• Parties. This agreement is between Companion Software. Inc. (PROVIDER) and the party as specified in the on-line application (CLIENT).
• Service. This agreement is for The Commission Companion Version 5 software application, database, online Customer Center , and Agent Online services only (SOFTWARE). Other software services by the same PROVIDER are available at www.companion-software.com and are subject to another agreement.
• Fees. CLIENT agrees to pay for the service fees as specified at the web site and on CLIENT invoice.
• Price change. PROVIDER has the right to change the price of the services to reflect a change in the cost of the service, or other reasons.
• Policies. CLIENT agrees to abide by PROVIDERS " Acceptable use policy " and " Privacy Statement ". PROVIDER reserves the right to change the policies from time to time to reflect the dynamic nature of the Internet. Both policies are available on-line any time or as a hard copy by request only.
• Term. The Agreement will remain in full force as long as CLIENT service and maintenance accounts current and paid in full.
• Copyright. Companion Software, Inc. is the owner of the Copyright of all software, database designs, icons, web forms, text, and pictures associated with the use of SOFTWARE. CLIENT is notified hereby that there are severe penalties provided by the Law for Copyright infringement.
• Data ownership. PROVIDER owns the database design and all servers hosting the database. CLIENT owns the data contained in database hosted by PROVIDER.
• Data backup. CLIENT is solely responsible for backup, restore, and general maintenance of data in CLIENT database.
• Maintenance. PROVIDER is offering and CLIENT has the option to subscribe for additional maintenance services. Maintenance plans vary depending on the needs of the CLIENT. The maintenance plans and the monthly fees are listed at the web site.
• Third parties. Access to SOFTWARE by any and all third party software or hardware vendors, consultants, technicians, or support personnel is strictly prohibited. PROVIDER may grant authorization to third parties at its discretion if provided with a written request from CLIENT. Failure of CLIENT to protect the legal copyrights of SOFTWARE by PROVIDER will result in termination of this agreement.
• Payments. CLIENT agrees to pay up front for all “flat fee” services and upon receiving of invoice for all hourly bills.
• Late payment. CLIENT agrees to pay additional late fee of 1.5% per month or the maximum permitted by the law of the amount due and not paid.
• No Refunds. PROVIDER will not refund collected fees unless such refund is explicitly authorized by this agreement.
• Limited liability. PROVIDER SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE PRODUCT, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOSS OF USE, LOST DATA, LOSS OF PRIVACY, DAMAGES TO THIRD PARTY EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY WHETHER ANY CLAIMS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE OR OTHERWISE. FURTHER, PROVIDER WILL NOT CENSOR ANY CONTENT ON THE INTERNET. IT WILL BE CLIENT'S RESPONSIBILITY FOR THE USAGE OF HIS CONTENT AND ANY CONSEQUENCES OF THIS USAGE.
• Indemnification. CLIENT shall indemnify, defend by counsel reasonably accepted by PROVIDER, protect and hold PROVIDER harmless from and against any and all claims, liabilities, losses, costs, damages, expenses, including consultants' and attorneys' fees and court costs, demands, causes of action, or judgments directly or indirectly arising out of or related to the web design and other services provided by PROVIDER to the CLIENT.
• Entire Agreement. This Agreement constitutes the entire understanding and contract between the parties and supersedes any and all prior and contemporaneous, oral or written representations, communications, understandings and agreements between the parties with respect to the subject matter hereof, all of which representations, communications, understandings and agreements are hereby canceled to the extent they are not specifically merged herein. The parties acknowledge and agree that neither of the parties is entering into this Agreement on the basis of any representations or promises not expressly contained herein.
• Modification. This Agreement shall not be modified, amended, canceled or in any way altered, nor may it be modified by custom and usage of trade or course of dealing, except by an instrument in writing and signed by both of the parties hereto.
• Waiver. Performance of any obligation required of a party there under may be waived only by a written waiver signed by the other party, which waiver shall be effective only with respect to the specific obligation described therein. The waiver by either party hereto of a breach of any provision of this Agreement by the other shall not operate or be construed as a waiver of any subsequent breach of the same provision or any other provision of this Agreement.
• Severability. If any provision of this Agreement shall be unlawful, void, or for any reason, unenforceable, it shall be deemed severable from, and shall in no way affect the validity or enforceability of, the remaining provisions of this Agreement, which shall remain valid and enforceable according to its terms.
• Governing Law. This Agreement was entered into in the State of California and its validity, construction, interpretation and legal effect shall be governed by the laws and judicial decisions of the State of California applicable to contracts entered into and performed entirely within the State of California .
• Authority to Execute. Each of the parties to this Agreement represents and warrants that it has full power to enter into this Agreement and that it hasn't assigned, encumbered, or in any manner transferred all or any portion of the claims covered by this Agreement.
• No Partnership or Agency. Nothing in this Agreement shall be construed as creating a joint venture, partnership, agency, employment relationship, franchise relationship or taxable entity between the parties, nor shall either party have the right, power or authority to create any obligations or duty, express or implied, on behalf of the other party hereto, it being understood that the parties are independent contractors vis-à-vis one another.
• No Third Party Beneficiaries. Nothing contained in this Agreement, express or implied, shall be deemed to confer any rights or remedies upon, nor obligate any of the parties hereto, to any person or entity other than such parties, unless so stated to the contrary.
• Excused Performances. PROVIDER shall not be deemed to be in default of or to have breached any provision of this Agreement as a result of any delay, failure in performance or interruption of the Services, resulting directly or indirectly from acts of God, acts of civil or military authority, civil disturbance, war, strikes or other labor disputes and disturbances, fire, transportation contingencies, shortages of facilities, fuel, energy, labor or materials, or laws, regulations, acts or order of any government agency or official thereof, other catastrophes, or any other circumstances beyond PROVIDER's reasonable control. In the event of any such delay or failure, performance of the Services shall be deferred to a date and time mutually agreeable by the parties.
