Private Label Software Service Agreement
Key Business Terms
THIS PRIVATE LABEL SOFTWARE SERVICE AGREEMENT (the "Agreement") is made as of 26th day of February, 2017 by and between The City Broker, LLC, a Washington Limited Liability Company doing business as Xindexer (hereinafter "XINDEXER"), and Licensee as defined below. XINDEXER is an affiliate of Mpyre Software Services, the makers of SenukeX SEO software. XINDEXER's integration into SenukeX software is contingent upon XINDEXER provided free indexing service to every valid SenukeX licensed user (hereinafter "FREE URLs"). Additional URLs may be purchased as described in section H below (hereinafter "PREMIUM URLs").
Schedule A - LICENSE: XINDEXER hereby licenses to the Licensee the right to use the XINDEXER blog network for the purposes of getting the Licensee's submitted URLs indexed in the major search engines (Google, Bing, Yahoo, etc) durng the term.
Schedule B - FREE SERVICE: Licensee must maintain an active, paying license with SenukeX in order to use the FREE URLs program. Licensee must submit all URLs through the "indexer project" within the SenukeX software. Licensee is entitled to store 167.67 URLs per SenukeX License (The SenukeX standard version is valid for 3 licenses and 500 URLs to be stored in the XINDEXER database at any one time) and to have 16.67 URLs/Day per SenukeX license posted to the XINDEXER blog network (a standard SenukeX license is valid for 50 URLs/day to be posted to the XINDEXER blog network).
Schedule C - UPGRADED SERVICE: Licensee must maintain an active, paying license with SenukeX in order to use the PREMIUM URLs program. Licensee must submit all URLs through the "indexer project" within the SenukeX software. Lincensee is entititled to store 60 times the number of PREMIUM URLs as described in section G and to have each PREMIUM URL posted to the XINDEXER blog network on a daily basis as described in section G. Members of the PREMIUM URLs program are still entitled to the FREE URLs program.
Schedule D - SERVICE:URLs that the Licensee submits to XINDEXER are stored in a queue and every 24 hours, XINDEXER will select the required number of URLS and post these URLs a minimum of 5 times each on the XINDEXER blog network for members using the FREE service and 10 times each on nthe XINDEXER blog network for members paying for the PREMIUM service.
Schedule E - TERM: The term of this agreement is month to month and may be cancelled at any time. No refunds will be given for cancellations after the monthly billing cycle; the Licensee may continue to use the system after cancellation until the next billing cycle is due. The initial Term shall be for twelve (12) months from the date the Software is first made available to Licensee. This Agreement may be renewed for successive one year periods thereafter by mutual agreement of the parties.
Schedule E - FEES: The monthly service fees are based on a per URL per Day basis, with prices ranging from 0.0056 cents per URL per Day to 0.01 cents per URL per Day depending upon which package is selected. XINDEXER reserves the right to change the pricing structure at any time. Payment shall be due on the same day of each calendar month during the Term (payments otherwise due on the 29th, 30th or 31st day of the month for each month during which there is no such dayi shall be due on the final day of such month). The first payment shall be due on the date the Blog Network is first made available to the Licensee. The Licensee hereby authorizes XINDEXER to charge any and all payments properly due under this agreement against their Paypal account as listed on the Licensee's profile page.
Schedule H - URL Packages: URL package prices and details can be found on the XINDEXER homepage: http://xindexer.com. XINDEXER reserves the right to offer discounts from time to time.
Private Label Blog Network License Agreement
Standard Terms & Conditions
The terms and conditions contained or referred to in the Key Terms shall have the same meanings as ascribed thereto when used in these Standard Terms and Conditions. In the event of conflict the Key Terms shall prevail.
- Definitions. As used herein, the following terms shall have the following meanings:
- "Services" means those services to be provided by or on behalf of XINDEXER as set forth in Schedule E.
- "Software" means the XINDEXER Consumer Data infrastructure, next generation website creation technology, and underlying software.
- "Term" shall mean the term of the Agreement as set forth in Schedule D.
- Terms of Service:
- Term: During the term and subject to the provisions hereof and subject to the modification set forth in Schedule A, XINDEXER hereby grants the Licensee a non-assignable license to us the blog network during the Term to upload the alloted amount of storage URLs into the database. Each day, XINDEXER will transfer the alloted number of URLs into the active table for posting on the blog network the following day.
