TourTools® SOFTWARE LICENSE AGREEMENT
1 This Licensing Agreement is entered into by DataVast Technologies, Copley, Ohio (OWNER), and TourTools Users (USER).
2 Except for all licensee data, DataVast Technologies shall own all rights, title and interest in and to all intellectual property contained within TourTools® Tour Reservation and Operation Software, including any patent, copyright, trademark, trade secrets and similar rights in the software or any other deliverable or work product arising out of or in connection with performance by DataVast Technologies pursuant to this Agreement. The parties acknowledge that performance hereunder may result in the development by DataVast Technologies of new concepts, software, methods, techniques, processes, adaptations and ideas, in addition to DataVast Technologies prior technology, which may be embodied in DataVast Technologies deliverables. The parties agree that the same shall belong to DataVast Technologies exclusively. The parties understand and agree that future tests may be performed by DataVast Technologies pursuant to work orders and may involve joint development of new technology or software. Unless a work order specifically states circumstances to the contrary, all such development shall become the exclusive property of DataVast Technologies.
3 Subject to the payment of the license fee to OWNER, OWNER grants to USER and USER hereby accepts a personal, non-exclusive and nontransferable license to use the PC version of TourTools® Tour Reservation and Operation software. A reference manual will be supplied with the system. The documentation will apply to the base system and will not contain any references to customization requested by the USER. The TourTools system will be delivered in FileMaker/Claris. FileMaker/Claris software is not included in the license fee.
4 The USER will pay a one-time Site License fee (or a monthly license subscription fee) plus an additional amount per user. Installation of the TourTools® files will be performed by the OWNER’S representative, either on-site or online.
5 Unless otherwise terminated or canceled as provided herein, the term of this Agreement, and the license granted herein, shall commence on the effective date hereof, shall continue until USER discontinues the licensed use of the software subject to the provisions of this document.
6 The license granted herein shall become null and void upon the termination of this Agreement. Upon any termination of this Agreement or any part hereof, all amounts owed by USER to OWNER shall not be refundable and shall become immediately due and payable. Without limiting any of the above provisions, in the event of termination by owner of this Agreement, USER shall continue to be obligated for any payments due. The termination of this Agreement shall be in addition to and not in lieu of any equitable or other remedies available to either OWNER or USER.
Software Operating Environment
7 TourTools® is written to operate in FileMaker/Claris environment on a Windows server and on Windows or Apple workstations. Failure to follow recommended guidelines will not be construed as a breach of this AGREEMENT but may result in software failure, loss of data or damage to the software. Specifications are subject to change and the specifications set by FileMaker/Claris and posted to the web site www.filemaker.com shall take precedence.
8 FileMaker/Claris Server must run on a Windows Server
9 A copy of FileMaker/Claris Pro installed on each computer in compliance with the FileMaker/Claris Pro licensing agreement.
10 The OWNER cannot warrant or guarantee the performance of TourTools® on any computer whether or not it meets these specifications due to the uncertain nature of the interaction among other software loaded on the computer or available on the USER’S network, or due to variations in computer hardware. The OWNER’S support staff will make reasonable efforts to assist the USER with the diagnosis and solution to problems related to networks, hardware and software interaction but the responsibility for those solutions is the sole responsibility of the USER.
INSTALLATION & TRAINING
11 The OWNER agrees to install the TourTools® software on the agreed upon date provided deposits have been received. TourTools® Online pages will be installed by the agreed upon date provided USER has set up a web server in accordance with the specifications on the FileMaker/Claris website. The USER will provide access to the computer network and an experienced computer network technician (on call for network issues) so that the software can be installed and personalized for the USER. The personalization process is limited to the addition of the USER’S name, address, and company logo and phone numbers to appropriate database layouts. Additional training is available at either on-line or onsite according to the fee structure agreed upon. The hours of service for each day shall not exceed 10 hours, including travel time and breaks.
This License allows you to:
12 Use one copy of the Software on a network server or host computer allowing for X (NUMBER) computers to log in at the same time, as per the Number of Users specified in Paragraph 4. To “use” the Software means that the Software is either loaded in the temporary memory (i.e., RAM) of a computer or installed on the permanent memory of a computer (i.e., hard disk, etc.).
13 Make one copy of the Software in machine-readable form solely for backup purposes. As an express condition of this License, you must reproduce on each copy any copyright notice or other proprietary notice that is on the original copy supplied by DataVast Technologies.
