ACCRISOFT SOLUTION PROVIDER AGREEMENT
This Accrisoft Solution Provider Agreement (this "Agreement") is made by and between Accrisoft Corporation ("Accrisoft"), a Delaware corporation with its principle offices located at 2001 Siesta Drive, Sarasota, FL 34239, and its reseller accepting this Agreement ("you" or "Solution Provider"). In order to exercise the rights granted to you herein you must first agree to be bound by the terms and conditions of this Agreement, without counter offer, addition, deletion or variance, all of which are rejected by Accrisoft. Indicate your acceptance by clicking "Submit" on the order form. If you exit the order process without clicking "Submit," then you reject this Agreement, have no rights whatsoever with respect to any Accrisoft Products (defined herein). If you click "Submit" on the order form, then this Agreement will become effective if it is then accepted by Accrisoft as entered by it on its records, and if so than the date accepted by Accrisoft is the "Effective Date". If Accrisoft rejects this Agreement it may notify you within its discretion, but it need not do so to make the rejection effective.
A. Accrisoft designs and markets a suite of web based commerce, productivity, and information-sharing software applications that utilize a modular approach, where modules may be deployed as a package or individually, and which are administered by the end-user customer and is licensed for use by end-user customers as a service (the "Accrisoft Software"). The Accrisoft Software is implemented by integration with websites that are either designed and owned by Accrisoft ("Accrisoft Designed Website(s)"), or that are designed by third parties for licensees of the Accrisoft Software ("Third Party Designed Website(s)"). (The Accrisoft Software both on a stand alone basis and as integrated into Accrisoft Designed Websites are sometimes referred to as the "Accrisoft Products".) Accrisoft offers hosting services for Accrisoft Products on Accrisoft servers ("Accrisoft Hosting").
B. Solution Provider desires to purchase end-user licenses for the Accrisoft Software to implement on Third Party Designed Websites, and as implemented on Accrisoft Designed Websites, and desires to have the right to purchase Accrisoft Hosting, for resale to Solution Provider's end-user customers, and Accrisoft desires to sell end-user licenses and related Accrisoft Products and Accrisoft Hosting to Solution Provider for resale, on the terms and conditions set forth herein. C. Accrisoft’s end-user licenses provide a license for a free configuration of the Accrisoft Products (the “Free Product”), and three tiers of paid configurations (the “Bronze Product,” the “Silver Product” and the “Gold Product” collectively referred to as the “Paid Products”). The Free Product is licensed only bundled with Accrisoft Hosting..
NOW, THEREFORE, in consideration of the foregoing, the agreements made herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Accrisoft and Solution Provider agree as follows (addenda to this Agreement issued from time to time by Accrisoft to Solution Provider are incorporated herein by this reference):
1.0 Term. The term of this Agreement is the period commencing on the Effective Date and ending upon the written notice of either party to the other (the "Term").
2.0 Appointment. Subject to the terms and conditions herein, Accrisoft appoints Solution Provider to act during the Term as a nonexclusive reseller to purchase and re-sell end-user licenses for the Accrisoft Software integrated by Solution Provider into Third Party Designed Websites and as integrated into Accrisoft Designed Websites and to purchase and resell related Accrisoft Hosting and other services in the Territory (defined herein) to end-user customers only. Accrisoft reserves the right to sell Accrisoft Product licenses and sell related Accrisoft Hosting and other services itself and through others, both within and out of the Territory, in competition with, and without compensation to, Solution Provider. "Territory" means any country in the world where the marketing, licensing of the Accrisoft Products and reselling of related Accrisoft Hosting are not illegal, where the Accrisoft Products are protected by intellectual property rights without Accrisoft having to file any registrations or similar documents, do not prejudice any right of Accrisoft, and do not require any special right or license be obtained by Accrisoft. Accrisoft at its discretion may from time to time change or limit the Territory by written notice to Solution Provider.
3.0 Website and Hosting. Accrisoft will determine which standard Accrisoft Software features are included in the Free Product and Paid Products ("Standard Modules") and which Accrisoft Software features are available for additional monthly licensing fees ("Premium Modules"). The end-user licenses ordered by Solution Provider in accordance with Section 4 will determine whether the license is for a Free Product or a Paid Product, and which Standard Modules and which Premium Modules the Solution Provider may implement.