- Results: No guarantee is made regarding the number of URLs that are indexed in the major search engines.
- Exclusivity: Xindexer has entered into an exclusive agreement with MPyre Software Services. This agreement requires that all licensee's of the Xindexer service must maintain an active, paid subscription to SenukeX. IF said subscription is allowed to lapse, is cancelled or revoked for any reason, the licensee will not be able to upload any URLs into the Xindexer blog network. It is the Licensee's reponsibility to cancel this service agreement if such a circumstance occurs.
- Storage: Licensee may store up to 10 times the daily alloted URLs in the XINDEXER dactabase at any one point. The daily alloted URL limit is based upon which package the Licensee chooses to use.
- Archive: XINDEXER will store archived URLs (URLs that have been placed within the blog network and are waiting for determination if they have been indexed by Google) for a period no longer than 30 days. XINDEXER reserves th eright to shorten this archive period based on system requirements.
- Rate and Term of Payment..
- Licensee agrees that it will pay XINDEXER those fees set forth in Schedule H at the times and in the amounts set forth therein. All payments shall be sent and made payable to XINDEXER via Paypal. There shall be no refunds by XINDEXER of payments hereunder. Licensee shall make payment through XINDEXER's online credit card payment processing system. Licensee shall assure that payments are timely authorized hereunder and that, in addition to and in lieu of any other remedies XINDEXER shall have hereunder, XINDEXER shall have no further obligation to provide access to the blog network.
- All payments shall be in U.S. dollars with no deductions for currency conversion or wiring charges. As time is of the essence with respect to all payments due hereunder, interest shall be charged against Licensee at the rate of one point five percent (1.5%) per month or the maximum rate permitted by law, whichever is lower, and shall accrue on each unpaid amount from the first day payment becomes due through the date of payment.
- Blog Network Use.
- Standards: Licensee acknowledges that XINDEXER does not allow obscene, lewd or scandalous materials to be included in the Licensee Data or otherwise posted on the Generated Site. XINDEXER reserves the right to determine whether any content posted is of an obscene, lewd or scandalous nature, and reserves the right, at its sole and absolute discretion, to remove such material and take such additional corrective action as it deems necessary.
- Support: XINDEXER will provide licensee reasonable email and online forum support.
- No Unlawful Use: Licensee agrees not to use the Software or Generated Site for any purpose that is unlawful or prohibited by these terms, conditions, and notices. Licensee may not use the Software or Generated Site in any manner that could damage, disable, overburden, or impair any XINDEXER website or service (or the network(s) connected to any XINDEXER website or service) or interfere with any other party's use and enjoyment of any XINDEXER website or service. Licensee may not attempt to gain unauthorized access to any XINDEXER website or service, other registrations, accounts, computer systems, or networks connected to any XINDEXER website or service, through hacking, password mining, or any other means. Licensee may not cheat or steal or obtain or attempt to obtain any materials or information through any means not intentionally made available through any XINDEXER website or service. Licensee agrees to be solely responsible for and assure Licensee's use of the Software, the Generated Site and the Licensee Data complies with all applicable laws, ordinances, regulations and other governmental requirements including, but not limited to, compliance with the Real Estate Settlement Procedures Act ("RESPA").
- U.S. GOVERNMENT RESTRICTED RIGHTS AND EXPORT RESTRICTIONS. U.S. GOVERNMENT RESTRICTED RIGHTS: The Generated Site and the Software are provided with RESTRICTED RIGHTS. Use, duplication or disclosure is subject to restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer Software--Restricted Rights at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Consumer Data and Computer Software clause at DFARS 252.227-7013, and in similar clauses in the NASA FAR supplement, as applicable. Manufacturer is The City Broker, LLC, 2950 New Market Street, Suite 101-241, Bellingham, Washington 98226. Licensee is responsible for complying with all trade regulations and laws both foreign and domestic. Licensee acknowledges that none of the Software or the Generated Site or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, Sudan, North Korea, Iran, Syria or any other country subject to a U.S. embargo; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Denied Parties List or Entity List. Licensee represents and warrants that (i) no U.S. federal agency has suspended, revoked, or denied Licensee export privileges, (ii) Licensee is not located in or under the control of a national or resident of any such country or on any such list, and (iii) Licensee will not export or re-export the Software or the Generated Site to any prohibited county, or to any prohibited person, entity, or end-user as specified by U.S. export controls.
