MASTER SALE AND LICENSE AGREEMENT
THIS MASTER SALE AND LICENSE AGREEMENT (this “Agreement”) is entered into by and between TNBI INC, a Delaware Corporation (“TNBI”) and the Person whose name appears on the signature block hereto (“Customer”) as of the date on which Customer first places an Order with TNBI (“Effective Date”).
WHEREAS, TNBI and Customer desire to enter into this Agreement which shall govern all Orders made hereunder.
NOW THEREFORE, in consideration of the covenants, representations and warranties contained herein, and intending to be legally bound hereby, TNBI and Customer agree as follows:
SECTION 1. – Definitions. As used in this Agreement, the following terms shall have the respective meanings assigned to them below:
1.01 “Bankruptcy Event” means the person in question becomes insolvent, or voluntarily or involuntary proceedings by or against such person are instituted in bankruptcy or under any insolvency law, or a receiver or custodian is appointed for such person, or proceedings are instituted by or against such person for corporate reorganization or the dissolution of such person, which proceedings, if involuntary, shall not have been dismissed within sixty days after the date of filing, or such person makes an assignment for the benefit of its creditors, or substantially all of the assets of such person are seized or attached and not released within sixty days thereafter.
1.02 “Non-TNBI Application” means a web-based, mobile, offline or other software application functionality that is provided by Customer or a third party and interoperates with a Product.
1.03 “Person” or “person” means any corporation, partnership, limited liability company, joint venture, other entity or natural person.
1.04 “Software Modifications” means any software updates, upgrades, patches or similar applications or processes provided by TNBI.
SECTION 2. – Orders; Software License.
2.01 Customer may, from time to time, place orders for hardware and/or software products or services offered by TNBI (each, a “Product”), either electronically through TNBI’s website or in paper format on TNBI’s then-current standard form (each, an “Order”). All Orders which are accepted (either by TNBI’s execution of such Order or fulfillment thereof) by TNBI shall (i) be governed by the terms and conditions set forth in this Agreement and (ii) automatically be incorporated by reference herein. In the event that Customer submits an Order which includes any terms or provisions which are in addition to or different from completion of the items required on TNBI’s then-current standard form (“Additional or Different Terms”), such Additional or Different Terms shall be null and void and of no force or effect. In the event of a conflict between this Agreement and an Order, the terms and conditions of this Agreement shall govern.
2.02 With respect to software Products ordered by Customer pursuant to an Order which has been accepted (as described in Section 2.01) by TNBI, TNBI grants Customer a non-exclusive, non-transferable, limited license to use such software during the term set forth in such Order solely for the Stated Purpose (hereinafter defined).
SECTION 3. – Fees; Payment.
3.01 Customer shall pay to TNBI the applicable fees and other charges set forth in each Order, at such time(s) and with such frequency as set forth in each Order. In addition, Customer shall be responsible for paying all sales, use, property, or other taxes, duties or similar charges assessed, levied or imposed by any governmental authority or regulatory agency against TNBI or Customer in connection with this Agreement, any Order and transactions contemplated hereunder and thereunder, except for taxes based upon TNBI’s property or income. At its option, TNBI may include such taxes in its invoices, in which event Customer shall pay to TNBI the taxes so invoiced. Customer shall also be responsible for paying all credit card processing frees, automatic debit changes and similar fees/charges imposed by any third party against TNBI or Customer in connection with this Agreement, any Order and the transactions contemplated hereunder and thereunder.
3.02 All payments by Customer hereunder shall be made by Customer to TNBI in full, without any right of set-off or deduction, within thirty days after the date of invoice or, if a given Order does not require that TNBI generate an invoice, on the payment dates specified in such Order. Customer shall pay interest on all amounts past due at the rate of one and one-half percent per month, if such rate is permitted by law, or otherwise at the highest rate permitted by law. If any fee, charge or other amount owing by Customer under this Agreement or any Order is thirty days or more overdue, TNBI may, without limiting its other rights and remedies hereunder, at law or in equity, suspend its provision of any or all Products under this Agreement and any or all Orders until all such amounts are paid to TNBI in full. If Customer’s access to any Product(s) is suspended as described above, Customer shall pay TNBI’s then-current standard rates to re-activate the Product(s) if/when TNBI reinstates Customer’s use of the Products(s) as described above.
SECTION 4. – Term; Termination.
4.01 The term of this Agreement shall begin on the Effective Date and, unless terminated pursuant to Section 4.02 below, shall continue until expiration or termination of all Orders placed hereunder.