14 Permanently transfer all your rights under this License to another party by providing to such party all copies of the Software licensed under this License together with a copy of this License and the accompanying written materials, provided that the other party reads and agrees to accepting the terms and conditions of this License. USER must notify OWNER of the transfer and a copy of this document will be produced and executed by the OWNER and the TRANFERREE. License may be transferred only with the majority of the USER’s company assets as in the sale of the company. OWNER reserves the right to assess a reasonable fee to cover the transfer paperwork.
15 OWNER agrees to hold all USER’S data, product information, business practices and trade secrets to be proprietary information and as such will be held strictly confidential. All reasonable and prudent precautions will be taken by OWNER to protect copies of USER’S data and product information while in the possession of the OWNER from use or access by unauthorized persons. All copies of the USER’S data and product information in the possession of the OWNER will be destroyed or returned to the USER at the termination of this agreement.
16 The Software contains trade secrets in its human perceivable form and, to protect them, you may not REVERSE ENGINEER, DECOMPILE, DISASSEMBLE OR OTHERWISE REDUCE THE SOFTWARE TO ANY HUMAN PERCEIVABLE FORM. YOU MAY NOT MODIFY, ADAPT, TRANSLATE, RENT, LEASE, LOAN OR CREATE DERIVATIVE WORKS BASED UPON THE SOFTWARE OR ANY PART THEREOF.
17 This License is effective until terminated. If USER fails to comply with any provision of this License, USER will be notified in writing that this License has been terminated and will be given 45 days to cure the problem. Upon such termination USER will delete the Software from all computers, all accompanying written materials and all copies thereof.
18 The Software licensed to you contains features that are protected by certain passwords. You are not authorized to add, remove or change such passwords, and only DataVast Technologies is authorized to add, remove or change such passwords. Attempting to change a password can disable the system.
19 As with any software solution, TourTools® performs a wide variety of tasks in a straightforward, precise manner, subject to accurate and consistent data entry on the part of the USER. The USER acknowledges that policies and procedures vary from one business to another and while every effort has been made to document policy-related issues implemented in the software, the OWNER is not responsible for any inconsistencies between the policy-related functions of the software and the polices of the USER.
20 If it is determined by the OWNER that a published feature(s) of the TourTools® solution does not perform as intended, that feature(s) will be adjusted in the USER’S system at no charge to the USER. This applies to published features of the basic system as well as features added to the system at the USER’S request. At the sole discretion of the OWNER the adjustment(s) will be made during a customization or training work session requested by the USER or during a work session requested by the OWNER. Any changes or additional customization of features beyond the function(s) intended by the OWNER will be made only under work order requested and signed by the USER and work will be performed at current programming rates.
21 Other than those expressed herein, there are no warranties, expressed or implied, including but not limited to, any warranties of merchant ability or fitness for particular purpose. USER shall be solely responsible for the selection; installation, use, and suitability of the software and OWNER shall have no liability, therefore.
22 Owner shall indemnify, defend and hold the User harmless from third party claims alleging that User’s use of the licensed software infringes the proprietary rights of such third party. In the event User is prevented from utilizing the licensed software pursuant to action by a 3rd party, Owner shall be required to refund to User all amounts paid by User to the Owner pursuant to this Agreement.
23 In the event of any termination/cancellation of this Agreement or any license granted to USER thereunder, OWNER may:
24 Require that USER cease any further use of software or any portion thereof, remove any copies of the software from the USER’S computers and immediately return the software and any remaining copies thereof to OWNER; and
25 Cease performance of all OWNER’S obligations thereunder without liability to USER.
26 IN NO EVENT SHALL OWNER BE LIABLE TO USER FOR ANY DAMAGES RESULTING FROM OR RELATED TO ANY FAILURE OF THE SOFTWARE PRODUCTS, INCLUDING, BUT NOT LIMITED TO LOSS OF DATA, OR DELAY OF THE OWNER OF THE DELIVERY OF THE LICENSED PRODUCT OR DELAY OF TECHNICAL SERVICE BY THE OWNER.
27 OWNER WILL MAKE A GOOD FAITH EFFORT TO PERFORM AND COMPLETE ANY WORK ORDER SERVICE WITHIN THE TERMS SPECIFIED IN THE WORK ORDER UPON RECEIPT OF THE SIGNED WORK ORDER PROVIDING THE USER’S ACCOUNT IS IN GOOD STANDING.
28 IN NO EVENT SHALL OWNER BE LIABLE TO USER FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LOST PRODUCTS ARISING OUT OF OR RELATED TO THIS LICENSED AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF, EVEN IF OWNER HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
29 The USER agrees to indemnify and hold harmless the OWNER for any software or hardware failures or malfunctions and/or data losses and any losses and/or damages that may result from those software or hardware failures or malfunctions and/or data losses.