- Security and Passwords. Upon registration, Licensee must select a User ID and password. Licensee may not pick account names or user IDs that violate anyone's trademarks, publicity rights or other proprietary materials. Licensee is exclusively responsible for maintaining the confidentiality of Licensee passwords and for any harm resulting from disclosure or from use by any person of Licensee password. Licensee is responsible for all uses of Licensee user names and passwords, whether or not authorized by Licensee. XINDEXER will never ask for passwords; as such Licensee is advised to never disclose passwords. There may be an additional charge to reissue lost passwords. Licensee acknowledges that although XINDEXER may offer a feature that allows one to "save" or "remember" a password, this feature may make it possible for third parties to access Licensee's computers or network. Use of password memory features by Licensee is exclusively at Licensee's sole risk.
- Privacy. Licensee's private communications and other personally identifiable information will not be disclosed to third parties except in furtherance of a transaction or inquiry that Licensee requests, or as set forth in this section. XINDEXER may hire other companies to provide limited services on our behalf, including answering customer questions about products or services, sending postal mail and processing registration. XINDEXER will only provide those companies the information they need to deliver the service, and they are prohibited from using that information for any other purpose. Licensee agrees that XINDEXER may communicate with Licensee via email, instant messaging, and any similar technology for any purpose relating to the services. Licensee understands that XINDEXER or its representatives may monitor all communications made by or received while using the Software or the Generated Site. Licensee hereby consents to the extraction of hardware system profile Licensee Data related to operation of the service from any computer that logs on to site using Licensee accounts. XINDEXER may disclose Licensee's personal information if required to do so by law or in the good faith belief that such action is necessary to: (a) conform to the edicts of the law or comply with legal process served on XINDEXER; (b) protect and defend the rights or property of XINDEXER, or (c) act in urgent circumstances to protect the personal safety of users of XINDEXER, its Internet sites, or the public.
- Third Party Links. XINDEXER may provide links to or from its websites with third party websites. XINDEXER has no control over the content, privacy protection practices, or other aspects of any linked site. Licensee acknowledges and agrees that XINDEXER is not responsible for the availability of these resources and does not endorse any of the content, products, advertising or any other materials on or available from such sites or resources. Accordingly, Licensee acknowledges that XINDEXER is not liable for any loss or damage which occurs as a result of using or relying on the content, goods and services found on these other sites. XINDEXER shall not include any third party links on the Generated Site without the prior written consent of Licensee.
- No Service Guarantee. XINDEXER provides its services on a commercially reasonable basis and does not guarantee that Licensee will be able to access or use the services at times or locations of their choosing. XINDEXER will use good faith efforts to assure a ninety-eight percent (98%) or better up-time performance level for the Software except as maintenance and upgrades require. Licensee agrees that XINDEXER will not be liable to Licensee or to any third party for any modification, suspension or discontinuance of the service.
- Termination. Without prejudice to any other rights, XINDEXER shall have the right to terminate the license granted under this Agreement upon written notice to Licensee at any time if:
- Licensee shall fail to make any payment due hereunder or to deliver any of the statements herein referred to, and if such default shall continue for a period of five (5) days after receipt of written notice thereof.
- Licensee shall discontinue its business, Licensee shall make any assignment for the benefit of creditors, or shall file any petition under Chapters 10, 11 or 12 of Title 11, United States Code, or file a voluntary petition in bankruptcy, or be adjudicated a bankrupt or insolvent, or if any receiver is appointed for its business or property, or if any trustee in bankruptcy, or insolvency shall be appointed under the laws of the United States government or of the several states. In the event this license is so terminated, Licensee, its receivers, representatives, trustees, agents, administrators, successors and/or assigns shall have no right to sell, exploit or in any way deal with any of the Licensed Articles or any carton, container, packing or wrapping material, advertising, promotional or display material pertaining thereto, except with and under the special consent and instructions of XINDEXER, in writing, which they shall be obligated to follow.
