HomeMy WebLinkAboutSubscription Agreement - Shotcaller Global, Inc. - Gun OPS Software License RenewalIN
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1.2 "Confidential Information" means:
(i) With regard to COMPANY, all COMPANY Information, Software, inventions, know -bow,
ideas, programs, apparatus programs, and Intellectual Property Rights related to, connected with
or arising out of the Services;
(H) With regard to CUSTOMER, CUSTOMER Information, and any non-public information
regarding the business or business partners of CUSTOMER, in whole and in part; and
(iii) With regard to either Party, the terms, conditions, pricing and other contents of this
Agreement, any other information, technical data, or know-how, including, but not limited to, that
which relates to research, product plans, products, services, customers, markets, software, software
code, software documentation, developments, inventions, lists, trade secrets, data compilations,
processes, designs, drawings, engineering, hardware configuration information, marketing or
finances.
Notwithstanding the foregoing, Confidential Information does not include Submitted Data or information,
data or know-how which:
(i) Is in the public domain at the time of the disclosure or becomes available to the public
thereafter without restriction, and not as a result of the act or omission of the receiving Party;
(H) Is rightfully obtained by the receiving Party from a third party without restriction as to
disclosure;
(iii) Is lawfully in the possession of the receiving Party at the time of the disclosure;
(iv) Is approved for release by written authorization of the disclosing Party;
(v) Is developed independently and separately by the receiving Party without use of the
disclosing Party's Confidential Information; or
(vi) Is required to be disclosed by the receiving Party pursuant to law or legally enforceable
order of court or judicial body (in which event the receiving Party will comply with Section 6.2).
1.3 "Fees" means all fees payable by CUSTOMER to COMPANY pursuant to this Agreement.
1.4 "Force Majeure" means events or conditions beyond a Party's reasonable control, including,
without limitation, acts of common enemy, earthquakes, floods, fires, epidemics, terrorist attacks,
embargoes, strike, fire, governmental acts or orders or restrictions, acts of God, lack of internet availability,
inability to secure products or services from third parties, or any other reason where failure to perform is
not caused by the negligence of the nonperforming Party or such Party's Affiliate.
1.5 "Information" means any technical, or business information in written, graphical, oral, or other
tangible or intangible forms, including but not limited to specifications, drawings, tools, samples, reports,
compilations, records, data, computer programs, drawings, models, and secrets.
SUBSCRIPTION AGREEMENT FOR:
1.6 "Intellectual Property Rights" means any patent rights, copyrights, trade secrets, trade names,
service marks, trademarks, moral rights, know-how and any other similar rights or intangible assets
recognized under any applicable laws or international conventions or treaties, and in any country or
jurisdiction in the world, as intellectual creations to which rights of ownership accrue, and all registrations,
applications, disclosures, renewals, extensions, continuations or reissues of the foregoing now or hereafter
in force.
1.7 "Party" or "Parties" means, either individually or collectively, as the case may be, COMPANY and
CUSTOMER and any and all permitted successors and assigns.
1.8 "Services" means the hosted subscription services provided by COMPANY to CUSTOMER pursuant
to this Agreement and as described in Schedule A attached hereto, including any successor or replacement
services offering the same or more functionality than its predecessor provided by COMPANY to CUSTOMER
in COMPANY's discretion.
1.9 "Software" means the proprietary computer software programs utilized or provided by COMPANY
in the delivery of Services.
1.10 "Service Data" means all data and other Information CUSTOMER obtains from COMPANY from the
use of the Services.
1.11 "Submitted Data" means Information provided to or disclosed to COMPANY by CUSTOMER in
connection with CUSTOMER's use of the Services. In consideration for the rights granted to CUSTOMER
herein, CUSTOMER will upload to the System the Submitted Data identified in Schedule B attached hereto
1.12 "System" means COMPANY's Gunops system and Software, including the related features,
functionality and components thereof.
1.13 "User" means each single individual or entity specifically authorized by CUSTOMER to access and
use the Software in connection with the provision of the Services. The number of Users, and the names of
the initial Users, authorized under this Agreement is set forth on Schedule A.
2. LIMITED SUBSCRIPTION TO SERVICES / TRAINING / SUPPORT
2.1 Use and Restrictions.
(i) Use of Service. Subject to payment of the applicable Fees and CUSTOMER's compliance with
the terms of this Agreement, COMPANY hereby agrees to make the Services available to CUSTOMER
through a monthly, limited subscription. CUSTOMER and each User of the Services and Service Data
may use the Services and the Service Data solely for CUSTOMER's own internal business purposes.
