Exhibit 10.9
STRIKEIRON INC.
WEB SERVICES MARKETPLACE
USAGE AGREEMENT
THIS USAGE AGREEMENT (the "Agreement") is entered into as of the 26th day of
March, 2008 (the "Effective Date") by and between STRIKEIRON, INC., a Delaware
corporation with principal offices at 15501 Weston Parkway Suite 150, Cary,
North Carolina 27513 ("StrikeIron") and Merchant Processing International, Inc.,
a California corporation with principal offices at 18500 Von Karman Suite 530,
Irvine, California, 92612 ("You").
WHEREAS, StrikeIron makes certain digital functionality and content (the
"StrikeIron Web Services") available to customers through its websites
(collectively, the "StrikeIron Marketplace"); and
WHEREAS, User wishes to access one or more of the StrikeIron Web Services;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein, the parties agree as follows:
1. DEFINITIONS. As used in this Agreement:
1.1 "STRIKEIRON WEB SERVICES MARKETPLACE" means the data exchange services
(Including the software necessary to operate the data exchange services)
provided by StrikeIron that permit You to route and exchange Web Service Data.
1.2 "STRIKEIRON WEB SITE" means the online information or service interface to
the StrikeIron Web Services Marketplace that is accessible via a Web browser, at
http://www.strikeiron.com.
1.3 "STRIKEIRON MARKETPLACE" means the service provided by StrikeIron that makes
the StrikeIron Web Services accessible over the StrikeIron Web Services Business
Network.
1.4 "STRIKEIRON WEB SERVICE" means a Registered Provider Web Service which may
be accessed by StrikeIron customers through the StrikeIron Marketplace upon
registration and subscription for such StrikeIron Web Service over the
StrikeIron Web Services Marketplace.
1.5 "REGISTERED PROVIDER" means a third party provider of the Web Service Data
that has specifically authorized StrikeIron to access, use and make limited
distribution of applicable Web Service Data included in such third party Web
Service over the StrikeIron Web Services Marketplace.
1.6 "WEB SERVICE DATA" means all data and information that is delivered through
or derived from a Web Service.
1.7 "WEB SERVICE(S)" means a function provided by one software system or
application and available for access by another software system or application
over the internet or a network.
2. AUTHORIZATION AND LICENSES
2.1 AUTHORIZATION TO USE THE STRIKEIRON MARKETPLACE WEB SERVICES. Subject to the
terms and conditions of this Agreement, StrikeIron hereby grants to You a
worldwide, non-exclusive, non-transferable, non-sub licensable, revocable (in
accordance with Section 9) license to use the StrikeIron Web Service Marketplace
and StrikeIron Marketplace to access, download use and integrate into any
application, system, wireless device or Web site the StrikeIron Web Services
from the Registered Provider for which you have paid the applicable subscription
fee. You acknowledge that the Web Service Data and the Web Service may change
from time to time for upgrade purposes without notice. From time to time, You
may modify or change the StrikeIron Web Service included in Your service. Any
such changes and/or modifications shall be governed by the terms and conditions
of this Agreement. You acknowledge and agree that StrikeIron Marketplace Web
Services and all Web Service Data are provided "as is" and that no
representation or warranty of accuracy is stated or implied and that the Web
Service Data and the Web Services may change from time to time without notice.
2.2 LIMITATIONS. You acknowledge that any use of the StrikeIron Marketplace,
StrikeIron Web Services or the StrikeIron Web Services Marketplace, other than
as explicitly permitted by this Agreement is prohibited. You will not: (a)
reverse engineer, decompile, disassemble, or otherwise attempt to derive the
source code from the StrikeIron Web Services; (b) remove, alter, or obscure any
proprietary notices (including restricted rights, trademark and copyright
notices) of StrikeIron or its Registered Providers on the StrikeIron Web
Services Marketplace; (c) otherwise use or copy the StrikeIron Marketplace,
StrikeIron Web Services or the StrikeIron Web Services Marketplace or any part
thereof, except as expressly allowed under Section 2.1; (d) modify or alter, or
create derivative works based on, the StrikeIron Web Services Platform or
StrikeIron Marketplace; (e) resell, rent or lease any of the Web Service Data;
(f) reproduce the StrikeIron Web Services Platform or StrikeIron Marketplace for
sublicensing, resale, rent, lease or distribution, including without limitation,
operation on a time sharing or service bureau basis, or distribute any of the
foregoing as part of an ASP, VAR, OEM, distributor or reseller arrangement; (g)
store or maintain Web Service Data on any kind of storage device or utilizing
any kind of storage mechanism, except solely for Your internal business
purposes; (h) redistribute Web Service Data in any way; or (i) disclose the
results of any performance benchmarks to any third party without StrikeIron's
prior written consent. You are responsible for the compliance by Your personnel
and agents with the terms of this Agreement.
