End User License Agreement
Agreement. This End User License AGREEMENT (the “Agreement”) is made as of the effective date provided at the end of the Agreement (“Effective Date”), by and between Lead Revenue , LLC, and fusionZONE, LLC, each a Delaware limited liability company (together referred to in this contract as “Lead Revenue”), and the entity (or entities) utilizing the Services (the “Client”) as part of the Honda Digital Customer Experience Program (the “Program”). For avoidance of doubt, should there be any conflicts between agreements within the Program, the documents governing the Program shall control. Lead Revenue and Client may hereafter be referred to herein as a “Party” when referred to singly and/or also as the “Parties” when referred to in the plural. Deliverables will be publicly displayed and licensed by Lead Revenue.
Engagement. Lead Revenue will render the services as described in the “Lead Revenue, LLC Deliverable(s)” as enrolled by Client in the Program in its sole discretion (the “Services”). Lead Revenue may at any time replace the Services with deliverables possessing features of substantially similar value, in Lead Revenue’s sole discretion, including, without limitation, such updated website tools and widgets as Lead Revenue may adopt or develop. Lead Revenue is not in any way responsible for the installation, operation, or maintenance of any equipment or software not provided by Lead Revenue or the transmission or reception of any data or other information between Client and any third party.
Lead Revenue Ownership and License. Notwithstanding anything to the contrary in this Agreement, Lead Revenue owns all right, title and interest in and to all its property and assets and its confidential information, including Client websites created, revised, and/or maintained by Lead Revenue, live chat, or other software or tools provided therein, licensed programs and documentation therefor, and all derivatives, modifications and improvements thereof, including anything created or developed by Lead Revenue for Client (“Lead Revenue Work Product”) and all patents, copyrights, trade secrets and other intellectual property rights (“Intellectual Property Rights”) therein, anywhere in the world (collectively “Lead Revenue Property”). Lead Revenue grants Client a revocable, nonexclusive, worldwide license to use and sublicense the use of the Lead Revenue Property, only for the purpose of developing and marketing Client sales, lease, finance, service, and related products and services (“Client Business”) but such license has not been granted for, nor shall Client use the Lead Revenue Property for, the purpose of marketing, or using in any fashion, the Lead Revenue Property separate from Client Business, including, without limitation, any attempt to sell lead generation, website, or related services to any third-party (including, without limitation, to any other Clients). The definition of “Client” for purposes of this Section 7 shall include, without limitation, Client, its affiliates (past, current and future) and any of their respective principals, shareholders, members, managers, directors, officers, employees, other personnel, contractors, subcontractors, consultants, advisors, agents, representatives and the like. The Parties agree that money damages would not be a sufficient remedy for any breach of this Section 3 by Client and that in addition to all other remedies it may be entitled to, Lead Revenue shall be entitled to specific performance of the terms of this Section 3, in addition to any other remedy to which it is entitled at law or in equity. There will be no expiration to Client obligations under this Section 3 of this Agreement, unless required by law. Lead Revenue Property shall not exclude information or data simply because Client has received that same information from a third party without restriction.
LEAD REVENUE WARRANTIES. CLIENT ACKNOWLEDGES AND AGREES THAT THE LEAD REVENUE SERVICES ARE PROVIDED TO CLIENT ON AN “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE” BASIS AND WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, ALL OF WHICH LEAD REVENUE EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL WARRANTIES, GUARANTEES, AND REPRESENTATIONS REGARDING THE PERFORMANCE, QUALITY, RESULTS, PROMOTIONAL VALUE, OR ACCURACY OF THE SERVICES. LEAD REVENUE SHALL HAVE NO LIABILITY FOR ANY NON-PERFORMANCE DUE TO ANY CAUSE BEYOND ITS REASONABLE CONTROL.
Use of FastRing or Call Tracking Numbers. If Client enables call recording with FastRing Services or any call tracking phone numbers through Lead Revenue, Client agrees to review and comply with all applicable state and federal laws with regard to such services and to verbally disclose call recording to customers when using FastRing Services (in addition to Client agreements to comply with all applicable laws and to indemnify Lead Revenue for Client violation of such laws). Client agrees to hold harmless Lead Revenue, FastRing.com, their affiliates, employees, officers and directors in any cases where the Client has not followed protocol with applicable state or Federal laws.
Client Indemnity Requirements. Notwithstanding any provision to the contrary, Client agrees to fully defend, indemnify, and hold Lead Revenue, its affiliates and its principals, members, managers, officers, directors, employees, shareholders, customers, agents, successors, assigns and the like harmless from and against any and all losses, damages, fines, penalties, remedies, costs, claims, causes of action, expenses, settlements, and liabilities (including attorneys’ and other professionals’ fees, costs and expenses, and the expenses associated with any remedial or notice efforts required by law or consent decree) arising directly or indirectly from or relating to (1) any negligent or wrongful acts or omissions of Client; (2) the unauthorized access, use or disclosure of Lead Revenue Property; (3) from or relating to any breach or alleged breach by Client of the Agreement (including, without limitation, the representations and warranties set forth herein); (4) any third-party claim or suit arising out of or in connection with Client use of the Services, including, without limitation, any third-party suit alleging that the content or operation of Client website violated any applicable law and/or gave rise to any civil claim of any third party (including without limitation, violation of privacy, defamation, infringement of copyright or trademark, and/or any other tort, contract, or other legal or equitable claim ; (5) Client failure to comply with any applicable law, as provided in Section 9 of this Agreement and regardless of whether or not Client utilized the Services or Lead Revenue in violating such law(s); (6) any claim arising from, or related to, the advertising, offering, sale, or license of goods or services on Client website. Client indemnity obligations under this Agreement are not limited in amount.