3.1 Accrisoft Designed Websites. Accrisoft will determine the form and content of the Accrisoft Designed Websites available from time to time during the Term. Solution Provider and/or each of its end-user customers will provide, at its own cost and expense, its unique text, photographs, graphics and other content required for the customer's Accrisoft Designed Website. Accrisoft at its discretion will either provide Solution Provider the ability to web-enable its end-user content for the Accrisoft Designed Websites, or will assist Solution Provider to web-enable the customer content. The Accrisoft Designed Websites are intended to accommodate customer content, and are intended to be customizable by Solution Provider on a limited basis, however there is no assurance that all customer content can be accommodated or that Solution Provider will be able to implement all customizations desired by it.
3.2 Third Party Designed Websites. At Solution Provider's election, it may implement the Accrisoft Software through Third Party Designed Websites. Solution Provider and/or each of its end-user customers will provide and web-enable, at its own cost and expense, its unique text, photographs, graphics and other content required for the customer's Third Party Designed Website.
3.3 Hosting. Solution Provider may purchase for resale Accrisoft Hosting services for Accrisoft Products, and for Third Party Designed Websites, whether or not the website implements the Accrisoft Software. Free Products come bundled with Accrisoft Hosting. Such Hosting may only be used by the Free Product with which it was bundled and you may take no action whatsoever to decouple the Hosting from the Free Product or to use the Hosting for any other purpose.
4.0 Orders and Setup.
4.1 Ordering. Accrisoft will provide Solution Provider with a user ID and password for access to Accrisoft's Solution Provider Portal on Accrisoft's Website (the "Portal"), and will provide a user ID and password for use by Solution Provider in formatting and administering Accrisoft Designed Websites and the Accrisoft Software for which Solution Provider has purchased end-user licenses hereunder. Solution Provider will place Accrisoft Product and Accrisoft Hosting orders through the Portal and agrees to provide complete and accurate information as requested by Accrisoft on its order form and otherwise. Accrisoft may in its discretion require or permit emailed, faxed or other forms of orders as an alternative to web based ordering. No term in Solution Provider's order document or Accrisoft's invoice or order acknowledgment will be of any force or effect, this Agreement being the entire agreement between the parties together with the order information requested by Accrisoft. Orders are not effective unless accepted by Accrisoft either in writing or by its provisioning a licensed copy of an Accrisoft Product to an authorized server.
4.2 Accrisoft Hosting and Setup of Accrisoft Designed Websites. Accrisoft Products and Third Party Websites hosted with Accrisoft Hosting services are hosted by Accrisoft either on its own servers (virtual or dedicated) or on contract servers (virtual or dedicated) with third parties, and the Accrisoft Hosting fees are included in the monthly fees provided for in Section 6. Accrisoft will notify Solution Provider when an Accrisoft Product ordered hereunder has been established on a server and will provide Solution Provider with the server access information. The end-user licenses for Accrisoft Products purchased by Solution Provider will be imbedded in or a part of Accrisoft Designed Websites. Until such time as the end-user license for an Accrisoft Product has been accepted by the end-user as provided in Sections 4.4 and 5.3, the Accrisoft Products are only available for setup and customization by Solution Provider and for review by the end-user customer, not access by users over the Internet.
4.3 License Servers. The Accrisoft Products are programmed to automatically contact Accrisoft's license servers through the internet, at intervals determined by Accrisoft, during which contact the Accrisoft Products are reset and Accrisoft may perform administration and updates to the Accrisoft Products In the event that the Accrisoft Products do not make the required contact then the Accrisoft Product may automatically cease operation, and will only be reset by Accrisoft if Solution Provider not in default of this Agreement, and the end-user is not in default of its End User License, and Accrisoft is paid its then current reset fee. Solution Provider agrees to abide by Accrisoft's administration and update policies that are in effect from time to time. Solution Provider shall embed in Third Party Designed Websites, in accordance with Accrisoft's instructions, the end-user license for the Accrisoft Software and as more fully discussed in Sections 4.4 and 5.3, Solution Provider shall require the end-user to unlock the Third Party Designed Website with a user ID and password on its first access that in turn will take the end-user to an "accept or reject" click through license dialog box. If the end-user rejects the Accrisoft end-user license then the Accrisoft Software will be disabled. Until such time as the end-user license for the Accrisoft Software implemented on a Third Party Designed Website has been accepted by the end-user by whatever mode is required by Accrisoft, the Accrisoft Software is only available for setup and customization by Solution Provider and for review by the end-user customer, not access by users over the Internet.
