(Last Modified: May 14, 2013)
2. Subscription License to Application Service.
- a. License. Subject to the terms and conditions of this Agreement, CFO Scoreboard grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable license, during the Term (as defined in Section 8(a) below), to access and use the Application Service for Customer's internal business, financial, management, and recordkeeping activities, subject to the other terms, conditions and restrictions set forth in this Agreement (the "Permitted Internal Use").
- b. Authorized Users. The license grant in Section 2(a) above is limited to access and use of the Application Service on behalf of Customer (i) by Customer (if Customer is an individual) or a single employee of Customer (if Customer is an entity) and (ii) depending on the type of subscription purchased by Customer, by such additional individual users designated by Customer from time to time in accordance with CFO Scoreboard's then-current provisioning process (collectively, "Authorized Users"). Customer acknowledges and agrees that, depending on the type of subscription to the Application Service purchased by Customer and/or the type of Authorized User, (x) different types and levels of functionality of the Application Service may be made available and (y) Authorized Users may have different access and usage rights to the Application Service. All Authorized Users must be assigned usernames and passwords (in accordance with CFO Scoreboard's then-current provisioning process) to access and use the Application Service on behalf of Customer. Customer shall ensure that Authorized Users comply with the terms and conditions of this Agreement with respect to access and use of the Application Service on behalf of Customer and any acts or omissions of Authorized Users with respect to the same will be deemed acts or omissions of Customer for which Customer will be responsible on a joint and several basis.
- c. Additional Conditions and Restrictions. The license grant in Section 2(a) above does not authorize Customer to, and Customer will not (directly or indirectly): (i) use the Application Service for any purpose, commercial or otherwise, other than the Permitted Internal Use; (ii) modify, adapt, alter, translate or create derivative works of the Application Service; (iii) reverse engineer, decompile, disassemble, decode or otherwise attempt to discover the source code, algorithms, architecture, structure or underlying technology of the Application Service; (iv) rent, lease, loan, sublicense, distribute, transfer or provide access (including on a time share, application service or outsourced basis) to the Application Service to any other person (except to Authorized Users as expressly authorized in Section 2(b) above); (v) use the Application Service for purposes of (A) engaging in any activities in violation of applicable law or (B) competitive or benchmarking analysis or for development of a competing product or service; (vi) attempt to gain unauthorized access to, interfere with, damage or disrupt any portions of the Application Service (including any servers, databases or accounts); or (vii) use the Application Service in any manner that could disable, overburden, damage, or impair the Application Service or interfere with the authorized use of the Application Service by others. CFO Scoreboard shall have the right to monitor Customer's use of the Application Service to confirm Customer's compliance with the terms of this Agreement. All rights in and to the Application Service not expressly granted to Customer in this Agreement are expressly reserved by CFO Scoreboard and its licensors.
3. Account Passwords, Etc. To initially create an account, Customer will be required to provide registration information required by CFO Scoreboard and select an unique username and password. Customer agrees to provide to CFO Scoreboard, and maintain throughout the Term, true, accurate and complete information about Customer and Customer's account. Customer agrees not to impersonate any person or misrepresent Customer's identity or affiliation with any person. Customer is responsible for maintaining the confidentiality of any and all usernames and passwords assigned to or adopted by Authorized Users in connection with Customer's access to and use of the Application Service. Customer will only permit such usernames and passwords to be used by Authorized Users. Customer is responsible for all activities that occur as a result of the use of such usernames and passwords, regardless of whether such activities are performed by Authorized Users. Customer will notify CFO Scoreboard promptly of any unauthorized use of such usernames and passwords or any other breach of security known to Customer.