2.3 NO IMPLIED RIGHTS. There are no implied licenses under this Agreement, and
You acknowledge and agree that, subject to the license grants contained in this
Agreement,
StrikeIron and its licensors retain all rights not expressly granted to You.
Except as expressly provided in this Agreement, StrikeIron does not grant and
You do not obtain any rights to use, distribute, sell, or sublicense the
StrikeIron Marketplace, the StrikeIron Web Services, or the StrikeIron Web
Services Marketplace in any form.
3. OPERATION OF STRIKEIRON MARKETPLACE
3.1 ACCESS TO STRIKEIRON MARKETPLACE. You must: (a) provide all equipment,
including communications infrastructure, necessary to establish a connection to
the World Wide Web; and (b) provide for Your access to the World Wide Web and
pay any telephone service fees or network access fees associated with such
access.
3.2 RESPONSIBILITY FOR TRANSMITTED DATA. You acknowledge and agree that certain
of the Web Services Data belong to third parties and are subject to certain
third party restrictions. All such third party restrictions will be made
available to you at such time as you subscribe to the StrikeIron Web Services or
modify your level of StrikeIron Web Services. By entering into this Agreement
and by using the StrikeIron Web Services, you acknowledge that you have read and
agreed to comply with any such restrictions. StrikeIron shall have no
responsibility or obligations with respect to such third party content.
3.3 USAGE DATA. In order for StrikeIron to make the StrikeIron Web Services
available, StrikeIron may need to collect information about your use of the
StrikeIron Web Services ("Usage Data"). StrikeIron reserves the right to use all
such Usage Data as StrikeIron deems appropriate for StrikeIron's internal
business purposes. All Usage Data and other information collected by StrikeIron
on the StrikeIron Web Services or StrikeIron Web Site will be subject to a
privacy policy, which may be accessed at http://www.strikeiron.com as modified
from time to time. 3.4 SUPPORT. StrikeIron will have no obligation to provide
any support or related services in connection with this Agreement, except as and
to the extent expressly provided in Exhibit A. 3.5 FEES. You agree to pay
StrikeIron any applicable fees for Your use of the StrikeIron Web Services as
set forth in Exhibit A.
4. USAGE POLICIES AND RESTRICTIONS
4.1 ACCOUNT PASSWORDS. You will receive a password for each of your employees or
agents authorized to use or access the StrikeIron Web Services and the
StrikeIron Web Services Marketplace. You are solely responsible and bear all
attendant liability if You fail to maintain the confidentiality of these
passwords. Furthermore, You are solely liable for any and all activities that
occur on Your account. You agree to immediately notify StrikeIron of any
unauthorized use of Your account or any other breach of security known to You.
4.2 GENERAL POLICIES AND LIMITATIONS OF USE. StrikeIron may establish general
policies and restrictions concerning use of the StrikeIron Marketplace, the
StrikeIron Web Services Marketplace, and the StrikeIron Web Services and post
such rules on the StrikeIron Web Site. You will comply with the usage policies
and restrictions for the StrikeIron Marketplace, the StrikeIron Web Services
Marketplace, and the StrikeIron Web Services as StrikeIron may amend such
policies and restrictions from time to time. StrikeIron reserves the right to
change these general policies and restrictions at any time, by posting such
changes on the StrikeIron Web Site. If You become aware of any violations of the
requirements in this Section 4, You will use your best efforts to remedy and
report promptly to StrikeIron all such violations.