(ii) Restrictions on Use of Service. CUSTOMER will not, and CUSTOMER will cause each User to
not, directly or indirectly:
a) make any copies of all or any portion of the COMPANY Confidential Information,
Software or the Services;
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b) except as otherwise provided herein, sell, sublicense, distribute, rent, lease or assign
this Agreement, the Services, the Software or the Service Data to any other individual or
entity. CUSTOMER shall be entitled to sublicense to third party vendors the right to access
the Services and Service Data solely for the purpose of providing services to CUSTOMER,
and for no other purpose, on the condition that such third party vendor is approved in
advance in writing by COMPANY and such vendor executes the sublicense agreement
attached hereto as Schedule C;
c) modify, reverse engineer, decompile, disassemble, translate, alter or create
derivative works based on the COMPANY Confidential Information, Services or the
Software;
d) except as otherwise provided herein, permit any individual or entity (other than
CUSTOMER) or other third party to use the Services;
e) create Internet "links" to or from the Services, or "frame" or "mirror" any content
forming part of the Services, other than on CUSTOMER`s own intranets or otherwise for its
own internal business purposes as provided herein;
f) send Spam or other duplicative or unsolicited messages in violation of applicable
laws;
g) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or
tortious material, including material harmful to children or violative of third party privacy
rights;
h) send or store material containing software viruses, worms, Trojan horses or other
harmful computer code, files, scripts, agents or programs;
i) interfere with or disrupt the integrity or performance of the Services, the Software
or the data contained therein;
0 attempt to gain unauthorized access to the Services, the Software, the Service Data,
or their related systems or networks;
k) access, or allow access to, the Services, the Software or the Service Data in order to
(1) build, or assist a third party in building, a competitive product or service to the Services
or the Software, (2) build, or assist a third party in building, a product or service using
similar ideas, features, functions or graphics of the Service or the Software, or (3) copy, or
assist a third party in copying, any ideas, features, functions or graphics of the Service,
Software or the Service Data;
1) CUSTOMER agrees that its purchase of the subscription described herein is not
contingent upon any future functionality or features not expressly stated in this Agreement;
Ili) CUSTOMER will not, and will cause each User to not, interfere or attempt to interfere
in any manner with the Services, Software and the Service Data. CUSTOMER will not, and
will cause each User to not, use the Services, Software or Service Data to advertise, sell or
exchange any products or services relating to illegal or illicit activities, including, without
limitation, sexual products or services, drug products or services, pornographic materials,
weapons or involving credit repair services;
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n) CUSTOMER will not, and will cause each User to not, use the Service Data, in whole
or in part, in the development of (1) any application that is outside the scope of this
Agreement or (2) any data products or services to be provided to third parties. CUSTOMER
acknowledges that COMPANY is obligated to comply with certain restrictions and
requirements placed upon the use of the Service Data by the relevant data suppliers or
licensors; and; CUSTOMER will, and cause each User to strictly comply with all restrictions
and requirements now or hereafter imposed upon COMPANY by any Service Data supplier
or licensor and made known to CUSTOMER in writing.
2.2 User IDS and Passwords. As part of the subscription, COMPANY will provide to CUSTOMER a user
1D and passcode or other secured means to access the Services, as applicable. CUSTOMER is responsible
for maintaining the confidentiality of its user ID and passcode and will be solely liable for all activities that
occur under CUSTOMER's user ID. CUSTOMER will immediately notify COMPANY of any unauthorized use
of CUSTOMER's user ID and request a change of any affected passcode. CUSTOMER agrees to access the
Services and Software in a secure manner in compliance with COMPANY's reasonable standards
established from time to time, which currently require, to the extent applicable, CUSTOMER's use of web
browsers utilizing 128 bit SSL encryption. CUSTOMER will have sole responsibility and will be liable to
COMPANY for, the accuracy, quality, integrity, legality, reliability and appropriateness of all data.
2.3 Access to System. CUSTOMER is responsible for obtaining and maintaining at its expense all
necessary hardware, software, modems, internet connections and other items necessary for CUSTOMER
and each User to access and use the System as provided herein.
2.4 Users. The number of Users CUSTOMER may grant access to the System is set forth in Schedule A.
Any third party User of CUSTOMER must agree to the terms of this Agreement in writing before CUSTOMER
establishes an account for any User and provides the User with access to the System. CUSTOMER agrees
that it is solely responsible for the selection of Users that CUSTOMER will allow to access, use and benefit
from the Services. CUSTOMER will use commercially reasonable efforts to prevent unauthorized access to
or use of the Services, Software and Service Data. CUSTOMER will immediately notify COMPANY of any
such unauthorized access or use of which it becomes aware. Notwithstanding such efforts and notice,
CUSTOMER is responsible and liable for the acts and omissions of all Users as well as those of CUSTOMER
in connection with this Agreement, the Services and Service Data, and for all activities of any individual or
entity that occur under any User ID and passcode issued to CUSTOMER. Any failure by a User to comply
with the terms and conditions applicable to CUSTOMER herein will constitute a breach hereof by
CUSTOMER, giving rise to such remedies as are herein provided to COMPANY. COMPANY reserves the right
to require a list of all original and any additional User names, addresses, telephone numbers and contact
personnel of CUSTOMER.