4. Ownership of Application Service. Except for the limited licenses expressly granted to Customer in Section 2(a) of this Agreement, nothing in this Agreement will be construed, either by implication, estoppel, or otherwise, as a grant to Customer of any right, title, license, or interest in the Application Service or any component thereof (including any patent, copyright, trade secrets, or other intellectual property rights relating to or embodied in any of the foregoing). CFO Scoreboard and/or its licensors shall retain exclusive ownership and title (including all patent, copyright, trade secret, and other intellectual property rights) in and to the Application Service. Customer hereby transfers and assigns to CFO Scoreboard (and will cause its personnel to transfer and assign to CFO Scoreboard) any and all right, title and interest Customer (or its personnel) may have, now or in the future, in and to the Application Service, any modification, improvement or derivative work of any of the foregoing (regardless of whether or not authorized by CFO Scoreboard), including all patent, copyright, trade secrets, and other intellectual property rights relating to or embodied in any of the foregoing. Moreover, Customer hereby grants to CFO Scoreboard a non-exclusive, royalty-free, perpetual, fully transferable and sublicensable right and license to reproduce, distribute, use and otherwise exploit any suggestions, feedback or other information communicated by Customer to CFO Scoreboard relating to the design, specifications, features, functionality, use or operation of the Application Service and/or other CFO Scoreboard offerings (whether current or proposed). Customer will (and will cause its personnel) to execute and deliver any documents and instruments requested by CFO Scoreboard to effect the intent and purpose of the foregoing.
5. Hardware and System Requirements. Customer is solely responsible for obtaining and maintaining, at its own expense, all hardware, software and services needed to access and/or use the Application Service, including any and all computers, mobile devices and Internet access services.
6. Customer Data.
- a. As between the parties, Customer shall retain ownership of any and all data that is (i) uploaded by Customer to, and/or subsequently generated by Customer's use of, the Application Service and (ii) stored by the Application Service (collectively, the "Customer Data"). Customer hereby grants to CFO Scoreboard a non-exclusive, royalty-free license to reproduce, display, distribute, modify, prepare derivative works of and otherwise use the Customer Data for the purpose of providing the Application Service and otherwise performing under this Agreement. In addition, CFO Scoreboard shall be permitted to disclose the Customer Data to any judicial or other governmental entity to the extent such disclosure is required by applicable laws, so long as (x) CFO Scoreboard will first have given prompt written notice to Customer of the same (to the extent not prohibited by applicable law), and (y) CFO Scoreboard reasonably cooperates with Customer's efforts to prevent or limit any such disclosure (at Customer's expense).
- b. Customer further agrees that CFO Scoreboard may use without restriction aggregated, non-personally identifiable information derived from the Customer Data for the purpose of providing or enhancing the Application Service and CFO Scoreboard's other offerings. Customer represents and warrants that Customer has all necessary rights in the Customer Data to use (and to permit the Authorized Users to use) the Customer Data in connection with the Application Service, to grant CFO Scoreboard the rights set forth in this Section 6, and that the Customer Data (including the use thereof under this Agreement) will not violate, misappropriate or infringe the rights (including intellectual property rights) of any person or any applicable laws, and Customer agrees to hold harmless CFO Scoreboard from any claims based on a breach of any of the foregoing.
7. Subscription Fees and Payments.
- a. Subscription Fees. Customer will pay to CFO Scoreboard the applicable annual subscription fee (in effect at the time of purchase or renewal) associated with the type of subscription for the Application Service purchased by Customer (the "Subscription Fee").
- b. Payment Terms; Taxes. Customer will pay the Subscription Fee for the Initial Term in advance on the date of Customer's initial purchase of a subscription to the Application Service. Prior to the date of commencement of each Renewal Term, CFO Scoreboard will provide email notice to Customer of the upcoming Renewal Term and the Subscription Fee payable for such Renewal Term. Customer agrees that, unless Customer terminates this Agreement in accordance with Section 8 below prior to the date of commencement of a Renewal Term, Customer will pay the Subscription Fee for the Renewal Term in advance on the date of commencement of such Renewal Term and CFO Scoreboard is authorized to charge the credit card on file for Customer for the amount of the Subscription Fee. Any additional fees for subscription upgrades or additional services purchased by Customer during the Initial Term or any Renewal Term will be due and payable on the date of purchase of such upgrades or additional services, and will apply for the remainder of the then-current Initial Term or Renewal Term. Failure of Customer to pay any amounts when due under this Agreement shall constitute a material breach of this Agreement. Customer will pay interest at a rate of 1.5% per month, of, if less, the maximum rate permitted by law, on any unpaid amount to CFO Scoreboard under this Agreement for such time as the outstanding balance remains past due. All amounts payable by Customer to CFO Scoreboard are exclusive of applicable sales, use, value-added and other taxes assessed on the provision of the Application Service by CFO Scoreboard under this Agreement, and Customer agrees to pay any applicable taxes as invoiced by CFO Scoreboard. If Customer asserts a tax exemption with respect to any such taxes, Customer will furnish CFO Scoreboard with a valid tax exemption for each jurisdiction in which it is claiming an exemption.