4.02 This Agreement may only be terminated as follows: (i) Either party shall have the right to immediately terminate this Agreement by delivering written notice thereof to the other party if the other party materially fails to perform or comply with any provision of this Agreement and does not cure the default within 30 days after receipt of written notice from the other party specifying the default; (ii) Either party shall have the right to immediately terminate this Agreement by delivering written notice thereof to the other party upon a Bankruptcy Event involving the other party; and (iii) TNBI shall have the right to terminate this Agreement with respect to any Product(s) upon at least thirty days prior written notice to Customer in the event that TNBI determines to no longer make such Product(s) generally available to its customers.
4.03 Upon the expiration or sooner termination of this Agreement, all rights of Customer under this Agreement and all Orders shall automatically and immediately cease, and Customer shall promptly return to TNBI all Products in the possession or control of Customer (except hardware which was not provided free of charge for which Customer has made full payment to TNBI), and Customer shall delete all copies of any Products residing on computer memory. Moreover, the payment obligations of Customer upon the expiration or sooner termination of this Agreement shall be as follows: (i) if this Agreement expires or is terminated by TNBI as permitted in Section 4.02, Customer shall remain responsible to pay TNBI all amounts under this Agreement and each Order in full, as though each Order had remained in place throughout the entire term of such Order; and (ii) if this Agreement is terminated by Customer as permitted in Section 4.02, Customer shall remain responsible to pay TBNI all amounts under this Agreement and each Order accruing on or prior to the termination date. The following shall survive the expiration or sooner termination of this Agreement: (i) the provisions of Sections 3, this Section 4.03, 5.03, 5.04, 5.05, 7, 8 and 9; and (ii) any other provision herein which is necessary to interpret the rights and obligations of the parties in connection with the expiration or termination of this Agreement.
SECTION 5. – Warranties.
5.01 TNBI shall provide the following limited warranty covering defects in materials and workmanship with respect to hardware provided by TNBI to Customer pursuant to an Order: (i) TNBI shall, with respect to hardware which has been purchased and paid-in-full by Customer, repair or replace such hardware during the one year period after the initial sale of the applicable hardware to Customer; and (ii) TNBI shall, with respect to hardware being provided by TNBI to Customer free of charge, repair or replace such hardware during the term of the applicable Order. Notwithstanding the foregoing, TNBI shall not provide any warranty, repair or replacement of hardware which is damaged, nonfunctional or malfunctioning due to (i) external causes such as accident, abuse, misuse or problems with electrical power; (ii) servicing not authorized by TNBI; (iii) usage that is not in accordance with Product instructions; (iv) failure to follow the Product instructions or failure to perform preventive maintenance; (v) using accessories, parts or components not supplied by TNBI; or (vi) failure by Customer to immediately install any Software Modifications.
5.02 TNBI will use commercially reasonable efforts to make any online software Products licensed by TNBI to Customer pursuant to an Order available 24 hours a day, 7 days a week, except for: (i) planned or scheduled downtime, (ii) any unavailability caused by circumstances beyond TNBI’s reasonable control, including without limitation, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, internet service provider failure or delay, Non-TNBI Application, or denial of service attack, or (iii) any unavailability caused by Customer’s failure to immediately install any Software Modifications. Customer acknowledges and understands that the Products will not be available for use during planned or scheduled maintenance downtime.
5.03 EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 5, TNBI DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES RELATING TO THE PRODUCTS OR ANY OTHER MATTER COVERED BY THIS AGREEMENT OR ANY ORDER, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TNBI DOES NOT REPRESENT OR WARRANT THAT THE PRODUCTS WILL OPERATE WITHOUT ANY FAILURE, INTERRUPTION OR DELAY AND/OR BE ERROR FREE. CUSTOMER IS SOLELY RESPONSIBLE FOR INSTALLATION OF ALL PRODUCTS, AND TNBI SHALL NOT BE OBLIGATED TO PROVIDE ANY TRAINING OR MAINTENANCE WITH RESPECT TO ANY PRODUCTS. IF TNBI, IN ITS SOLE DISCRETION, PROVIDES ANY TRAINING OR MAINTENANCE WITH RESPECT TO ANY PRODUCTS, CUSTOMER SHALL PAY TNBI’S THEN-CURRENT STANDARD RATES FOR ALL SUCH TRAINING AND/OR MAINTENANCE.
5.04 CUSTOMER ACKNOWLEDGES THAT THE INTERNET IS AN UNSECURE, UNSTABLE, UNREGULATED, UNORGANIZED AND UNRELIABLE ENVIRONMENT, AND THAT THE ABILITY OF TNBI TO PROVIDE PRODUCTS USING THE INTERNET IS DEPENDENT ON THE INTERNET AND EQUIPMENT, SOFTWARE, SYSTEMS, DATA AND SERVICES PROVIDED BY VARIOUS TELECOMMUNICATIONS CARRIERS, EQUIPMENT MANUFACTURERS, FIREWALL PROVIDERS, ENCRYPTION SYSTEM DEVELOPERS AND OTHER VENDORS AND THIRD PARTIES. TNBI DOES NOT WARRANT THAT ANY PRODUCTS WILL OPERATE WITHOUT INTERRUPTION OR DELAY AND/OR BE ERROR FREE, OR THAT FAILURES OF ANY PRODUCTS CAN OR WILL BE CORRECTED.