4.4 End-User Password. For each Accrisoft Designed Website hereunder, Accrisoft will provide to Solution Provider an end-user ID and password. Solution Provider agrees that it shall not enter the end-user ID or Password to access the Accrisoft Designed Website to which it is assigned. Solution Provider agrees to provide the ID and password to the end-user to which Solution Provider sells the end-user license for the Accrisoft Designed Website, with instructions that prior to the Accrisoft Designed Website "going live" for access by users on the Internet, the end-user must first unlock the Accrisoft Designed Website with the ID and Password and must accept the terms of Accrisoft's end-user license. Solution Provider must immediately report to Accrisoft in writing any accidental unlocking of an Accrisoft Designed Website by Solution Provider to permit the site to be re-locked by Accrisoft prior to an end-user being given access, and of any breach in the security of any locked Accrisoft Designed Website. Solution Provider will implement similar procedures for Third Party Designed Websites, which procedures may be reviewed and approved by Accrisoft.
5.1 Ownership. Accrisoft owns all intellectual property in, to and under the Accrisoft Software and Accrisoft Designed Websites (as originally constituted and as later modified by Accrisoft) except for source material provided by Solution Provider or its customers for incorporation into the Accrisoft Designed Websites, which shall remain the separate intellectual property of Solution Provider or its customers, as applicable. No Accrisoft Product shall be deemed a joint work, compilation, derivative work or other work of multiple authorship as a result of incorporation of Solution Provider's or its customers' source material, or its or its customers' inclusion of material in CAR modules (defined herein), or any content from Third Party Providers (defined herein) or other third parties.
5.2 License. Subject to all other terms and conditions in this Agreement, Accrisoft hereby grants Solution Provider a license during the Term to: (i) access the Portal; (ii) use technical and other information provided by Accrisoft regarding Accrisoft Products in furtherance of Solution Provider's end-user license and Accrisoft Hosting sales, and in furtherance of support of its customers; (iii) distribute marketing material provided by Accrisoft regarding Accrisoft Products and Accrisoft Hosting in furtherance of Solution Provider's marketing thereof; (iv) implement Accrisoft Software for Free Products and Paid Products on Third Party Designed Websites, and setup and customize Accrisoft Designed Websites with content, each in accordance with Accrisoft's customization and setup policies in effect from time to time and (v) re-sell to end-users only the end-user licenses for Accrisoft Products purchased by Solution Provider hereunder upon accepted and paid for orders, provided that Solution Provider agrees that it may not, and will not, re-sell any end-user licenses or related Accrisoft Hosting to any local, state, federal or foreign governments unless Accrisoft has issued a Government Resale Addendum to Solution Provider. Solution Provider may not make any copies of any Accrisoft Product for back-up or any other purpose. Without limiting the generality of the foregoing, Solution Provider agrees not to modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble, unlock, decrypt or otherwise attempt to derive source code or view the code of any Accrisoft Product. Solution Provider has no other rights or licenses with respect to end-user licenses or their related Accrisoft Products, or any other material provided by Accrisoft. Without limiting the generality of the foregoing: Solution Provider has no right to alter or add to the terms of the end-user licenses purchased hereunder; and at the expiration or termination of the Term, and during any suspension of the license granted in this Section 5.2, Solution Provider must immediately cease all of these licensed activities and delete all copies of Accrisoft Products in Solution Provider's possession or control.
5.3 End-User License. Each customer of Solution Provider for any Accrisoft Product must agree to the terms and conditions of the end-user license purchased by Solution Provider hereunder for that copy of the Accrisoft Product. The form and substance of all end-user licenses are determined solely by Accrisoft. Accrisoft in general requires that the end-user agree to the terms of the license when the Accrisoft Product, or website on which it is implemented, is unlocked as provided for in Section 4.3, and in addition the license is included on the administrative page of the Accrisoft Designed Websites and must be included in the administrative page of each Third Party Designed Website. At Accrisoft's discretion it may also require Solution Provider to obtain its customers' executed counterparts to the end-user licenses and to deliver the counterparts to Accrisoft. Without limiting any end-user license required by Accrisoft, in general for so long as Solution Provider pays Accrisoft all amounts due hereunder, Solution Provider's customers are granted the right to use and display the Accrisoft Products licensed to them for access by users on the Internet, and to administer CAR modules in accordance with the terms of their licenses and Accrisoft's policies in effect from time to time. All copies of Accrisoft Products must remain in the possession or control of Accrisoft and will not be provided to any customer of Solution Provider or other third party. Once initially sold by Solution Provider, no end-user license may be further re-sold or transferred by the end-user and no person or entity may acquire any rights therein or thereunder. No other rights or licenses are granted to Solution Provider's customers other than as set forth in the end-user licenses.