8. Term and Termination.
- a. Term. The term of this Agreement will commence on the date of Customer's initial purchase of a subscription for the Application Service and, subject to any earlier termination of the Agreement under this Section 8, will continue for a period of one (1) year thereafter (the "Initial Term"), and will automatically renew for consecutive one (1) year renewal periods thereafter unless a party notifies the other party prior to the end of the then-current annual period of its election not to renew (each renewal period will be referred to as a "Renewal Term"; and the Initial Term and any and all Renewal Terms will be referred to collectively as the "Term").
- b. Termination for Breach. This Agreement may be terminated by a party immediately upon notice to the other party if the other party is in material breach of this Agreement and has failed to cure such breach within thirty (30) days after notice of the breach.
- c. Termination for Convenience. CFO Scoreboard may terminate this Agreement at any time for its convenience (i.e., for no reason) upon delivery of at least ten (10) days' prior written notice to Customer.
- d. Effect of Termination.
- i. Upon termination or expiration of this Agreement, (A) all Subscription Fees and other amounts payable to CFO Scoreboard under this Agreement through the effective date of termination or expiration shall become immediately due and payable, and (B) the licenses granted to Customer under Section 2 will terminate automatically. In the event the Agreement is terminated by Customer under Section 8(b) or by CFO Scoreboard under Section 8(c), CFO Scoreboard will refund the portion of any pre-paid Subscription Fees attributable to periods following the effective date of such termination (calculated on a pro-rata basis). Except as otherwise provided in the preceding sentence, all Subscription Fees are non-refundable to Customer.
- ii. Customer shall be responsible for retrieving all necessary Customer Data from the Application Service prior to termination or expiration this Agreement. Customer acknowledges that following termination or expiration of this Agreement all remaining Customer Data may be deleted from CFO Scoreboard's systems in accordance with CFO Scoreboard's standard practices.
- iii. Notwithstanding anything to the contrary in this Agreement, termination or expiration of this Agreement will not affect any of the parties' respective rights or obligations that (A) are vested pursuant to this Agreement as of the effective date of such termination or expiration (including obligations for payment and remedies for breach of this Agreement); or (B) arise under Sections 3, 4, 6(b), 7(b), 8(b) and 10 through 22 of this Agreement, all of which will survive any termination or expiration of this Agreement.
- e. Suspension of Application Service. CFO Scoreboard may (without limitation of any other rights or remedies) suspend access to and use of the Application Service in the event that (i) Customer is delinquent in payment of any amount due to CFO Scoreboard under this Agreement (and has not cured such delinquency within five (5) days following notice thereof to Customer), (ii) Customer has breached any of the provisions of Sections 2 or 3 of this Agreement, or (iii) in CFO Scoreboard's reasonable good faith determination, suspension of the Application Service is necessary to avoid or mitigate harm to the security of CFO Scoreboard's or its customers' systems or data. Any such suspension will not constitute a termination of this Agreement.
9. Compliance with Laws. Customer agrees to comply with all applicable laws (including regulations) relating to access to and use of the Application Services and other performance of this Agreement. Without limiting the foregoing, Customer agrees that that the Application Service and other technical data provided to Customer under this Agreement may be subject to the import/export control laws of the United States and other countries, and Customer will comply with any and all such applicable laws.