2.5 Compliance.
(i) CUSTOMER will certify in writing, upon reasonable request by COMPANY that all use of
Software, Service and Service Data is in compliance with the terms of this Agreement, indicating the
number of Users CUSTOMER has granted rights to access and use the System. CUSTOMER grants
COMPANY, or an agent selected by COMPANY, the right to perform a reasonable audit of
CUSTOMER's compliance with this Agreement during normal business hours. CUSTOMER agrees to
cooperate and provide.COMPANY with all records reasonably related to CUSTOMER's and each
User's compliance with this Agreement. If, as a result of the audit, a deficiency of greater than five
percent (5%) is found in the fees paid, then CUSTOMER will bear the total cost of the audit (in
addition to any other liabilities CUSTOMER may have).
SUBSCRIPTION AGREEMENT FOR:
2.6 Privacy Policy. If CUSTOMER or any User collects Information from third parties through online
methods, CUSTOMER will post and maintain a privacy policy that is (i) consistent with CUSTOMER's use of
the such methods (ii) complies with applicable law and (iii) sufficiently discloses how CUSTOMER collects
and shares such Information with others. CUSTOMER should consult an attorney if unsure how to disclose
such Information in a legal and appropriate manner.
2.7 Initial Training. COMPANY will provide one (3) days (not longer than the amount of consecutive
hours listed on Schedule A) of initial training Users at CUSTOMER's headquarters. CUSTOMER will be
responsible for the cost of any initial training for additional Users at COMPANY's prevailing rate plus any
travel and other related expenses.
2.8 Support. COMPANY provides the paid support services set forth on Schedule A ("Support
Services") Should CUSTOMER choose to subscribe to Support Services, COMPANY will provide telephone
or e-mail support relating to functional and technical issues from 9:00 a.m. to 5:00 p.m., Pacific Standard
Time, in accordance with Schedule A. After hours support identified as being urgent will be responded to
as soon as reasonably possible, but not later than the next business day. After hours support requests
responded to after hours will be billed at twice the normal rate.
2.9 Consulting Services. Consulting services are available upon request at COMPANY's prevailing rate.
Consulting services include service in excess of the initialtraining and Support Services provided to
CUSTOMER hereunder, on -site services customized services, and exporting Submitted Data after the Term.
CUSTOMER will be responsible for all travel and expenses for any Consulting Services.
3. SCOPE, AVAILABILITY AND MODIFICATIONS
3.1 Length of Use. The subscription granted herein does not allow for the storage of Service Data after
the Term. CUSTOMER therefore agrees that CUSTOMER will, after the expiration of the Term immediately
delete the Service Data received from COMPANY. COMPANY reserves the right to ask CUSTOMER to certify
in writing that CUSTOMER has complied with this requirement, and if COMPANY does so, CUSTOMER
agrees to immediately comply.
3.2 Availability of Services. Notwithstanding anything to the contrary stated herein, CUSTOMER
acknowledges and agrees that (i) the availability of the Services is subject to the availability of connection
services to and within the Internet and to other network functions within and around the Internet, (ii) that
the Internet, by its nature, is not fault -tolerant, and (iii) the availability of the Services is subject to events
of Force Majeure. Consequently, COMPANY will not have any liability for any breach of any representation,
warranty or covenant of this Agreement that arises out of or relates to the unavailability of such connection
services and other network functions. In addition, CUSTOMER understands and agrees that the availability
of the Services is subject to planned and emergency downtime to address maintenance, security and other
issues, and that COMPANY will not have any liability for any claim that arises out of or related to such
unavailability.
3.3 Modification of Services. CUSTOMER understands and agrees that COMPANY may unilaterally
modify the Services, their names, or the manner in which the Services are made available, and that those
modifications may create differences in how CUSTOMER accesses the Services. CUSTOMER further
understands and agrees that, upon reasonable advance written notice to CUSTOMER, COMPANY reserves
the right to replace any of the Services with other similar services offering the same or more functionality
SUBSCRIPTION AGREEMENT FOR:
than its predecessor.
4. PAYMENT
4.1 Payment Terms; Suspension of Subscription. During the term of this Agreement, CUSTOMER agrees
to compensate COMPANY for Services asset forth in Schedule A attached hereto. Unless otherwise noted
-in Schedule_A, COMPANY will send invoices to CUSTOMER and all amounts due COMPANY Net 10 days in
one annual installment. COMPANY reserves the right to suspend the subscription provided herein and
CUSTOMER's access to the Services, Software and Service Data, without liability to CUSTOMER, and without
notice to CUSTOMER, until such amounts are paid in full. The foregoing will not apply to amounts, if any,
that are the subject of a good faith dispute between CUSTOMER and COMPANY.
4.2 Taxes. CUSTOMER will calculate and pay all VAT, duties, tariffs or charges of any kind (including
withholding or value added taxes) imposed by any federal, state, or local governmental entity for the
Services provided under this Agreement, excluding only taxes based solely on COMPANY's net income.
CUSTOMER will hold COMPANY harmless from all claims and liability arising from CUSTOMER's failure to
support or pay any such taxes, duties, tariffs or charges.