- If Licensee shall fail to perform any other material term or condition of this Agreement and not cure such failure within thirty (30) days after Licensee's receipt of written notice thereof.
- Termination of the license under the provisions of this Section shall be without prejudice to any rights which XINDEXER may otherwise have against Licensee. Notwithstanding any termination or expiration of this Agreement, XINDEXER shall have and hereby reserves all rights and remedies which it has or which are granted to it by operation of law, to enjoin the unlawful or unauthorized use of the Software and the Generated Site.
- Licensee may terminate this Agreement for convenience at any time upon delivery of 60 days' advance written notice to XINDEXER and tender of payment of any outstanding portion of the Customization Fee (as defined below) and other amounts due and owing at the time of termination.
- Warranties, Representations, Indemnification, and Limitation of Liability.
- Disclaimer of Warranties: Except as expressly set forth in these terms and conditions, Licensee acknowledges and agrees that the Software and the Generated Site are provided on an "AS IS" basis without any warranty whatsoever. TO THE FULLEST EXTENT PERMITTED BY LAW, XINDEXER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED, AND STATUTORY OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS AND ANY AND ALL LIABILITY FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFIT), EXEMPLARY OR PUNITIVE DAMAGES (EVEN IF XINDEXER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING OUT OF THIS AGREEMENT OR ANY CONSEQUENCES WHICH FLOW FROM IT. SOME STATES DO NOT ALLOW LIMITATIONS ON OR EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN SUCH STATES, THE ABOVE EXCLUSIONS MAY NOT APPLY TO LICENSEE. XINDEXER DISCLAIMS ANY WARRANTIES FOR OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SITE, AS WELL AS FOR ANY INFORMATION OR ADVICE RECEIVED THROUGH THE SITE OR THROUGH ANY LINKS PROVIDED IN THE SITE. NEITHER XINDEXER NOR ANY THIRD-PARTY CONTENT PROVIDER MAKES ANY WARRANTY WITH RESPECT TO ANY CONTENT, INFORMATION, SERVICES, OR PRODUCTS PROVIDED THROUGH OR IN CONJUNCTION WITH THE SITE.
- Representations: EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, XINDEXER MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS REGARDING THE SOFTWARE, THE GENERATED SITE, THE SUFFICIENCY OF SITE STORAGE AND BACK-UP SYSTEMS. ALL SUCH INFORMATION AND RELATED GRAPHICS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. XINDEXER represents and warrants that (i) it has title to and/or the unrestricted authority to grant Licensee the License to use the Software; (ii) XINDEXER IS AND WILL REMAIN IN COMPLIANCE WITH ALL OF ITS OBLIGATIONS HEREUNDER; (iii) the operation of the Software will substantially conform to XINDEXER's specifications for the Software; (iV) XINDEXER has taken and will take commercially reasonable precautions to ensure that the Software and the Generated Site are free from viruses, malicious codes or commands which would delete, alter, erase, damage or otherwise interfere with Licensee's or an end-user's use of the Software and/or the GenerateD Site and (v) XINDEXER has and shall continue to comply with all applicable federal, state and local laws. LICENSEE represents and warrants that (i) it has title to and/or the unrestricted authority to grant XINDEXER the License to use the licensee data; (ii) LICENSEE IS AND WILL REMAIN IN COMPLIANCE WITH ALL OF ITS OBLIGATIONS HEREUNDER; (iii) LICENSEE will take commercially reasonable precautions to ensure that ALL LICENSEE DATA LOADED, SUBMITTED AND/OR TRANSMITTED USING THE SOFTWARE IS FREe from viruses, malicious codes AND commands; and (iv) LICENSEE IS and shall continue to comply with all applicable federal, state and local laws INCLUDING, BUT NOT LIMITED TO, ITS OBLIGATION TO ASSURE rESPA COMPLIANCE WITH RESPECT TO USE OF THE SOFTWARE AND THE GENERATED SITE.