5.4 Termination and Suspension of License. Each license granted by Accrisoft to Solution Provider under Section 5.2 terminates upon the termination or expiration of the Term in accordance with Section 1. At the expiration or termination of the Term so long as Solution Provider continues timely to pay all amounts due to Accrisoft with respect to each end-user license purchased by Solution Provider prior to the expiration or termination of the Term as well as all other amounts, such end-user licenses will continue in force. If Solution Provider fails timely to pay all amounts due from it hereunder during the Term or after the expiration or termination of the Term then the end-user licenses sold to Solution Provider hereunder will either be cancelled or Accrisoft may in its discretion provide the end-user licensees the opportunity to pay for the license and Accrisoft Hosting directly to Accrisoft, and no amounts or reporting will be due Solution Provider by Accrisoft or the end-user customer, the end user then being Accrisoft’s direct customer. Access to Accrisoft Products provided hereunder will at Accrisoft's discretion be shut down or suspended and all related end-user licenses, and the licenses to Solution Provider under Section 5.2, will be suspended or cancelled upon Solution Provider's failure timely to pay Accrisoft all amounts due hereunder or upon any other material breach of this Agreement by Solution Provider. End-user licenses of Solution Provider customers that are in material breach of their end-user licenses and/or any Accrisoft policies will be suspended or cancelled by Accrisoft within its discretion, and access to their previously licensed copies of the Accrisoft Products will be suspended or shut down.
5.5 Customer Content. Solution Provider shall defend (with counsel chosen by Accrisoft) and shall hold Accrisoft, its officers, directors and shareholders harmless against all damages, costs and expenses of every type and description that result from or are related to Solution Provider's customers' domains, Third Party Designed Websites, any content for Accrisoft Designed Websites and Third Party Websites that is not provided by Accrisoft, any material input by or for Solution Provider's customers in any CAR modules, any acts or omissions of Solution Provider in connection with its marketing of Accrisoft Products or sale of end-user licenses and Accrisoft Hosting, and all claims asserted by Solution Provider's customers regardless of the grounds and regardless of whether the customer commences litigation.
5.6 Marks. During the Term, subject to Accrisoft's approval, Solution Provider may promote itself as an "Authorized Accrisoft Solution Provider." All good will in the use of “Accrisoft” inures to Accrisoft. Solution Provider may not otherwise use "Accrisoft," or any other Accrisoft mark or logo without Accrisoft's express written consent.
6.0 Price and Terms.
6.1 Fees and Payment. For each order hereunder accepted by Accrisoft, Solution Provider will pay Accrisoft a set-up fee and a monthly license and if applicable an Accrisoft Hosting fee in accordance with Accrisoft's then current Solution Provider pricing schedule (as amended from time to time, the "Price List"). The set-up fee and first partial and first whole month's license and Accrisoft Hosting fee are due at the time of ordering, and the monthly license and Accrisoft Hosting fees are then due on the first day of each month thereafter so long as the related end-user license has not been cancelled by Accrisoft. All amounts are payable either in cash paid by check in advance, or by a credit card accepted by Accrisoft. If payments are made by credit card then Solution Provider's acceptance of this Agreement constitutes its direction to Accrisoft to charge the initial and monthly fees, and all other amounts due hereunder to the card identified by Solution Provider to Accrisoft during ordering (which must be in the name of Solution Provider unless the charges are pre-approved by the cardholder in a witting that is provided to Accrisoft) without further payment instructions by Solution Provider (or the card holder), and is deemed to be Solution Provider's (or the cardholder's) signature on file for such charges. Accrisoft may accept other forms of payment and may provide other payment terms within its discretion if it so agrees in writing. Accrisoft may amend the Price List at any time, and from time to time by delivering written notice of the price changes to Solution Provider or by posting the change on the Portal. Price changes will take effect for Accrisoft Products and Accrisoft Hosting ordered after the date of the notice, and for previously ordered Accrisoft Products and Accrisoft Hosting twelve (12) months following the notice of price change. In addition to fees, Solution Provider must also pay in advance or immediately on Accrisoft's request any and all applicable sales, use, excise, value-added or other taxes or duties, customs, permit or license fees and similar charges of any government or governmental authority, other than Accrisoft's income taxes, with respect to all Accrisoft Product end-user licenses and Accrisoft Hosting services purchased under this Agreement. Fees are initially due from Solution Provider upon Accrisoft's acceptance of Solution Provider's order, and no fee due is dependant upon Solution Provider re-selling the end-user license for the Accrisoft Product or the Accrisoft Hosting, or upon Solution Provider being paid by its customers. Upon Solution Provider's request Accrisoft will cancel end-user licenses re-sold by Solution Provider and will shut down Accrisoft Products, and upon Accrisoft's request Solution Provider will shut down and delete all copies of Accrisoft Products. Once Accrisoft cancels an end-user license and the related Accrisoft Product is shut down (and if by Solution Provider then in addition all copies deleted) so that it is no longer accessible on the Internet, no further license or Accrisoft Hosting fees will be due from Solution Provider. Accrisoft may within its discretion agree from to time to provide additional services to or for Solution Provider, which will be charged to Solution Provider at Accrisoft's then current time and materials billing rates and the payment of which are due and payable in advance or on such other terms as Accrisoft agrees to in writing.