- a. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE APPLICATION SERVICE IS PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS. NOTWITHSTANDING ANYTHING TO THE CONTRARY, CFO SCOREBOARD (INCLUDING, FOR PURPOSES OF THIS SECTION, ITS AFFILIATES AND LICENSORS) DOES NOT MAKE ANY, AND HEREBY EXPRESSLY DISCLAIMS ALL, WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE APPLICATION SERVICE AND ANY OTHER PRODUCTS, SERVICES, OFFERINGS, INFORMATION OR ITEMS PROVIDED, OR TO BE PROVIDED, TO CUSTOMER UNDER THIS AGREEMENT (COLLECTIVELY, THE "OFFERINGS"), INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY OTHER WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. WITHOUT LIMITING THE FOREGOING, CFO SCOREBOARD DOES NOT MAKE ANY, AND HEREBY EXPRESSLY DISCLAIMS ALL, REPRESENTATIONS, WARRANTIES AND/OR GUARANTEES REGARDING (I) THE OFFERINGS (INCLUDING THE USE OF OR THE RESULTS OF THE OFFERINGS) IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, AVAILABILITY, SECURITY, COMPLIANCE WITH APPLICABLE LAWS OR OTHERWISE, OR (II) WHETHER THE OPERATION OF THE OFFERINGS WILL BE UNINTERRUPTED OR ERROR FREE. CFO SCOREBOARD IS NOT IN THE BUSINESS OF RENDERING LEGAL, ACCOUNTING OR OTHER PROFESSIONAL ADVICE, AND NEITHER CFO SCOREBOARD NOR THE APPLICATION SERVICE SHOULD BE RELIED UPON AS SUCH. IF SUCH ADVICE OR EXPERT ASSISTANCE IS REQUIRED BY CUSTOMER, CUSTOMER SHOULD SEEK THE SERVICES OF A COMPETENT PROFESSIONAL.
- b. The Application Service may offer links to other sites, resources and information provided by third parties (collectively, "Third Party Sites"), including links (such advertisements, banner ads, and sponsored links) to Third Party Sites embedded or otherwise contained on webpages. Links to these Third Party Sites are provided solely as a convenience to you, and the Third Party Sites are not a part of the Application Service. CFO Scoreboard does not operate, own or control the Third Party Sites. You acknowledge and agree that your access to and use of the Third Party Sites is subject solely to the applicable terms and conditions of use (including, without limitation, privacy policies), if any, of the Third Party Sites. This Agreement does not apply to any access to or use of any Third Party Sites by Customer or any Authorized User. Access to or use of any Third Party Sites is done so entirely at Customer's own risk.
- c. The Application Service may offer Customer the ability to communicate with and/or transmit data to other persons (including other users of the Application Service). CFO Scoreboard has no obligation to monitor or police such communications or transmission through the Application Service and will not be responsible for the content of any such communications or transmissions.
11. Limitation of Liability. IN NO EVENT SHALL CFO SCOREBOARD (INCLUDING, FOR PURPOSES OF THIS SECTION, ITS AFFILIATES AND LICENSORS) BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES (INCLUDING LOSS OF REVENUE OR PROFIT, LOSS OF DATA, OR LOSS OF TIME OR BUSINESS) ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR IN TORT (INCLUDING STRICT LIABILITY OR NEGLIGENCE) OR OTHERWISE, AND REGARDLESS OF WHETHER CFO SCOREBOARD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE TOTAL MAXIMUM LIABILITY OF CFO SCOREBOARD FOR ANY AND ALL CLAIMS, DAMAGES AND LIABILITIES ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR IN TORT (INCLUDING STRICT LIABILITY OR NEGLIGENCE) OR OTHERWISE, WILL IN NO EVENT EXCEED THE TOTAL AMOUNT OF SUBSCRIPTION FEES PAID TO CFO SCOREBOARD BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE OCCURRENCE OF SUCH CLAIM, DAMAGE OR LIABILITY, LESS THE AMOUNT OF ALL CLAIMS, DAMAGES OR LIABILITIES PREVIOUSLY PAID BY CFO SCOREBOARD DURING SUCH 12-MONTH PERIOD. NO ACTION, SUIT OR PROCEEDING AGAINST CFO SCOREBOARD MAY BE BROUGHT MORE THAN ONE YEAR FOLLOWING THE DATE UPON WHICH THE CLAIM FIRST AROSE.