- Indemnification. Licensee agrees to indemnify XINDEXER, and its affiliates, officers, employees, agents, co-branders, and other partners and hold them each harmless from any and all claims, demands, damages, costs (including attorney's fees), made by any third party due to or arising from Licensee's misuse, abuse, unauthorized use, or improper use of the Software or a Generated Site, or arising from Licensee's violation of the terms of this Agreement or any rights of a third party. XINDEXER agrees to indemnify Licensee, and its affiliates, officers, employees, agents, co-branders, and other partners and hold them each harmless from any and all claims, demands, damages, costs (including attorney's fees), made by any third party due to or arising from XINDEXER's violation of the terms of this Agreement or any rights of a third party or arising from XINDEXER's gross negligence or willful misconduct. If the Software or the Generated Site becomes, or in XINDEXER's opinion is likely to become, the subject of a claim of infringement, XINDEXER will, at its sole option and expense: (i) procure for the Licensee the right to continue use of the Software and/or the Generated Site, as the case may be, and the right to continued enjoyment of the licenses granted under this Agreement; (ii) replace the Software and/or the Generated Site, as the case may be, with non-infringing software and/or sites which will then be subject to the terms and conditions of this Agreement; (iii) modify the Software and/or the Generated Site, as the case may be, to make them non-infringing; or (iv) terminate this Agreement. The indemnification obligations set forth herein shall survive the expiration or earlier termination of this Agreement.
- Limitation OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL XINDEXER BE LIABLE TO LICENSEE, ACCOUNT HOLDER, END USERS ON ACCOUNT OF USE OR MISUSE OF THE SITE OR RELIANCE ON THE SITE. XINDEXER DOES NOT GUARANTEE THAT ANY INDIVIDUAL USER WILL USE the Software OR THE Generated Site PROPERLY OR IN COMPLIANCE WITH THE TERMS AND CONDITIONS APPLICABLE TO THEM. LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH XINDEXER IS THE CANCELLATION OF YOUR ACCOUNT OR THE TERMINATION OF LICENSEE'S USE OF THE SERVICE. NEITHER PARTY HERETO SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE AND EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). THE LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM THE USE OR MISUSE OF THE SITE OR RELIANCE ON THE SITE, FROM INABILITY TO USE THE SITE OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SITE OR SERVICES OFFERED ON THE SITE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SITE OR RECEIVED THROUGH ANY LINKS PROVIDED ON THE SITE. SUCH LIMITATION SHALL APPLY, WITHOUT LIMITATION, TO THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST END USER DATA. SUCH LIMITATION SHALL APPLY WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SITE OR ANY PRODUCTS, SERVICES, INFORMATION, OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO, THE SITE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SUCH LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION 8 SHALL NOT APPLY IN THE CASE OF (a) the indemnification obligations of XINDEXER set forth in Section 7 above; (b) in the case of XINDEXER's breach of the confidentiality provisions set forth in Section 14 of these terms and conditions or (C) XINDEXER'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
- Litigation. If XINDEXER so desires, at its expense, it may commence or prosecute any claims or suits in its own name or join Licensee in the commencement or prosecution of any claims as a party thereto with Licensee's written consent, which consent shall not be unreasonably withheld. Licensee shall notify XINDEXER in writing of any infringements, possible infringements or any imitations by others of the Software or the Generated Site which may come to Licensee's attention. XINDEXER shall have the sole right to determine whether or not any further action shall be taken on account of any such infringements or imitations. Licensee shall not institute any suit or take any action on account of any such infringements or imitations without first obtaining the written consent of XINDEXER. Licensee shall not have any rights against XINDEXER by reason of XINDEXER's failure to prosecute any alleged infringements or imitations of the Software or the Generated Site by others.
- Notices. All notices and statements to be given and all payments to be made hereunder, shall be given or made at the respective address of the parties as set forth in Schedule F unless notification of a change of address is given in writing. Any notice shall be sent by registered or certified mail or by nationally recognized overnight courier, and shall be deemed to have been given at the sooner of the date received or three days after the date of delivery to the carrier.
- Independent Contractor. Licensee is an independent contractor and has and shall have no power, nor will Licensee represent that Licensee has any power, to bind XINDEXER or to assume or create any obligation or responsibility on behalf of XINDEXER.
- Dispute Resolution. This Agreement will be governed by and interpreted in accordance with the local laws of the State of Washington. The parties agree that service of any process, summons, notice, or document by U.S. registered mail to the addresses set forth herein shall be effective service of process for any action, suit or proceeding brought against either party in any such court. The parties hereby irrevocably waive all rights to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or otherwise relating to this Agreement or the actions of such parties in the administration, performance and enforcement thereof.