5. PROPRIETARY RIGHTS
5.1 Title to Technology. All Intellectual Property Rights pertaining to COMPANY, the Software, the
Services and the Service Data, in whole or in part, will be, vest with and remain the exclusive property of
COMPANY and its third party suppliers and licensors.
5.2 Title to Submitted Data. In full or partial consideration for COMPANY providing the Services and
the Service Data to CUSTOMER, COMPANY may maintain in its database a copy of the Submitted Data.
CUSTOMER agrees that COMPANY will have the perpetual right to maintain, access, and use the Submitted
Data for its internal and commercial purposes, including for internal data indexing, data linkage, and data
inferencing (including making inferences about a data subject's demographic data), in order to improve
COMPANY's products and services. COMPANY may also use aggregated Submitted Data to create and
provide aggregated analysis (such as control sets) to COMPANY's customers.
5. CONFIDENTIALITY
6.1 Nondisclosure of Confidential Information. Each Party will retain the other Party's Confidential
Information in the strictest confidence and will not disclose such Confidential Information to any third
party. Each Party agrees: (i) to use the Confidential Information only for the purposes of this Agreement in
accordance with the terms of this Agreement; (ii) not to make copies of or store Confidential Information
or any part thereof except as expressly permitted by this Agreement; (iii) to reproduce and maintain on
any copies of any Confidential Information such proprietary legends or notices (whether of disclosing Party
or a third party) as are contained in or on the original or as the disclosing Party may otherwise reasonably
request in writing; and (iv) to treat this Agreement as Confidential Information of the other Party. The
receiving Party will notify the disclosing Party in writing of any known unauthorized use, possession or
disclosure of Confidential Information of the disclosing Party. The disclosing Party will have the sole right
(but will be under no obligation) to take legal or other action against any third party with respect to any
SUBSCRIPTION AGREEMENT FOR:
such unauthorized use, possession or disclosure of Confidential Information of the disclosing Party, and the
receiving Party will cooperate with Licensor in such effort.
6.2 Disclosures to Governmental Entities. If the receiving Party becomes legally obligated to disclose
Confidential Information by any governmental entity with jurisdiction over it pursuant to law or as a result
of court order, subpoena or similar legal action ("Process"), the receiving Party will give the disclosing
Party written notice as promptly as possible, with the intention that it be sufficient to allow the disclosing
Party to seek a protective order or other appropriate remedy. The receiving Party will cooperate with the
disclosing Party's efforts to quash, modify or challenge the required disclosure. In the event that such
disclosure is required, the receiving Party will disclose only such information as is legally required and only
to the extent necessary to comply with the Process. Nothing in this section will impair the right of either
Party to disclose information necessary, in the sole judgment of the Party or the Party's Affiliate, to comply
with securities laws or public trading reporting obligations under laws of the United States or any state in
the Union.
6.3 Remedies. The Parties agree that, notwithstanding any other section of this Agreement, the non -
breaching Party will be entitled to seek equitable relief to protect its interests, including but not limited to
preliminary and permanent injunctive relief, as well as money damages, without the requirement of posting
a bond. Nothing stated herein will be construed to limit any other remedies available to the Parties.
7. TERM AND TERMINATION
7.1 Term. This Agreement will become effective on the Effective Date and will continue in force through
the end of the Term (as provided in Schedule A).
7.2 Voluntary Termination., Either party may terminate this Agreement by providing the other party
with thirty (30) days advance written notice.
7.3 Immediate Termination or Suspension. COMPANY may immediately, in its discretion, suspend
CUSTOMER's access to the Services, Software and Service Data, and/or terminate this Agreement, in the
event COMPANY suspects or believes that CUSTOMER is violating applicable law, rules or regulations or is
otherwise accessing the Services, Software or Service Data in any manner that may expose COMPANY, or
an end user, to significant legal liability or loss.
7.4 Termination for Cause. COMPANY may, by written notice to CUSTOMER, terminate this Agreement
if any of the events applicable to CUSTOMER described under (i), (ii), (iii) or (iv) below occurs, and
CUSTOMER may, by written notice to COMPANY, terminate this Agreement if either ofthe events applicable
to COMPANY described under (iii) or (iv) below occurs (in each case, "Cause"). In the event COMPANY
terminates this Agreement for Cause, the CUSTOMER will forfeit any pre -paid Pees paid to COMPANY.
(i) CUSTOMER fails to pay any amount due to COMPANY within ten (10) days after COMPANY
gives CUSTOMER written notice of such non-payment;
(H) CUSTOMER or any User fails to comply with any law, rule or regulation applicable to the
provision of Services or the use of the Service Data;
(iii) The other Party is in breach of any material, non -monetary term, condition or provision of
this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days after
the non -breaching Party gives the breaching Party written notice of such breach; or
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(iv) The other Party (a) terminates or suspends its business activities, (b) becomes insolvent,
admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit
of creditors, or becomes subject to direct control of a trustee, receiver or similar authority, or
(c) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes
which is not rescinded within sixty (60) days.