5.05 IN NO EVENT SHALL TNBI BE LIABLE FOR LOST PROFITS OR BUSINESS, LOSS OF GOODWILL, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR FOR ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH CLAIM ARISES UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE AND REGARDLESS OF WHETHER TNBI IS ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. THE AGGREGATE LIABILITY OF TNBI FOR ANY AND ALL CLAIMS ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, ANY ORDER, OR THE SUBJECT MATTER HEREOF OR THEREOF SHALL NOT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO TNBI UNDER THIS AGREEMENT.
SECTION 6. – Representations and Covenants.
6.01 Customer has all necessary power and authority to enter into this Agreement and each Order, to carry out its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Customer of this Agreement and each Order, the performance by Customer of its obligations hereunder and thereunder and the consummation by Customer of the transactions contemplated hereby and thereby have been duly authorized by all requisite action on the part of Customer. This Agreement and each Order have been duly executed and delivered by Customer, and this Agreement and each Order constitute a legal, valid and binding obligation of Customer, enforceable against Customer in accordance with their respective terms.
6.02 Customer shall comply with all laws, rules and regulations applicable to its exercise of any of its rights and obligations hereunder or pursuant to any Order.
6.03 Customer, at its sole cost and expense, shall immediately install any Software Modifications. Customer acknowledges and agrees, however, that TNBI shall in no event be required to provide Customer with any Software Modifications.
SECTION 7. – Intellectual Property.
7.01 Except as expressly provided herein, all right, title and interest in and to the Products, including without limitation, all patent rights, copyrights, trademarks and all other intellectual property rights inherent therein or appurtenant thereto, are and shall remain in TNBI. No license, release or other right, title or interest is granted by implication, estoppel or otherwise by TNBI to Customer except for the licenses and rights expressly granted under this Agreement. TNBI reserves all rights not expressly granted to Customer herein including, without limitation, translation rights and rights to source code. Customer shall not (i) reverse engineer, reverse decompile or disassemble any Product or any part thereof or otherwise attempt to create any derivative works of any Product; or (ii) modify, enhance, change or update any Product. Customer agrees not to take any action that would mask, delete or otherwise alter any disclaimers and/or any copyright, trademark, service mark or other proprietary notifications that TNBI may place on or in any Product from time to time.
7.02 Customer hereby agrees to indemnify, defend and hold harmless TNBI, its affiliates and their respective Representatives from any claim made for infringement or misappropriation of any third party copyright, trade secret, patent or other intellectual property right resulting or arising from: (i) modification of any Product by any person other than TNBI; (i) customization of any Product by Customer or its Representatives; or (iii) use by Customer of any Product or any part thereof in combination with any other hardware, software or other product where such combination has not been expressly specified in writing by TNBI and the infringement would not have occurred but for such combination.
SECTION 8. – Confidentiality.
8.01 In connection with this Agreement, Customer has received and may in the future receive or be given access to, certain confidential and proprietary information, technical data, trade secrets and know-how of TNBI, including without limitation, research, product plans, products, service plans, services, markets, algorithms, computer programs, operating methods and procedures, secret lists of actual and potential sources of supply, customers and employees, costs, profits, markets, sales, trade secrets, plans for future developments, marketing, distribution and sales methods and systems, sales and profit figures, finances and other business information (collectively, “Confidential Information”) which are either developed and owned by TNBI or developed by third parties specifically for TNBI. Without limiting the generality of the foregoing, the Products and all components thereof constitute Confidential Information of TNBI.
8.02 All Confidential Information that TNBI or any of its Representatives furnishes to Customer (including without limitation any such information furnished prior to the date of this Agreement) shall be used by Customer solely in connection with the purposes and provisions of this Agreement (the “Stated Purpose”) and not for any other purpose. Customer shall take reasonable steps to ensure that all Confidential Information is kept confidential; provided, however, that such information may be disclosed to those representatives, counsel, accountants, directors, officers, employees and agents (each, a “Representative,” and collectively, the “Representatives”) of Customer who have a need to know such information in connection with the Stated Purpose only if each such Representative is informed by Customer of the confidential nature of such information and of the confidentiality undertakings of Customer contained herein. Customer shall be responsible for any breach of this Agreement by its Representatives. As used herein, “reasonable steps” means the steps that the Recipient takes to protect its own, similar confidential and proprietary information, which shall not be less than a reasonable standard of care.