- Headings. This Section and other headings in this Agreement are for reference purposes only and will not affect the meaning or interpretation of this Agreement.
- Non-Disclosure. Each party agrees that the terms and conditions of this Agreement, any information concerning either party's marketing plans, existing or future products, any End User data (including non-public consumer information relating to End Users under data privacy laws and regulations applicable to the Agreement and these Terms and Conditions, including, but not limited to, the Gramm-Leach Bliley Act) and any other confidential, business, or technical information disclosed in connection with or in furtherance of this Agreement (collectively, "Confidential Information") shall be held in strict confidence and shall not be disseminated or disclosed without express written consent of the other party, except as otherwise provided in this Agreement. Neither party shall use any Confidential Information except as necessary to perform its obligations under the Agreement and these Terms and Conditions. The parties agree to maintain, and the confidentiality of the Confidential Information and to maintain at least the same procedures regarding the other party's Confidential Information that it maintains with respect to its own Confidential Information, but no less than reasonable care. If a party is directed to disclose any materials proprietary to the other party in conjunction with a judicial proceeding, arbitration, or otherwise by law, then the party so directed shall notify the other party both in writing and orally immediately and shall cooperate with the disclosing party (at the disclosing party's expense) to obtain an injunction or other means of protecting the confidential nature of the information. This provision will survive cancellation or termination of this Agreement.
- Intellectual Property Rights.
- Ownership of Software: Licensee recognizes and agrees that the Software is the valid and exclusive property of XINDEXER and that Licensee's right to use the Software arises only out of the license granted by this Agreement and is subject to the superior rights of XINDEXER. Licensee shall have no rights to the Software, the Generated Site or any variation, derivative work, or customization thereof. Licensee shall not take any action during the Term hereof or thereafter which may prejudice the validity of, or XINDEXER's title to the Software. Licensee shall not assert the invalidity or contest the ownership by XINDEXER of the Software either as a complete or partial defense to any claim made by XINDEXER, or as a basis of a claim against XINDEXER. Licensee acknowledges that its use of the Software and the Generated Site inures to the benefit of XINDEXER. Licensee agrees that it will, at any time both during the License and thereafter, execute such documents as XINDEXER may deem necessary or desirable for effecting the provisions of this Section 13(a)
- Licensee agrees to use the Software and the Generated Site only in the manner and form specified by XINDEXER. Licensee does not acquire hereby any property rights in or to the Software. Licensee agrees that it will not, during the Term or thereafter, directly or indirectly, contest the validity of the Software or this Agreement. XINDEXER warrants, and Licensee acknowledges, XINDEXER's ownership of or right to license the Software and Licensee will not do or permit to be done any act that would impair the rights of XINDEXER to the Software.
- No Reverse Engineering. Except as provided by this Agreement, Licensee shall not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, or create derivative works from any information, software, products or services obtained from the Software or a Generated Site. The Software and the Generated Site are made available solely for use by valid account holders according to this Agreement. Any reproduction or distribution of the Software and Generated Site not in accordance with this Agreement is expressly prohibited by law, and may result in severe civil and criminal penalties. Licensee may not modify, reverse engineer, disassemble or decompile software used in provision of the Software or the Generated Site. Licensee may not use the intellectual property contained in the Software or the Generated Site to create or provide any other means through which others may use the Software or the Generated Site, as through server emulators. Licensee may not take any action that imposes an unreasonable or disproportionately large load on XINDEXER's infrastructure. XINDEXER may update or otherwise enhance the Software or the Generated Site at any time.
- Protection of XINDEXER Intellectual Property. Licensee will promptly notify XINDEXER of any probable infringements or suspected violations of any of XINDEXER's rights in the Software or the Generated Site of which it becomes aware, and Licensee will cooperate with XINDEXER in the prosecution of any legal action for infringement. If XINDEXER prosecutes a legal action for infringement, XINDEXER will bear all costs and will reimburse Licensee (or, upon request, pay in advance) for any reasonable out-of-pocket expenses over and above Licensee's normal operating costs incurred by Licensee in cooperating with XINDEXER, provided Licensee supplies receipts for all expenses twenty-five dollars ($25.00) or greater. XINDEXER has sole right, power, and authority to pursue any infringement or violation that it deems necessary or appropriate, and XINDEXER is under no obligation to handle the infringement or violation to the satisfaction of the Licensee. Only upon XINDEXER's specific written permission, and pursuant to any guidelines, limitations, or directions set forth therein, may Licensee prosecute such infringement or violation at Licensee's sole cost and expense provided that XINDEXER shall at all times have the right to join in such action and any recoveries or awards associated therewith in proportion to the harm sustained.