7.5 Acceleration of Payments. In the event CUSTOMER is in default in making any payment to
COMPANY when due, COMPANY may suspend CUSTOMER's access to, and COMPANY's performance of, the
Services until CUSTOMER has cured such default and made the required payments, and arrangements have
been made reasonably satisfactory to COMPANY that ensure the payment of future invoices. At COMPANY's
sole option, at any time CUSTOMER is in default of any payment due under this Agreement, and regardless
of whether COMPANY terminates this Agreement for Cause, COMPANY will have the right to declare all
amounts payable hereunder, under Schedule A, and including, without Iimitation, all costs, expenses,
interest charges and fees, to be immediately due and payable without notice to CUSTOMER; and, COMPANY
will have all remedies available to it at law or in equity for collection of such amounts payable. COMPANY's
failure to exercise such option to accelerate will not constitute a waiver of such right to accelerate at any
subsequent time or waive any future right to accelerate. In addition, CUSTOMER agrees that if it is in default,
and regardless of whether COMPANY terminates this Agreement for Cause, damages will be difficult to
ascertain such that COMPANY will be entitled to: (i) all amounts due and owing under all uncompleted Services
hereunder, and; (ii) all amounts which would have become due hereunder had this Agreement continued
for the entire Initial Term or any Renewal Term, as applicable, including, without limitation, all costs,
expenses, interest charges and fees, to compensate COMPANY for lost opportunities, as liquidated damages, and
not as a penalty, in addition to all other rights and remedies available to COMPANY.
7.6 Return Of Materials. Upon termination of this Agreement consistent with the terms herein,
COMPANY may immediately discontinue CUSTOMER's access and use of the Services. CUSTOMER will
promptly discontinue use of any Services, and return any Software and Confidential Information that
CUSTOMER has received from COMPANY.. Notwithstanding the foregoing, CUSTOMER may request that
COMPANY a) erase and destroy or b) export and deliver to CUSTOMER the Submitted Data. COMPANY will
provide CUSTOMER with an estimate of the costs and amount of time required to export and deliver the
Submitted Data and, upon CUSTOMER's payment of the estimate, COMPANY will commence with such
project.
7.7 . Effect of Termination. Notwithstanding any termination of this Agreement, Section 6
("Confidentiality") will survive for a period of five (5) years, Section 10.3 ("Employee Solicitation") will
survive for a period of one (1) year, while Sections 5 ("Proprietary Rights"), 7.4 ("Acceleration of
Payments"), 8 ("Disclaimer; Limitation of Liability"), 9 ("Indemnification") and 10.5 ("Governing Law and
Enforcement of Agreement") will survive termination of this Agreement indefinitely. All other rights
granted hereunder will cease upon termination.
8. DISCLAIMER; LIMITATION OF LIABILITY
8.1 Disclaimer. TO THE MAXIMUM EXTENT ALLOWED BY LAW AND EXCEPT AS UNAMBIGUOUSLY
AND EXPRESSLY SET FORTH IN ANY SCHEDULE FORMING A PART OF THIS AGREEMENT, THE SERVICES
ARE PROVIDED "AS IS" AND COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES
CONNECTED WITH, RELATED TO OR ARISING OUT OF THIS AGREEMENT. COMPANY EXPRESSLY
DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ACCESS OR USE OF THE SERVICES, SOFTWARE
OR SERVICE DATE WILL BE ERROR -FREE, SECURE OR UNINTERRUPTED, OR THAT INFORMATION OR
SUBSCRIPTION AGREEMENT FOR:
CONTENT, INCLUDING BUT NOT LIMITED TO THE SERVICE DATA, WILL BE ACCURATE OR TIMELY.
8.2 Limitation of Liability. TO THE MAXIMUM EXTENT ALLOWED BY LAW, IN NO EVENT WILL
COMPANY BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA
OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGIES OR SERVICES, COST OF COVER OR
PUNITIVE OR EXEMPLARY, OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY
KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE
SERVICES PERFORMED HEREUNDER, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS
CONDUCT, INCLUDING NEGLIGENCE, EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. IN ADDITION, COMPANY WILL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY
IN DELIVERY OR FURNISHING THE SERVICES OR THE SERVICE DATA. COMPANY'S LIABILITY UNDER
THIS AGREEMENT OR THE TERMINATION OF THIS AGREEMENT WHETHER FOR DIRECT, INDIRECT,
SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES OF ANY KIND,
INCLUDING, WITHOUT LIMITATION, RESTITUTION, WILL NOT, IN ANY EVENT, EXCEED THE FEES
ACTUALLY PAID BY CUSTOMER TO COMPANY PURSUANT TO THIS AGREEMENT DURING THE TWELVE
(12) MONTHS PRIOR TO THE OCCURRENCE GIVING RISE TO SUCH LIABILITY.
