Terms and Conditions

ALL TRANSACTIONS ARE GOVERNED BY THE ARMSTRONG SOFTWARE, LLC (“Company”) STANDARD TERMS AND CONDITIONS OF SALE. ANY PROPOSAL BY BUYER THAT INCLUDES DIFFERENT OR ADDITIONAL TERMS THAT VARY FROM COMPANY’S TERMS AND CONDITIONS OF SALE ARE OBJECTED TO AND DISALLOWED. NOTWITHSTANDING THE FOREGOING, ANY SUCH COUNTERPROPOSALS BY CLIENT SHALL NOT OPERATE AS A REJECTION OF THE CONTRACT OF SALE, BUT AS A REJECTION OF THE ADDITIONAL OR DIFFERENT TERM(S).  IN THE EVENT OF A CONFLICT BETWEEN THESE STANDARD TERMS AND CONDITIONS AND A WRITTEN PROPOSAL SIGNED BY  THE COMPANY AND  THE CLIENT, THE TERMS OF THE WRITTEN, SIGNED PROPOSAL WILL CONTROL.

NOW, THEREFORE, in consideration of the promises, conditions, covenants and warranties herein contained, the Parties agree as follows:   

1. Rights Granted to Client.
   1. Company hereby grants Client a limited, non-exclusive, non-transferable, revocable, license to use the Product in accordance with the terms of this Agreement.
   2. Company offers access to the Product, app design and customization, and administrative content management as part of this Agreement.
   3. Client will use its logo and branding on the product presented to the End User.
   4. Client may sell advertising space on the Product.
2. Company’s Rights and Obligations. Company warrants and represents that it has the right to license the Product. Company reserves unto itself all rights of every kind and nature except those specifically granted to Client herein.
3. Client’s Rights and Obligations. Client’s rights are limited to those explicitly granted herein. Any other usage of the Product must be approved in writing by Company.

   Client hereby acknowledges Company’s right, title, and interest in and to the Product and agrees not to claim any title to the Product or any right to use the Product except as permitted by this Agreement. All uses of the Product and all goodwill that shall attach thereto that inures to Client shall inure to the benefit of Company. Client shall never challenge or encourage anyone to challenge Company’s rights of or the validity of the Product or any application for registration thereof or any trademark, copyright, or other registration thereof or any of Company’s rights thereto.

   Client shall not (i) decompile or reverse engineer the Product or otherwise attempt to obtain the source code for the Product; (ii) sublicense or allow any other person to use the Product; (iii) use the name or proprietary logo(s) of Company without Company’s prior written consent; (iv) use the Product for any purpose other than those stated herein; (v) use the Product in a manner that interferes with the use of Product by Company or its other customers; or (vi) without giving at least ninety (90) days’ notice to Company, commence development of an app in competition with the Program.

4. Set up. For purposes of this Agreement, Company shall provide Client access to the Product’s administrative dashboard for customization by Client. Company will assist in the set-up of the Product and submit the Product to iTunes and Google Play on Company’s behalf.

5. Amendment of Product. Company may, at its sole discretion, add to, modify, or remove any of the Product features included in the Product, provided that such features do not (in the sole opinion of Company) constitute a material element of the Product or adversely impact the functionality of the Product.
6. Term and Termination of Rights.
   The term of this Agreement shall be 1 year from the date Client completes and signs the Agreement (as defined below) (“Initial Term”). Upon expiration of the Initial Term, the License Registration Fee will renew annually in one-year terms unless terminated by either Party (the “License Term”)

   This Agreement shall be subject to termination at the election of Company, by written notice to Client, where there has been a default in the observance or performance of any material covenant, condition, or agreement herein by Client, and such default has continued for a period of ten (10) days after written notice specifying the same shall have been given to Client

   Auto-renewal of this Agreement shall be subject to termination at the election of the Client or Company, by written notice, with a minimum 30 days notice prior to the date of the auto-renewal. If such notice is not received, the auto-renewal of the License Term will be completed and Client will be subject to any fees due upon renewal

   Upon termination of this Agreement, Client shall cease all use of the Product and return all physical copies of any materials related to the Product.

   Termination or expiration of this Agreement shall not extinguish either Parties’ obligations under this Agreement which by their terms continue after the date of termination or expiration.

7. Payment. Upon entering this Agreement, Client shall pay to Company the contracted annual license. Prior to the start of each License Term, Client will pay the contracted annual license for each subsequent License Term. Company reserves the right to modify the annual fee in its sole discretion upon each renewal year. Upon modification of the fee, Company will notify Client and offer the right to reject any auto-renewals.

8. Support Terms. Company shall regularly upgrade the Product to contain new features and fixes at intervals defined at Company’s sole discretion.

   Company will provide reasonable technical support for the Product. Should Client require technical support, all requests must be submitted to Company at [email protected] or [email protected]  with a detailed description of the problem and the circumstances in which the problem arose.   Company will respond to all technical support requests within (2) two business days.

9. End User Data. Should an End User directly provide Client with End User’s name or email address through the End User’s use of the Product (“End User Contact Information”), Company shall not share the End User Contact Information with any third-party licensor of the App, without Client’s express written permission or unless Company must do so as required by law or as directed by Court order.  This provision shall not apply if the End User independently provides the End User Contact Information to any third-party, including other licensors of the Product.