8.03 Customer acknowledges that the provisions and restrictions contained in this Section 8 are reasonable and necessary to protect the legitimate interests of TNBI, that TNBI would not have entered into this Agreement in the absence of such provisions and restrictions, and that any violation of any provision of this Section 8 will result in irreparable injury to TNBI, inadequately compensable in monetary damages. Customer agrees that TNBI shall be entitled to obtain from any court of competent jurisdiction preliminary and permanent injunctive relief from any violation or threatened violation of this Section 8, without the necessity of proving actual damages, as well as to an equitable accounting of all earnings, profits and other benefits arising from any such violation, which rights shall be cumulative and in addition to any other rights or remedies hereunder, at law or in equity to which TNBI may be entitled.
SECTION 9. – Miscellaneous.
9.01 Independent Contractors. In making and performing this Agreement, the parties are acting and shall act as independent contractors. Neither party is, nor will be deemed to be, an agent, legal representative, joint venturer or partner of the other party for any purpose.
9.02 Amendment. This Agreement may not be amended, supplemented or otherwise modified except by an instrument in writing signed by both parties.
9.03 Invalidity. Any of the provisions of this Agreement which are determined to be invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability in such jurisdiction, without rendering invalid or unenforceable the remaining provisions hereof or affecting the validity or unenforceability of any of the terms of this Agreement in any other jurisdiction.
9.04 Waiver. A waiver by either party of a breach or violation of any provision of this Agreement will not constitute or be construed as a waiver of any subsequent breach or violation of that provision or as a waiver of any breach or violation of any other provision of this Agreement.
9.05 Notices. All notices under this Agreement shall be delivered by hand, sent by recognized overnight courier (such as Federal Express, Airborne or UPS), or mailed by certified or registered mail, return receipt requested, postage pre-paid, addressed to the parties at the address set forth in the applicable Order, or to such other address or addresses as may from time to time be given in writing by either party to the other pursuant to the terms hereof. All notices shall be effective upon receipt.
9.06 Force Majeure. In the event that either party is unable to perform its obligations under the terms of this Agreement or an Order (other than the obligation to pay amounts owed under this Agreement or an Order) because of acts of God, strikes, equipment or transmission failure or damage reasonably beyond its control, or other causes reasonably beyond its control, such party shall not be liable to the other for any damages resulting from such failure to perform or otherwise from such causes.
9.07 No Third Party Beneficiary. This Agreement is for the sole and exclusive benefit of TNBI and Customer and will not be deemed to be for the direct or indirect benefit of the clients, affiliates or customers of Customer (collectively, “Third Parties”). The Third Parties are not and will not be deemed to be third party beneficiaries of this Agreement nor to have any contractual relationship with TNBI by reason of this Agreement. Customer hereby agrees to indemnify, defend and hold harmless TNBI from any claim made by any of the Third Parties arising from this Agreement, any Order or the Products provided under this Agreement, including but not limited to attorneys’ fees and costs and expenses incurred by TNBI in connection with any such claim.
9.08 Assignment. Customer may not assign or delegate this Agreement, any Order or all or any part of its rights, responsibilities or duties hereunder or thereunder without obtaining the prior written consent of TNBI; provided however, that no such assignment or delegation (even if consented to by TNBI) shall diminish, reduce or eliminate any of Customer’s obligations under this Agreement or any Order, and Customer shall remain primarily liable for compliance with all terms set forth in this Agreement and any Orders. Customer may not sell, distribute, transfer, sublicense or sublease any Products or the license or other rights granted to it by TNBI hereunder or pursuant to any Order to any third person, whether directly, indirectly or by operation of law, including by merger, stock transfer or otherwise.
9.09 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and permitted assigns.
9.10 Headings. The headings contained in this Agreement are for convenience only and shall not affect the meaning or interpretation of this Agreement.
9.11 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
9.12 Governing Law; Dispute Resolution. This Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provision or rule (whether of the Commonwealth of Pennsylvania or any other jurisdiction). ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT, ANY ORDER OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY MAY BE INSTITUTED IN THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA OR THE COURTS OF THE STATE OF PENNSYLVANIA IN EACH CASE LOCATED IN THE CITY OF PHILADELPHIA, PENNSYLVANIA, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. SERVICE OF PROCESS, SUMMONS, NOTICE OR OTHER DOCUMENT BY MAIL TO SUCH PARTY’S ADDRESS SET FORTH IN THE APPLICABLE ORDER SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT IN ANY SUCH COURT. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR AN ORDER IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY 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, ANY ORDER OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.12.
9.14 Interpretation. For purposes of this Agreement: (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
9.15 Entire Agreement. This Agreement, including all Orders, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior understandings and agreements, whether written or oral, regarding the subject matter hereof.