4.3 COMPLIANCE WITH LAWS AND POLICIES. You hereby agree to abide by and comply
with (a) all applicable local, state, national, and international laws and
regulations (Including applicable laws that pertain to the transmission of
technical data, privacy, the encryption of software, the export of technology,
the transmission of obscenity, or the permissible uses of intellectual
property); and (b) all then-current requirements, procedures, policies, and
regulations of networks connected to or using the StrikeIron Marketplace or
StrikeIron Web Services Platform.
4.4 PROHIBITED USES. You will not use the StrikeIron Marketplace, the StrikeIron
Web Services, or the StrikeIron Web Services Marketplace to take any action, or
assist others in taking any action, that (a) is unlawful, harassing, invasive of
another's privacy, abusive, threatening, harmful, obscene, defamatory, libelous,
or fraudulent; (b) violates the personal privacy rights of others, including the
collection and distribution of information about Internet users without their
permission; (c) victimizes, harasses, degrades, or intimidates any individual or
group of individuals; (d) infringes or misappropriates any patent, trademark,
trade secret, copyright, or other intellectual property rights of any party; (e)
constitutes unauthorized or unsolicited transmission of advertising, junk or
bulk email, or other form of unauthorized solicitation or spam; (f) constitutes
an attempt to impersonate any person or entity; (g) is intended to omit, delete,
forge, or misrepresent transmission information, including headers, return
mailing, and Internet protocol addresses; (h) is intended to withhold or cloak
the identity or contact information of You or any Registered Providers; (i)
interferes with or disrupts the use of the StrikeIron Marketplace, StrikeIron
Web Services or the StrikeIron Web Services Marketplace by others; (j) results
in the disclosure of confidential or insider information; or (k) involves the
use of any viruses or codes, files, or programs designed or intended to cause
damage, detrimentally interfere with, surreptitiously intercept or expropriate
any system, data, or personal information. You acknowledge that StrikeIron
neither endorses the content of any user's communications, nor assumes
responsibility for any threatening, libelous, obscene, harassing, or offensive
material contained therein, any infringement or misappropriation of third party
intellectual property rights arising there from, or any crime facilitated
thereby.
4.5 DENIAL OF ACCESS. StrikeIron reserves the right to deny access to the
StrikeIron Marketplace, the StrikeIron Web Services Marketplace, or the
StrikeIron Web Services to any account that violates the policies and
restrictions set forth in this Section 4.
5. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS
You acknowledge and agree that, subject to the license grants contained in this
Agreement, StrikeIron and its respective licensors and Registered Providers
retain all right, title and interest in their respective intangible,
intellectual, proprietary and industrial property rights and all intangible
embodiments and derivative works thereof, including any and all now known or
hereafter existing, in and to: (a) trademarks, trade names, service marks,
slogans, domain names, uniform resource locators or logos; (b) copyrights, moral
rights, and other rights in works of authorship; (c) patents and patent
applications, patentable ideas, inventions and innovations; (d) know-how and
trade secrets; and (e) registrations, applications, renewals, extensions,
continuations, divisions or reissues of the foregoing (collectively
"Intellectual Property Rights"). Except as explicitly set forth herein, neither
this Agreement nor any services provided hereunder will give You any right,
title or interest in the Intellectual Property Rights of StrikeIron or its
licensors or Registered Providers. Without limiting the generality of the
foregoing, You hereby agree that (a) StrikeIron and its suppliers and licensors
and Registered Providers retain ownership of all Intellectual Property Rights
relating to or embodied in the StrikeIron Web Services Marketplace, the
StrikeIron Marketplace, or the StrikeIron Web Services (b) You have no right,
title, or interest in or to any Intellectual Property Rights therein, and (c)
except for the limited licenses granted to You under this Agreement, nothing in
this Agreement will be deemed to grant, by implication, estoppels, or otherwise,
a license by StrikeIron to the StrikeIron Marketplace, the StrikeIron Web
Services Marketplace, or the StrikeIron Web Services under any Intellectual
Property Rights.
6. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
6.1 WARRANTIES. You represent and warrant that (i) You have the full right,
power, and authority to enter into this Agreement; and (ii) Your execution and
performance of this Agreement does not and will not breach or cause a conflict
with any other agreement to which You are bound.
6.2 DISCLAIMERS. STRIKEIRON DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES
REGARDING THE PERFORMANCE, ACCURACY OR COMPLETENESS OF THE STRIKEIRON
MARKETPLACE, THE STRIKEIRON WEB SERVICES PLATFORM, OR WEB SERVICE DATA, AND TO
THE FULLEST EXTENT PERMITTED BY LAW, STRIKEIRON SPECIFICALLY DISCLAIMS ALL
EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION AND
NON-INFRINGEMENT, WITH RESPECT THE STRIKEIRON MARKETPLACE, THE STRIKEIRON WEB
SERVICES PLATFORM THERETO. STRIKEIRON IS PROVIDING ALL OF THE FOREGOING ON AN
"AS-IS" BASIS. STRIKEIRON DOES NOT REPRESENT OR WARRANT THAT THE STRIKEIRON
MARKETPLACE, THE
STRIKEIRON WEB SERVICES PLATFORM OR WEB SERVICE DATA WILL MEET YOUR REQUIREMENTS
OR OPERATE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS OR THAT
DEFECTS IN THE STRIKEIRON MARKETPLACE, THE STRIKEIRON WEB SERVICES PLATFORM OR
WEB SERVICE DATA WILL BE CORRECTED. STRIKEIRON MAKES NO REPRESENTATION OR
WARRANTY CONCERNING RESULTS OBTAINED FROM YOUR USE OF THE STRIKEIRON MARKETPLACE
OR WEB SERVICE DATA. YOU ACKNOWLEDGE THAT ANY USE OF MATERIAL OR DATA DOWNLOADED
OR OTHERWISE OBTAINED THROUGH THE USE OF THE STRIKEIRON WEB SERVICES PLATFORM,
THE STRIKEIRON MARKETPLACE IS DONE AT YOUR OWN DISCRETION AND RISK, AND THAT YOU
WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF
APPLICATIONS OR DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR
DATA. STRIKEIRON MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR
OBTAINED THROUGH THE STRIKEIRON WEB SERVICES PLATFORM, ANY TRANSACTIONS ENTERED
USING THE STRIKEIRON MARKETPLACE, OR ANY THIRD-PARTY PRODUCTS, DATA OR SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM
STRIKEIRON OR THROUGH THE STRIKEIRON WEB SERVICES PLATFORM OR OTHERWISE CREATES
ANY WARRANTY NOT EXPRESSLY MADE HEREIN. Some jurisdictions do not allow the
exclusion of certain warranties, so some of the above exclusions may not apply
to You. To the extent that StrikeIron may not disclaim any warranty as a matter
of law, the scope and duration of such warranty will be the minimum permissible
under applicable law.
7. LIMITATIONS ON LIABILITY
7.1 DISCLAIMER OF LIABILITY. NEITHER STRIKEIRON NOR ITS REGISTERED PROVIDERS OR
LICENSORS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL,
PUNITIVE, EXEMPLARY OR RELIANCE DAMAGES IN ANY WAY ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT AND HOWEVER CAUSED AND UNDER ANY THEORY OF
LIABILITY (WHETHER ARISING FROM BREACH OF WARRANTY, BREACH OF CONTRACT,
NEGLIGENCE, STRICT LIABILITY IN TORT, OR ANY OTHER LEGAL THEORY), OR ANY DAMAGES
RESULTING FROM ANY INTERRUPTION OR DISRUPTION IN COMMUNICATIONS OR SERVICES,
UNAVAILABILITY OR INOPERABILITY OF SERVICES, TECHNICAL MALFUNCTION, LOST DATA,
OR LOST PROFITS, EVEN IF STRIKEIRON KNEW OR SHOULD HAVE KNOWN OF THE POSSIBLITY
OF OR COULD HAVE REASONABLY PREVENTED SUCH DAMAGES, AND NOTWITHSTANDING THE
FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT WILL THE
CUMULATIVE LIABILITY OF STRIKEIRON UNDER THIS
AGREEMENT, WHETHER ARISING FROM BREACH OF WARRANTY, BREACH OF CONTRACT,
NEGLIGENCE, STRICT LIABILITY IN TORT, OR ANY OTHER LEGAL THEORY, EXCEED $100
(ONE HUNDRED DOLLARS). IN NO EVENT WILL STRIKEIRON'S REGISTERED PROVIDERS HAVE
ANY LIABILITY ARISING OR RESULTING FROM THIS AGREEMENT. NOTWITHSTANDING THE
FOREGOING, STRIKEIRON WILL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY YOUR
COMBINATION OF THE STRIKEIRON MARKETPLACE OR STRIKEIRON WEB SERVICES PLATFORM
WITH SOFTWARE NOT SUPPLIED BY STRIKEIRON OR ANY ALTERATION OR MODIFICATION OF
ANY OF THE FOREGOING. STRIKEIRON DISCLAIMS ANY AND ALL LIABILITY THAT MAY ARISE
FROM YOUR USE OF ANY SERVICES PROVIDED UNDER THIS AGREEMENT.