9. INDEMNIFICATION
9.1 By COMPANY. COMPANY agrees to defend or, at its option, to settle, any claim brought against
CUSTOMER for infringement of any currently existing United States copyright, trade secret or trademark
by the Services as delivered, and to indemnify CUSTOMER against all damages and costs assessed against
CUSTOMER under any such claim or action. CUSTOMER agrees that COMPANY will be released from the
foregoing obligation unless CUSTOMER has taken all reasonable steps to mitigate any potential expenses
and provides COMPANY with: (i) prompt written notice of any such claim or action, or possibility thereof;
(ii) sole control and authority over the defense or settlement of such claim or action; and (iii) proper and
full information and assistance to settle and/or defend any such claim or action. CUSTOMER will have the
right to employ separate counsel and participate in the defense at CUSTOMER's own expense, provided that
COMPANY will remain in control of the defense. In addition, COMPANY may, at its sole option and expense,
either: (a) procure for CUSTOMERthe right to use the infringing Services; (b) replace the infringing Services
with non -infringing, functionally equivalent services; (c) modify the infringing Services so that they are not
infringing; or if (a), (b), and (c) are not commercially feasible, then (d) will cease to provide the infringing
Services, pay as liquidated damages an amount equal to any Fees covering any period of time during which
such infringing Services were to be provided and terminate this Agreement as it relates to such infringing
Services. Upon exercise of option (d) in the previous sentence, COMPANY will have no further obligations
or liability to CUSTOMER with respect to infringement. Except as specified above, COMPANY will not be
liable for any costs or expenses incurred without its prior written authorization. The foregoing obligations
do not apply with respect to Services, Software, Service Data or portions or components thereof (i) not
supplied by COMPANY, (ii) made in whole or in part in accordance with CUSTOMER specifications,
(iii) modified after delivery by COMPANY, (iv) combined with other products, processes or materials
where the alleged infringement relates to such combination, (v) where CUSTOMER continues allegedly
infringing activity after being notified thereof or after being informed of modifications that would have
avoided the alleged infringement, or (vi) where CUSTOMER's use of such Services, Software or Service Data
is not strictly in accordance with this Agreement. CUSTOMER will indemnify and hold harmless COMPANY
and its Affiliates from all damages, settlements, attorneys' fees and expenses related to any claim of
infringement or misappropriation excluded from COMPANY's indemnity obligation by the preceding
sentence.
9.2 By CUSTOMER. CUSTOMER will indemnify and hold harmless COMPANY and its Affiliates, and their
directors, shareholders, members, agents and employees from and against any fine, penalty, costs, losses,
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liabilities and expenses (including reasonable attorneys' fees) arising out of or relating to (a) the
CUSTOMER's use of the Services, Software and Service Data under this Agreement, (b) CUSTOMER's
negligence or willful/intentional misconduct, or (c) any action or inaction of CUSTOMER or a User, or those
under CUSTOMER's control, that causes COMPANY to breach or incur liabilities under the laws, rules or
regulations applicable to this engagement.
9.3 Exclusive Remedy. THE FOREGOING PROVISIONS OF THIS SECTION 9 STATE THE ENTIRE
LIABILITY AND OBLIGATIONS OF COMPANY AND ANY OF ITS SUPPLIERS AND LICENSORS, AND THE
EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF
ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT
BY THE SERVICES, SOFTWARE, SERVICE DATA, OR ANY PART THEREOF.
10.GENERAL
10.1 Notices. Any notice required or permitted under the terms of this Agreement or required by law
must be in writing and must be: (i) delivered in person; (h) sent by first class registered mail, or air mail,
as appropriate; or (iii) sent by nationally recognized overnight or two (2)-day air courier service, to the
following address as applicable.
Notice to CUSTOMER: South Bend Police
701 West Sainple Street
South Bend, IN 46601
Attention: Christopher
Notice to COMPANY: Shotcaller Global, Inc.
4025 E. La Palma Suite 204
Anaheim, CA 92807
Attention: Girard S. Brewer III
Either Party may change its address for notice by notice to the other Party given in accordance with this
Section. Notices will be considered to have been given at the time of actual delivery in person, three (3)
business days after deposit in the mail as set forth above, or one (1) day after delivery to a nationally
recognized overnight or two (2) days after delivery to a two (2) day air courier service.
10.2 Representations,.
(i) By Each Party. Each Party represents and warrants that: (i) such Party is duly organized,
validly existing and in good standing under the laws of its state of domicile; (ii) such Party has the
power and authority to execute, deliver and perform under this Agreement; and (iii) this Agreement
constitutes a valid and binding obligation of such Party enforceable in accordance with its terms.
(ii) By CUSTOMER. CUSTOMER represents and warrants that (a) it has the full power and
authority to enter into this Agreement; (b) CUSTOMER owns the rights to the Submitted Data or
otherwise has the rights to use and allow COMPANY to use and exercise all rights provided for in
this Agreement regarding the Submitted Data, including uploading the Submitted Data onto the
System and COMPANY subsequent right to use and allow others to use the Submitted Data; (c) the
Submitted Data does not and will not contain any content, materials, or other items or information
that infringe or violate any applicable law, regulation or right of a third party, including without
limitation export laws or any proprietary, intellectual property, contract, privacy or publicity right
or any other third party right; and (d) CUSTOMER and each User has implement and maintains an
information security program that contains administrative, technical, and physical safeguards that
SUBSCRIPTION AGREEMENT FOR:
are appropriate to its size and complexity, the nature and scope of its activities, and the sensitivity
of any customer information at issue.