- Protection of Licensee Intellectual Property. XINDEXER shall promptly notify Licensee in writing of any known or suspected infringements of Licensee's intellectual property rights in the Licensee Data that come to XINDEXER's attention. If Licensee prosecutes a legal action for infringement of the Licensee Data, Licensee will bear all costs and will reimburse XINDEXER (or, upon request, pay in advance) for any reasonable out-of-pocket expenses over and above XINDEXER's normal operating costs incurred by XINDEXER in cooperating with Licensee, provided XINDEXER supplies receipts for all expenses twenty-five dollars ($25.00) or greater. Licensee has sole right, power, and authority to pursue any infringement or violation of the Licensee Data that it deems necessary or appropriate, and Licensee is under no obligation to handle the infringement or violation to the satisfaction of the XINDEXER. Only upon Licensee's specific written permission, and pursuant to any guidelines, limitations, or directions set forth therein, may XINDEXER prosecute such infringement or violation at XINDEXER's sole cost and expense provided that Licensee shall at all times have the right to join in such action and any recoveries or awards associated therewith in proportion to the harm sustained.
- Confusing Marks. Licensee shall not use or adopt, during the term of the License or at any time thereafter, except as expressly permitted by this Agreement, in its business, in its business name, in its trading style, in its trade dress, in any of its services, or on any of its products, any trademark, service mark, name, style or dress which is so similar to, or so nearly resembles any of the trademarks, service marks, trade names, trade dress, or labels of XINDEXER as to be likely to cause or as to be calculated to cause deception or confusion, or which is graphically or phonetically similar to or is derived from or based upon any of the trademarks, or trade dress or labels of XINDEXER. If Licensee does at any time adopt or use any trademark, service mark, name, trade dress or style that XINDEXER reasonably regards as being in breach of this Section, then Licensee shall immediately, when requested by XINDEXER, discontinue such use, recall all product directly associated with such use, and discontinue production of all such product in addition to any other legal or equitable remedy to which XINDEXER may be entitled.
- No Waiver. No waiver, by either party, whether express or implied, of any provision or promise under this Agreement, or of a remedy as to any breach or default of the other party, shall constitute a waiver of any other provision of this Agreement, and no such waiver by either party shall prevent such party from enforcing any provision of this Agreement or from seeking a remedy as to any subsequent breach or default.
- Illegal Acts. In no event shall this Agreement be construed as requiring either party to commit any unlawful act or acts whatsoever.
- Time of Performance. Time is of the essence for every provision of this Agreement.
- Reformation. Each section or subsection of this Agreement shall be distinct and separate and, unless otherwise specified, the invalidity or illegality of any section or subsection shall have no effect on any other section or subsection. If a tribunal declares a provision of this Agreement invalid, the Agreement will be deemed automatically adjusted to the minimum extent necessary to be valid. Sections 2(d), 4(c), 4(d), 5, 7, 12, 14, 15 and any provision of this Agreement that expressly states that it shall survive termination will survive termination of this Agreement.
- Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties hereto and terminates and supersedes any prior agreement or understanding relating to the subject matter hereof between XINDEXER and Licensee. None of the provisions of this Agreement can be waived or modified except in writing signed by both parties, and there are no representations, promises, agreements, warranties, covenants or undertakings other than those contained herein. Neither the tender of this Agreement by XINDEXER to Licensee nor the encashment by XINDEXER of Licensee's advance payment shall be binding. Only upon delivery to Licensee of a fully-executed agreement shall this Agreement be binding. XINDEXER may transfer or assign this license without XINDEXER consent. This Agreement and any rights herein granted are personal to Licensee and shall not be assigned, sublicensed or encumbered by Licensee without XINDEXER's written consent.