7.2 NO FAILURE OF ESSENTIAL PURPOSE. You acknowledge that StrikeIron has entered
into this Agreement in reliance upon the limitations of liability and the
disclaimers of warranties set forth in this Agreement and which form an
essential basis of the bargain between the parties. You agree that these
limitations and disclaimers will survive and apply even if found to have failed
of their essential purpose.
8. INDEMNIFICATION
8.1 You will defend, indemnify, and hold harmless StrikeIron and its suppliers,
and their respective officers, directors, employees, agents, contractors,
affiliates, shareholders and permitted successors and assigns, from and against
any third party claims arising out of or resulting from any of Your acts or
omissions related to Your use of the StrikeIron Web Services Marketplace,
including any claims related to (a) Your submission, posting, or transmission of
any content or other information; (b) any violation by You of Section 4; or (c)
the possession or use by StrikeIron or its suppliers of any data or information
that You have transmitted or provided in connection with its use of the
StrikeIron Web Services Marketplace.
9. TERM AND TERMINATION
9.1 TERM. The initial term of this Agreement will commence on the date both
parties sign and execute this Agreement and will remain in effect for period of
the payment term (please refer to Exhibit A) selected by You as a part of the
registration process, provided that you remain current in Your payments.
Thereafter, the term of this Agreement will automatically renew for additional
periods in accordance with the payment option selected by You, unless earlier
terminated under Section 9.2. Continued use of the StrikeIron Web Services
constitutes acceptance of this Agreement and any future versions.
9.2 TERMINATION. Either party may terminate this Agreement with or without
cause, upon thirty (30) days written notice. StrikeIron may terminate this
Agreement, without prior notice, in the event that You violate any of the
policies or restrictions set forth in Section
4. In addition, this Agreement and Your authorization to use the StrikeIron
Marketplace, the StrikeIron Web Services Platform and Web Service Data shall
automatically terminate ten (10) days after the due date of any payment due and
not paid by You.
9.3 EFFECTS OF TERMINATION.
(a) TERMINATION OF AUTHORIZATION. Upon the termination of this Agreement, (i)
the authorization and all license rights granted in this Agreement will
immediately cease; and (ii) You will promptly discontinue Your use of the
StrikeIron Marketplace, the StrikeIron Web Services Platform and Web Service
Data. Termination of this Agreement will not relieve either party of any
obligation accruing to such party prior to such termination or result in the
waiver of any right or remedy by a party hereto accruing to such party prior to
such termination.
(b) REFUND OF FEE. Upon termination of this Agreement any refund of fees shall
be treated in accordance with the refund policy described in the registration
form.
9.4 SURVIVAL. The provisions of Sections 1, 2.2, 2.3, 3.2, 3.3, 5, 6, 7, 8, 9.3,
9.4 and 10 will survive the expiration or termination of this Agreement.
10. MISCELLANEOUS
10.1 ASSIGNMENT. You may not assign this Agreement, nor assign any rights or
delegate any obligations under this Agreement by operation of law or otherwise.