10.3 Employee Solicitation. CUSTOMER acknowledges that COMPANY's business is dependent upon
being able to adequately staff projects with qualified persons and adequately utilize its employees and
independent contractors. CUSTOMER will not, directly or indirectly, for itself, or on behalf of any other
person, firm, corporation or other entity, whether as principal, agent, employee, stockholder, partner,
member, officer, director, sole proprietor, or otherwise, solicit, participate in or promote the solicitation of
COMPANY or COMPANY's Affiliates' employees or independent contractors to leave the employ or service
of COMPANY or COMPANY's Affiliates or hire an employee or independent contractor of COMPANY or
COMPANY's Affiliates, during the period such employee or independent contractor is working for
COMPANY and for one (1) year immediately following the period for which such employee or independent
contractor last performed services for COMPANY.
10.4 Assignment. Neither this Agreement nor any rights under this Agreement may be assigned or
otherwise transferred by CUSTOMER, in whole or in part, whether voluntarily or by operation of law, except
that CUSTOMER may assign this Agreement in connection with a sale of its assets, merger or consolidation
or other transaction commonly known as a business combination provided that CUSTOMER will remain
responsible for the performance of its obligations under this Agreement. Subject to the foregoing, this
Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors
and assigns. Notwithstanding anything to the contrary, COMPANY will have the right to (i) subcontract any
of its obligations hereunder to third parties, provided that COMPANY will remain primarily responsible for
the performance of any such obligations, and/or (ii) assign or otherwise transfer, in whole or in part,
whether voluntarily or by operation of law, this Agreement in connection with a sale of its assets, merger
or consolidation or other transaction commonly known as a business combination.
10.5 Governing Law and Enforcement of Agreement. This Agreement will be governed in accordance
with the laws of the State of Indiana, without reference to conflict of laws principles. The Parties consent
and submit exclusively to the jurisdiction and service of process of the courts of the State of California or
the courts of the United States located in St. JosephCounty, California. The United Nations Convention on
Contracts for the International Sale of Goods will not apply to this Agreement. To the extent permissible
by law, the Uniform Computer Information Transaction Act will not apply to this Agreement. In the event
either Party brings an action to enforce this Agreement (including any attachments or Schedules), the
prevailing Party will be entitled to recover from the losing Party all reasonable attorneys' fees and costs
associated with the enforcement proceeding, including fees and costs incurred in any appellate proceeding.
10.6 Independent Contractors. The relationship of COMPANY and CUSTOMER established by this
Agreement is that of independent contractors, and nothing contained in this Agreement will be construed
or implied to give either Party the power to direct or control the day-to-day activities of the other or
constitute the Parties as partners, joint venturers, co -owners or otherwise as participants in a joint or
common undertaking.
10.7 PubPub` licity. The Parties agree that any press release, public announcement, confirmation or other
information regarding this Agreement or the transactions contemplated hereby will be made only after
each Party has approved in writing the time, form and content of any such information to be disseminated
to third parties or the public. CUSTOMER acknowledges that COMPANY may desire to use CUSTOMER's
name in customer listings, on its web site, in a customer profile, and in future press releases, product
brochures and financial reports indicating that CUSTOMER is a customer of COMPANY; and, CUSTOMER
agrees that COMPANY may use its name in such a manner and in accordance with COMPANY's then current
marketing policies and programs. Nothing in this Section will impair the right of either Party to disclose
SUBSCRIPTION AGREEMENT FOR;
information necessary, in the sole judgment of the Party or the Party's Affiliate, to comply with securities
laws or public trading reporting obligations under laws of the United States or any state in the Union.
10.8 Miscellaneous. In the event that any provision of this Agreement conflicts with governing law or if
any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction:
(i) such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the
Parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants and
restrictions of this Agreement will remain in full force and effect. The failure of either Party to enforce at
any time any of the provisions of this Agreement will not be deemed to be a waiver of the right of either
Party thereafter to enforce any such provisions. No waiver, amendment or variation to this Agreement will
be valid unless in writing and signed by both Parties. Except for the obligation to make payments,
nonperformance of either Party will be excused to the extent that performance is rendered impossible by
Force Majeure, This Agreement may be executed in counterparts, each of which so executed will be deemed
to be an original and such counterparts together will constitute one and the same Agreement. Section and
Schedule headings are for ease of reference only and do not form part of this Agreement. This is an
integrated Agreement and all exhibits, schedules and attachments hereto and incorporated herein
constitute the entire, final, complete_ and exclusive agreement between the Parties and supersede all
previous agreements, intentions, or representations, oral or written, relating to this Agreement. This
Agreement may not be modified or amended except in a writing signed by a duly authorized representative
of each Party. Both Parties acknowledge having read the terms and conditions set forth in this Agreement
and all attachments hereto, understand all terms and conditions, and agree to be bound thereby. No
employee, agent, representative, or Affiliate of COMPANY has authority to bind COMPANY to any oral
representations or warranty concerning the Services, Software or Service Data. Anywritten representation
or warranty not expressly contained in this Agreement (including any Schedules) will not be enforceable.