10. Ownership of Intellectual Property.
    1. Intellectual Property of Company. Company is the exclusive owner of the Product and all of the intellectual property rights associated with the Product, including software and copyrights, even if Company incorporates into the Product suggestions made by Customer.
    2. Intellectual Property of Customer. Client is the exclusive owner of its name, logo(s), trademarks, URLs, and other intellectual property.
    3. Use of Client’s Name. Company may, but shall not be required, advertise that Client uses the Product.
11. Warranty. Each Party represents and warrants to the other Party as follows: (i) it has the full right, power, and authority to enter into this Agreement and to perform all of its obligations hereunder; (ii) this Agreement does not conflict with or will not result in a default or loss of rights under, any other agreement by which either Party is bound; and, (iii) this Agreement constitutes the valid and binding obligation of such Party enforceable in accordance with its terms. For the avoidance of doubt, Company licenses the Product to Client on an “as is” basis and makes no representations or warranties whatsoever with respect to the Product whether or not it will infringe on the rights of third parties, or otherwise.
12. Indemnification. Client shall indemnify and hold harmless Company, its successors, assigns, and licensees and the respective officers, directors, agents and employees, from and against any and all claims, damages, liabilities, costs and expenses (including reasonable attorneys’ fees), incurred or suffered by or threatened against Company in connection with or as a result of any claim brought by or on behalf of any third party person or entity as a result of or in connection with Company’s appearance or association with Client, unless such claim arises from Company’s acts or omissions or arises from or is related to breach of any obligation and/or warranty made by Company hereunder.

    Company shall indemnify and hold harmless Client, its successors, assigns, and licensees and the respective officers, directors, agents and employees, from and against any and all claims, damages, liabilities, costs and expenses (including reasonable attorneys’ fees), incurred or suffered by or threatened against Client in connection with or as a result of any claim brought by or on behalf of any third party person or entity as a result of any damages caused by use of the Product, unless such claim arises from Client’s acts or omissions or arises from or is related to breach of any obligation and/or warranty made by Client hereunder.   Such claims under this provision are limited solely to third-party claims of damage due to security breaches to the End User’s device upon which the End User accessed the Product.

13. Limitation of Claims. EXCEPT TO THE EXTENT SPECIFICALLY PROVIDED OTHERWISE IN THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN THE PARTIES, UNDER NO CIRCUMSTANCES, INCLUDING ANY BREACH OR ALLEGED BREACH OF THIS AGREEMENT BY EITHER PARTY OR ANY OTHER PERSON AND THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY SHALL A PARTY OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, MANAGERS, MEMBERS, PARTNERS, EMPLOYEES, AGENTS, INDEPENDENT CONTRACTORS, AND/OR REPRESENTATIVES HAVE ANY LIABILITY OR OBLIGATION TO THE OTHER PARTY OR TO ANY OF THE OTHER PARTY’S OFFICERS, DIRECTORS, SHAREHOLDERS, MANAGERS, MEMBERS, PARTNERS, EMPLOYEES, AGENTS, INDEPENDENT CONTRACTORS AND/OR REPRESENTATIVES FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES, ANY LOST PROFITS, ANTICIPATED INCOME OR PROFITS OR OTHER SIMILAR DAMAGES, ANY SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES AND/OR OTHER DIRECT DAMAGES. NOTWITHSTANDING THE FOREGOING OR ANY CONTRARY PROVISION OF THIS AGREEMENT, NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT ANY PARTY’S INDEMNITY OBLIGATIONS FOR THIRD-PARTY ACTIONS, CLAIMS, OR PROCEEDINGS.

14. Limitation of Damages. COMPANY’S TOTAL LIABILITY UNDER OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OR FORM OF ACTION, AND WHETHER BEFORE OR AFTER ITS TERMINATION, SHALL NOT EXCEED THE TOTAL OF ALL AMOUNTS PAID TO THE COMPANY BY THE CLIENT.

15. Successors/Assigns. This Agreement shall be binding upon and inure to the benefit of Company, its successors and assigns. This Agreement and the rights hereunder are personal to Client and shall not be transferred, assigned, sub-contracted or sublicensed in any manner, pledged or otherwise encumbered by Client, whether voluntarily, involuntarily, by operation of law or otherwise (“Transfer”). Any Transfer shall be void and of no force and effect unless permitted in accordance with the express provisions hereof.
16. Injunctive Relief. Client acknowledges that monetary relief would not be an adequate remedy for a breach or threatened breach by Client of the provisions of this Agreement and that Company shall be entitled to the enforcement of this Agreement by injunction, specific performance, or other equitable relief, without prejudice to any other rights and remedies that Company may have.

17. Governing Law. This Agreement will be governed by the laws of the State of Missouri, without reference to its conflict of law principles and jurisdiction of any and all such disputes will lie in the state and federal courts sitting in Lincoln County, Missouri. Client consents to personal jurisdiction in the state and federal courts located therein and hereby waives all defenses of lack of personal jurisdiction and forum non-conveniens.

18. Notice. Except as otherwise provided herein, all notices that either party is required or may desire to give the other party shall be in writing to the address noted in the signature block of the Agreement. Electronic mail is permissible, but will only be considered sufficient notice if the non-sending party affirmatively confirms receipt.

Miscellaneous.

• If any of the provisions of this Agreement is or becomes illegal, unenforceable or invalid (in whole or in part for any reason), the remainder of this Agreement shall remain in full force and effect without being impaired or invalidated in any way.

• Any rights or obligations contained herein that by their nature should survive termination of the Agreement shall survive, including, but not limited to representations, warranties, intellectual property rights, indemnity obligations, and confidentiality obligations.

• Any failure of either party to enforce any provision of this Agreement, or any right or remedy provided for therein, shall not be construed as a waiver, estoppel with respect to, or limitation of that party’s right to subsequently enforce and compel strict compliance or assertion of a remedy.

• This Agreement, along with all attachments, represents a single agreement, as well as the entire agreement with respect to the subject matter. This Agreement supersedes any prior agreement between the parties, whether written or oral, with respect to the subject matter, and may be modified or amended only by a writing signed by the party to be charged.