StrikeIron may assign this Agreement without Your written consent. Any attempted
assignment inconsistent with this Section 10.1 shall be null and void. The
rights and obligations of the parties under this Agreement shall be binding upon
and inure to the benefit of the successors and permitted assigns of the parties.
10.2 FORCE MAJEURE. StrikeIron will not be liable for any failure or delay in
its performance under this Agreement, or for damages or losses due to causes
beyond its reasonable control, including acts of God, acts of civil or military
authority, fires, environmental conditions, riots, wars, sabotage, terrorism,
strikes or other labor problems, failure of third party suppliers or vendors,
failure of electronic or mechanical equipment or communications lines, telephone
or other interconnect problems, unauthorized access, theft, operator error,
telecommunications failure or governmental actions.
10.3 GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of North Carolina as applied to agreements
made, entered into and performed entirely within North Carolina by North
Carolina residents. All disputes arising out of this Agreement shall be subject
to the exclusive jurisdiction and venue of the state and federal courts located
in the State of North Carolina. The UN Convention on the International Sale of
Goods shall not apply to this Agreement.
10.4 INJUNCTIVE RELIEF. You acknowledge and agree that the breach by You of
Section 2 or 4 of this Agreement would cause immediate, irreparable harm to
StrikeIron for which recovery of money damages would be inadequate, and
therefore, StrikeIron will be entitled to seek timely injunctive relief to
protect its rights and restrain any actual or threatened breach thereof without
posting any bond or other undertaking, in addition to any and all other remedies
available at law or in equity.
10.5 NOTICES. Except for notices pertaining to Section 10.6 below, any notices
or communications under the Agreement shall be by electronic mail or in writing
and shall be deemed delivered upon receipt to the party to whom such
communication is directed. If to StrikeIron, such notices shall be addressed to
legal@strikeiron.com or to the address in Section 10.6 below, Attention: Legal
Department. If to You, such notices shall be addressed to the electronic or
mailing address specified during Your registration process, or such other
address as either party may give the other by notice as provided in this
Section. It is the Your responsibility to provide accurate information to ensure
that StrikeIron is notified of any changes to Your address as specified in this
Section.
10.6 NOTICE OF THIRD PARTY CLAIMS OF COPYRIGHT INFRINGEMENT. All notices of
claims of infringement shall be sent to StrikeIron's copyright agent and must be
delivered by personal delivery, by facsimile, by nationally recognized overnight
courier, or by certified or registered U.S. mail, return receipt requested, and
will be deemed effective upon: personal delivery, acknowledgement of receipt of
electronic transmission, one day after deposit with a nationally recognized
overnight courier, or five (5) days after deposit in the U.S. mail. StrikeIron's
copyright agent who is to receive notice under the Digital Millennium Copyright
Act for claims of copyright infringement for the StrikeIron Marketplace, the
StrikeIron Web Services Marketplace, and the StrikeIron Web Services is as
follows:
StrikeIron, Inc. Legal Department
2520 Meridian Parkway, Suite 150
Durham, NC 27713
By phone: +1 (919) 405-7010
By fax: +1 (919) 405-7025
By email: legal@strikeiron.com
StrikeIron may change the name and address of and other information for its
copyright agent at any time upon written notice to You as provided in Section
10.5. If You believe that a work of authorship has been infringed, you will
provide StrikeIron's copyright agent with the following information or items:
(a) an electronic or physical signature of the person authorized to act on
behalf of the owner of the copyright interest; (b) a description of the
copyrighted work that claimed to have been infringed; (c) a description of where
the material that is claimed to be is infringing is located; (d) Your address,
telephone number, and email address; (e) a statement that it has a good faith
belief that the disputed use is not authorized by the copyright owner, its
agent, or the law; and (f) a statement, made under penalty of perjury, that the
information in its notice is accurate and it is the copyright owner or
authorized to act on the copyright owner's behalf.
10.7 LIMITATION OF ACTIONS. No action, regardless of form, arising out of this
Agreement may be brought by You more than two (2) years after the cause of
action has arisen.