Limitation of Liability. For all claims arising from, related to, or in any way connected with this Agreement, Lead Revenue’s maximum aggregate liability, and Client exclusive aggregate remedy, is the total fees payable to Lead Revenue during the Initial Term, except to the extent prohibited by applicable law. Further, Lead Revenue shall not be liable for any indirect, incidental, consequential, special, or exemplary damages (including loss of profits or revenue, or interruption of business) arising from, related to, or in connection with the Services or this Agreement.
Independent Contractor Relationship. Lead Revenue’s relationship with Client is that of an independent contractor, and nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture, or employment relationship. Neither Client nor any of its employees or other personnel will be entitled to any of the benefits which Lead Revenue or its affiliates may make available to its employees, including, but not limited to, group health or life insurance, stock options, profit sharing or retirement benefits. Client is not authorized to make any representation, contract or commitment on behalf of Lead Revenue. Client is solely responsible for all taxes, withholdings, and other statutory obligations with respect to the performance of Services and receipt of fees under this Agreement, and Client will defend, indemnify, and hold Lead Revenue, its affiliates and their respective principals, members, managers, officers, directors, employees, shareholders, customers, agents, successors, assigns and the like harmless from any and all claims made by any person, party or entity on account of any failure or alleged failure by Client to satisfy any such tax or other withholding obligations. No part of Lead Revenue’s compensation will be subject to withholding by Client for the payment of any social security, federal, state or any other employee payroll taxes. This indemnity shall survive the termination of this Agreement.
Mediation and Arbitration. In the event of a dispute between the Parties arising out of, relating to, or connected with, this Agreement, the Parties agree to hold a non-binding Mediation with a mediator to be selected upon mutual agreement of the Parties, and with the costs of the Mediation to be borne equally by each Party, except that each Party shall bear its own respective legal expenses. In the event Mediation fails, the Parties agree to binding Arbitration as follows: The Parties agree that all disputes, controversies or claims that may arise among them (including their agents and employees), including without limitation any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, whether sounding in tort, contract, equity or otherwise, shall be submitted to, and determined by, binding Arbitration. Such Arbitration shall be conducted before a single Arbitrator pursuant to applicable arbitration rules then in effect of the American Arbitration Association, except to the extent such rules are inconsistent with this section or the provision of Services by Lead Revenue. The venue for such Arbitration shall be Polk County, Florida (“Venue”). Unless the Parties mutually agree in writing to the contrary, pre-Arbitration discovery shall be limited to the following: (a) each Party shall be entitled to serve one set of interrogatories (requiring no more than 30 answers, including sub-parts) on the other Party, the response to which shall be given, under oath, within 30 days of service; (b) each Party shall be entitled to serve one set of Requests for Production of Documents on the other Party, the response to which shall be given within 30 days of service; and (c) each Party shall be entitled to take two depositions which shall last no more than four hours. All depositions shall be taken, and all properly requested documents shall be produced, in the Venue. Additional discovery may be permitted by the Arbitrator upon good cause shown and upon such terms as the Arbitrator may decide. The Arbitrator shall apply the laws of the State of Florida to the controversy or claim and shall decide the same in accordance with applicable usages and terms of trade. Evidentiary questions shall be governed by the Florida Evidence Code. The Arbitrator’s award shall be in writing and shall set forth the findings and conclusions upon which the Arbitrator based the award. The prevailing Party in any such Arbitration, if the Arbitrator determines there is a prevailing Party, shall be entitled to recover its reasonable attorneys’ and other professionals’ fees, costs and expenses incurred in connection with the Arbitration. Any award pursuant to such Arbitration shall be final and binding upon the Parties, and judgment on the award may be entered in any federal or state court sitting or located in Polk County, Florida. The Parties hereby consent to the exclusive jurisdiction of the federal or state courts sitting or located in Polk County, Florida. The obligations set forth in this Section shall survive the termination of this Agreement.
Governing Law. This Agreement shall be governed by the Laws of the State of Florida. “Laws” shall mean any and all applicable federal, state and local laws, rules and/or regulations, whether applicable to Client, Lead Revenue, or their affiliates with respect to the Services.
Severability. Should any provision(s) of this Agreement be held by a court of law to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.
Waiver. The waiver by Lead Revenue of a breach of any provision of this Agreement shall not operate or be construed as a waiver by Lead Revenue of any other or subsequent breach.
Entire Agreement / Effect of Service Agreement. Except as otherwise provided herein, this Agreement shall constitute the entire agreement between the Parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. The terms of this Agreement will govern all Services undertaken by Lead Revenue for Client. The Agreement may only be changed by mutual agreement of authorized representatives of the Parties and evidenced in writing signed by both Parties.