comply with all applicable local, state, and federal statutes, ordinances, regulations, rules, and other laws of any kind.
- Client compliance with the CAN-SPAM Act (15 USC 7701-7713). Without limiting Client’s obligations under paragraph 18, all e-mail sent or initiated by Client in any way related to the Client Business Model and/or this Agreement shall comply with the requirements of 15 USC 7701-7713 (“CAN-SPAM Act”). Without limiting the foregoing, Client shall not send any e-mails after being notified by AGS or the email recipient that the recipient requested not to receive any future e-mail from AGS or Client.
- Drafting and construction. No inference or presumption shall arise against or in favor of either Party because it did or did not draft this Agreement or any provision hereof.
- Survival. The parties agree that paragraphs 2, 9.d, 10-14, 16, 17, and 21-27 shall survive the termination of this Agreement.
- Waiver. If one party agrees to waive its right to enforce any term of this Agreement, it does not waive its right to enforce such term, or any or all other terms, of this Agreement at any other time.
- Governing Law and Choice of Forum. This Agreement was entered into in the State of Illinois, and shall be governed by and construed in accordance with Illinois law. Any claim or dispute
related to or arising out of this Agreement shall reside in the courts of the State of Illinois, and in particular in either the Kane County Circuit Court or the U.S. District Court for the Northern District of Illinois.
- Severability. If any provision of this Agreement is invalidated or held unenforceable, the invalidity or unenforceability of that provision shall not affect the validity or enforceability of any other provision of this Agreement. In addition, the parties agree that as to any provision found to be invalid or unenforceable, the same shall not be void, but shall be reformed and enforced to the
maximum extent permissible under applicable law, as if originally executed in that form by the parties.
- Amendments. No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by AGS and Client.
- Entire Agreement. This Agreement constitutes the entire agreement between Client and AGS and there are no representations, understandings or agreements which are not fully expressed in this Agreement. All prior agreements, verbal or written, are of no effect once this Agreement is executed.
- Acknowledgement. The undersigned hereby represent and acknowledge they have read the foregoing Agreement, they know its contents, and they are executing this Agreement as a free and voluntary act and on behalf of the named parties. The undersigned further represent they are duly authorized to execute this document on behalf of the named parties.