10.8 ATTORNEY'S FEES. If any legal action is brought to construe or enforce any
provision of this Agreement, the prevailing party will be entitled to receive
its reasonable attorney's fees and court costs, in addition to any other relief
that it may be entitled to receive.
10.9 PUBLICITY. You will not make any public statement, press release or other
announcement relating to this Agreement, or make any reference to StrikeIron,
without the prior approval of StrikeIron. StrikeIron may reasonably use Your
name and a description of Your use of the StrikeIron Web Services Platform or
StrikeIron Marketplace for its investor relations and marketing purposes. This
Section 10.9 will not in any way restrict either party from complying with any
law, regulation or other governmental demand or request for information.
10.10 EXPORT CONTROL. Regardless of any disclosure made to StrikeIron of an
ultimate destination or use of the StrikeIron Web Services Platform, StrikeIron
Marketplace or Web Service Data, You warrant that You will not export or
re-export, directly or indirectly, any such items without first obtaining any
and all necessary licenses and approvals from the U.S. Department of Commerce,
or any other agency or department of the U.S. Government, or any foreign
government, as required by applicable laws and regulations. By accessing the
StrikeIron Marketplace You are warranting that You are not located in, under the
control of, or a national or resident of any country specifically designated by
applicable export laws or regulations, and that You do not appear on any list of
prohibited persons or entities under such laws and regulations.
10.11 SEVERABILITY; WAIVER. If any provision of this Agreement is held to be
invalid or unenforceable, the remaining provisions will continue in full force
and effect without being impaired or invalidated in any way. The parties agree
to replace any invalid provision with a valid provision that most closely
approximates the intent and economic effect of the invalid provision. The
failure to enforce or waiver of any party of a breach of any provision of this
Agreement will not operate or be interpreted as a waiver of any other or
subsequent breach.
10.12 CONSTRUCTION. The headings of sections in this Agreement are for
convenience and are not to be used in interpreting this Agreement. As used in
this Agreement, the word "including" means "including but not limited to."
10.13 ENTIRE AGREEMENT. Except as provided in Section 1.1, this Agreement sets
forth the complete, exclusive and final statement of the agreement among the
parties with respect to the subject matter hereof. This Agreement supersedes and
replaces any and all prior agreements among the parties regarding such subject
matter.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed
by duly authorized officers or representatives as of the Effective Date.
STRIKEIRON, INC. CUSTOMER
By: ___________________________ By: ___________________________
Name: _________________________ Name: ___________________________
Title: ________________________ Title: ___________________________
Date: _________________________ Date: ___________________________
EXHIBIT A: PAYMENT TERMS AND PRICING
A.1 SUBSCRIPTION TYPE. You will purchase a Monthly subscription and will be
charged in accordance with the Terms below.
A.2 SUBSCRIPTION TERMS. All subscriptions include upgrades and basic
PersonNamesupport during the subscription period.
A.2.1 MONTHLY PURCHASE.
A.2.1.1 Prorated: At the time of purchase, your credit card will
be charged for a pro-rated amount for the current month's service,
plus one month in advance. Your hit count is also prorated and you are
granted the appropriate number of hits for the partial month, plus one
full month's hits. Thereafter, your anniversary date will be set to,
and your credit card will be charged on, the first day of every month
for the full month's rate.
A.2.1.2 Not prorated: At the time of purchase, your credit card
will be charged for one full month's service and your hit count is set
to the total number of hits purchased. Your anniversary date is set to
the first day of the very next month. Your credit card is charged
again, and your hit count is reset. On the first of every month,
thereafter, your credit card is charged, and hit count is reset.
A.3 GENERAL. Your subscription will be renewed automatically until you notify
StrikeIron of your intent to cancel. Your notification must be received on a
business day prior to the next anniversary date of your subscription renewal,
otherwise you will be charged for the next full month. To cancel a subscription,
please send an email to billing@strikeiron.com.
Monthly subscriptions will be validated electronically over the Internet.
Rate increases may occur on the anniversary date of your subscription.
Subscription Terms are subject to change without notice.
For any questions, please contact StrikeIron at +1.919.405.7010 ext. 100 or at
sales@strikeiron.com.
A.4 PRICING.
[Confidential]