13. Indemnity. Customer will indemnify and hold harmless CFO Scoreboard, its officers, directors and employees from and against any and all liabilities, losses, damages and expenses, including court costs and reasonable attorneys' fees, arising out of or in connection with (a) any breach by Customer of this Agreement or (b) any third-party claim that (i) a third party has suffered injury, damage or loss resulting from Customer's (including any Authorized User's) use of the CFO Scoreboard Application, or (ii) Customer or any Authorized User have used the Application Service (or have allowed any other person to use the Application Service) in a manner that violates any term or condition of this Agreement.
14. Governing Law; Venue; Waiver of Jury Trial. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCLUSIVE OF ANY PROVISIONS OF THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS (WHICH CONVENTION SHALL NOT APPLY TO THIS AGREEMENT) AND WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH PARTY IRREVOCABLY SUBMITS AND CONSENTS TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURTS FOR THE WESTERN DISTRICT OF TEXAS AND THE TEXAS STATE DISTRICT COURTS LOCATED IN TRAVIS COUNTY, TEXAS, AND HEREBY AGREES THAT SUCH COURTS WILL BE THE EXCLUSIVE PROPER FORUM FOR THE DETERMINATION OF ANY DISPUTE ARISING HEREUNDER (PROVIDED, THAT THE FOREGOING WILL NOT RESTRICT CFO SCOREBOARD FROM OBTAINING INJUNCTIVE OR OTHER EQUITABLE RELIEF IN ANY OTHER COURT OF COMPETENT JURISDICTION TO THE EXTENT THE ACTIVITY ATTEMPTED TO BE RESTRAINED IS OCCURRING OUTSIDE OF TRAVIS COUNTY, TEXAS). FURTHERMORE, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
15. Equitable Remedies. Customer agrees that a breach by Customer of Sections 2, 3 or 4 of this Agreement would cause irreparable harm to CFO Scoreboard for which monetary damages alone would not be an adequate remedy. Accordingly, Customer agrees that, in addition to any other remedies to which CFO Scoreboard may be entitled, in the event of any such breach or attempted breach, CFO Scoreboard will be entitled to seek equitable relief (including injunctive relief) with respect to such breach or attempted breach.
16. Severability. If a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
17. Notices. Any notice required or permitted to be given to a party under this Agreement shall be made (a) in the case of a notice to CFO Scoreboard, by email to CFO Scoreboard at firstname.lastname@example.org and (b) in the case of a notice to Customer, by email to Customer's email address provided at account registration or at such email address as Customer may designate by subsequent email notice to CFO Scoreboard.
18. Assignment. Customer may not assign or otherwise transfer this Agreement, or any of its rights or obligations hereunder without the prior written consent of CFO Scoreboard. Any attempted assignment or transfer of this Agreement or any rights or obligations hereunder in violation of the preceding sentence will be void. Subject to the foregoing, this Agreement will be binding on the parties and their respective successors and assigns.
19. Interpretation. Each instance in this Agreement of the words "include," "includes," and "including" will be deemed to be followed by the words "without limitation." As used in this Agreement, the term "days" means calendar days, not business days, unless otherwise specified. All headings or section divisions contained in this Agreement are for reference purposes only and will not be construed to affect the meaning or interpretation of this Agreement.
20. Force Majeure. CFO Scoreboard will not be liable for any failure or delay in performance resulting from any event beyond its reasonable control, including due to fire, flood, action or decree of civil or military authority, insurrection, act of war, terrorism, denial of service attacks, labor disputes or shortages, material shortages, power outages, failure of internet connections, failure of suppliers, or embargo.
21. Waiver; Amendments. No waiver of any provision of this Agreement will be effective against CFO Scoreboard unless made in writing and signed by an officer of CFO Scoreboard. CFO Scoreboard shall have the right to change, modify or amend any or all of the terms and conditions of this Agreement, in whole or in part, at any time, on written notice to Customer, which notice may be provided by posting the amendment to the CFO Scoreboard website and sending Customer an email alert that there has been an amendment. Customer's continued use of the Application Service following the publication of such amendment shall constitute Customer's acceptance of the amended Agreement.
22. Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes any and all prior representations, warranties, understandings or agreements (written or oral) between the parties with respect to the subject matter hereof.