30 Any claim arising out of or related to this Agreement must be brought no later than one year after it has accrued.
31 In the event of any disagreement regarding performance under or interpretation of this Agreement and prior to the commencement of any formal proceedings, the parties shall continue performance as set forth in this Agreement and shall attempt in good faith to reach a negotiated resolution by designating a representative of appropriate authority to resolve the dispute. Neither party shall file an action nor institute legal proceedings with respect to any dispute, controversy or claim arising out of, relating to, or in connection with this Agreement until (a) the aggrieved party has given the other party written notice of its grievance setting forth the nature of the dispute, the amount involved, if any, and the remedies desired, and delivering the same by certified mail; (b) the other party has failed to provide prompt and effective remedy; (c) the aggrieved party has requested senior executives for both parties to meet and discuss the matter in order to consider informal and amicable means of resolution; and (d) either such meeting failed to occur within 15 days after such request or the meeting did not produce a mutually satisfactory resolution of the matter. In the event a mutually satisfactory resolution of the matter does not result from the above, OWNER and USER must agree upon a third-party representative with FileMaker/Claris development experience. If the parties cannot resolve the dispute within sixty (60) days or as otherwise mutually agreed, the parties shall be entitled to pursue all other legal remedies available to them. USER shall retain all rights granted by this License while the dispute remains unresolved.
32 DataVast Technologies warrants for a period of ONE HUNDRED AND TWENTY (120) days from your date of installation that (i) the media on which the Software is recorded will be free from defects in materials and workmanship under normal use, and (ii) the Software as provided by DataVast Technologies will substantially conform to the DataVast Technologies published specifications for the Software contained in the User Manual. DataVast Technologies entire liability and your sole and exclusive remedy for any breach of the foregoing limited warranty will be, at DataVast Technologies option, replacement of the media, refund of the license fee or repair or replacement of the Software.
LIMITATION OF REMEDIES AND DAMAGES
33 In no event will DataVast Technologies, its parent or subsidiaries or any of the licensors, directors, officers, employees or affiliates of any of the foregoing be liable to you for any consequential, incidental, indirect or special damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information and the like), whether foreseeable or unforeseeable, arising out of the use of or inability to use the Software or accompanying written materials, regardless of the basis of the claim and even if DataVast Technologies or a DataVast Technologies representative has been advised of the possibility of such damage. DataVast Technologies’ liability to you for direct damages for any cause whatsoever, and regardless of the form of the action, will be limited to the greater of $500.00 or the money paid for the Software that caused the damages.
34 THIS LIMITATION WILL NOT APPLY IN CASE OF PERSONAL INJURY ONLY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
35 This License will be construed under the laws of the State of Ohio. If any provision of this License shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this License will remain in full force and effect.
36 This Agreement is the sole Agreement between the parties relating to the subject matter hereof and supersedes all prior understandings, writings, proposals, representations, or communication, oral or written, of either party. The Agreement may be amended only in writing executed by the authorized representative of both parties.
37 Failure to comply with any of the terms of this agreement, at the discretion of the owner, will result in suspension of this agreement or termination of this agreement.
38 This Agreement and licenses granted thereunder may be transferred or assigned by USER to a purchaser of substantially all of the business assets (TRANSFEREE) of USER without the prior written consent of OWNER. It is the responsibility of USER to inform Transferee of the terms of this agreement and TRANSFEREE shall be bound to the terms of this agreement. This Agreement shall be interpreted in accordance with the substantive laws of the State of Ohio and any legal action filed as a result of this Agreement shall be venued in Guernsey County, Ohio.
TourTools® License Extension – TourTools® Online
The purpose of these files is to connect pages of the USER’S web site with the TourTools® files hosted in the USER’S office. The function of this connection is to enable visitors to the USER’S web site to interact with the TourTools® databases. Specifically, it will enable visitors to review itineraries published in TourTools® on UESER’s web site, make a reservation on a group tour, make a payment for the reservation and review group leader reports.
There will be a review and revision period as each part of the site is presented to the USER. USER will be permitted to make changes to the look and function of the web pages at this time. USER acknowledges that additions to the project or significant changes to the functions as outlined in this document or design may require additional fees. Changes to the functionality of the system after programming has been completed that exceed what can be reasonably considered “fine-tuning” may also be subject to additional fees.
There will be a period of acceptance extending through the period of time 2 months after the first group tour itinerary is made accessible to travelers on USERS’ web site. During this period USER must notify OWNER of any issues of functionality or design that are not in compliance with this document. In the absence of such notification, the project will be considered complete.