10.9 No Third Party Beneficiaries. No parties, entities, or persons other than the Parties hereto may
rely on or derive any rights pursuant to or under this Agreement.
SUBSCRIPTION AGREEMENT FOR:
SCHEDULE A
SPECIFIC INFORMATION
Subscription Services
• GunOpsTM SaaS License, works with Mac, or Windows and is compatible with Safari, Firefox, IE
and Chrome browsers http_//www.gunopsmobile.comf #main
Initial Training
1 (hour) allowed remotely per User; Hours: 8:OOAM - 5:00PM Eastern Standard Time
Support Services
Send all Support requests to support@shotcallerinc.com or log into
https: /./support.shotcallerinc.com/12ortaI /home
Fees U.S. Dollars
(i) A Subscription Fee of $20,366 less $5,366 Pioneering Discount for a net Subscription Fee of $15,000
billed annually for the use of the GunOpsTM SaaS Application product; and includes 1 GB of storage, 3 Admin
Users and 25 Read/Only Users. Additional Users and Storage can be purchased pursuant to the following;
• +1 Admin = $1200 each, + Read/Write Only each = $600, + Read/Only each = $1000 for blocks of
100 billed annually
• +1 GB = $180, +3 GB = $240, +5 GB = $360, +10 GB = $600, billed annually
(ii) If Training, Consulting or Professional Services are required by CUSTOMER on location, a Fee of
$1500/day will be charged. Travel times, travel costs and accommodation costs shall be charged for on a
time basis at costs, and according to the location of the COMPANY staff member's workplace. Travel times
and costs accrue during travel between the staff member's workplace and the CUSTOMER.
Term
• Initial Term: Shall be Twelve (12) months from the Effective Date.
• Renewal Term: This Agreement shall renew automatically for like periods unless otherwise
terminated in writing within thirty (30) days of expiration.
COMPANY Contacts
Rocky Edwards
rocky(&shotcallerinc.com
0: 844-9-GUNOPS
C: 323-216-1584
Gary Brewer
gary(@shotcallerinc.com
0: 844-9-GUNOPS
C: 949-294-7501
SUBSCRIPTION AGREEMENT FOR:
SCHEDULE B
CUSTOMER COMMITTED SUBMITTED DATA
SUBSCRIPTION AGREEMENT FOR:
SCHEDULE C
SUBLICENSE AGREEMENT
This Sublicense Agreement is made effective as of this day of (the "Effective Date)"
having a place of business ("CUSTOMER)" and Shotcaller
Global Inc. having a place of business at 4025 E. La Palma Suite 204 Anaheim California 92807
("COMPANY").
BACKGROUND
A. COMPANY and CUSTOMER entered into a subscription agreement (the "Subscription
Agreement") entitling CUSTOMER to limited access and use of a hosted subscription service provided by
COMPANY (the "Services ") which included, among other things, the ability to query the COMPANY Service
database and, in response to such queries, obtain data from the Services (the "Services Data").
B. In the Subscription Agreement, COMPANY and CUSTOMER agreed to the conditions under
which CUSTOMER could sublicense the right to access to the Services and Service Data solely for the
purpose of providing services to CUSTOMER under the Subscription Agreement, and for no other purpose.
The Parties therefore agree as follows:
AGREEMENT
1. LICENSE
1.1. LICENSE. The undersigned wishes to access to the Services and Service Data solely for the
purpose of providing services to CUSTOMER, and agrees to be bound by the terms and conditions of the
attached Subscription Agreement between COMPANY and CUSTOMER, pursuant to the provisions relating
thereto, and to abide by all the terms and conditions of the Subscription Agreement.
1.2. TERMS. All terms used herein will have the meaning ascribed in the Subscription Agreement.
2. INDEMNIFICATION Sub -Licensee will indemnify and hold harmless COMPANY and its successors and
assigns and its officers, directors, employees, subcontractors, consultants, representatives and agents, from
and against any and all losses, damages, injuries (including death), causes of action, claims, penalties,
interest, additional taxes, demands and expenses, including reasonable legal fees and expenses, of any kind
or nature arising out or on account of, or resulting from, any claim or allegation relating to its use of the
Services and Services Data under this Agreement, (b) Sub -Licensee's negligence or willful/intentional
misconduct, or (c) any action or inaction of Sub -Licensee, or those under Sub -Licensee's control, that causes
COMPANY to breach or incur liabilities under the laws, rules or regulations applicable to this engagement.
SUBSCRIPTION AGREEMENT FOR:
2
a
a