6.2 Pricing Plans. Each order accepted hereunder shall designate whether the initial end-user license is for a Free Product, Bronze Product, Silver Product, or Gold Product (each is a “Package”). Each Package includes the bandwidth, storage, services and features as described in the Price List (the “Services”). At the end of any month in which an end user exceeds the Services for any ordered Package (the “Additional Services”), the Solution Provider must upgrade that end user to a Package that includes the Additional Services, effective as of the first day of that month. The Solution Provider is solely responsible to pay Accrisoft for the Packages and Additional Services used by Solution Provider’s end user customers each month, regardless of whether Solution Provider is paid by its customer.
6.3 Additional Terms for Free Products. In addition to all other provisions herein that apply to Solution Provider’s right to re-sell licenses for Accrisoft Products, the following additional terms apply to Free Products and as indicated Bronze Products.
6.3.1. Accrisoft provides end user licenses for Free Products on the terms and conditions herein at no cost to Solution Provider. These no-cost licenses are promotional in nature, however, like with all Accrisoft Products, you are responsible to pay Accrisoft the amounts due it and you are free to charge your customers any or no price as you determine, and you are solely responsible to collect amounts owed to you. You must take reasonable measures to assure that the Free Products are licensed only to end users that have accurately disclosed their identities and contact information, which must be provided to Accrisoft.
6.3.2. Accrisoft reserves the right to terminate Free Product licenses at any time, without prior notice, for any or no reason, including if: (a) the end user fails to log in and access the Free Product at least once every 90 days or fails to keep the Free Product Website continuously active; (b) Solution Provider orders Free Product licenses that are not reasonably calculated to be needed for end user orders as determined by Accrisoft; or (c) an excessive number, as determined by Accrisoft, of licenses for Free Products are provided by Solution Provider to an end user.
6.3.3 Without limiting similar provisions herein and in other Accrisoft agreements, Accrisoft reserves the right to include, imprints, marks and other branding impressions (“Branding”) on all Free Products, and in all e-mails created using the E-Mail Marketing Module service provided in Free Products and in Bronze Products, and Solution Provider agrees that it will not alter, remove, augment, add to, or take any other action to interfere with to any such Branding. In addition, to activate a Free Product the end user must agree to receive regular e-mail or other communication from Accrisoft, and Solution Provider must take no action to prevent or interfere with that agreement.
7.1 Accrisoft Support. During the Term, Accrisoft may within its discretion, without charge to Solution Provider: (i) provide Solution Provider with marketing material that may be in electronic form; (ii) provide technical and sales training to Solution Provider, which Solution Provider agrees to attend at its cost at the times and places designated by Accrisoft; (iii) keep Solution Provider informed of changes to Accrisoft Products available under this Agreement; and (iv) provide Solution Provider with second tier customer support. From time to time Accrisoft may modify the format of the Accrisoft Products available hereunder. Format changes that Accrisoft determines are to preserve the quality of its marks and designs will be mandatory, and Accrisoft may modify Accrisoft Products then licensed to Solution Provider customers without notice to Solution Provider or its customers. Mandatory changes will be at no cost to Solution Provider. Standard Modules and Premium Modules may contain content or feeds from, or links to, third party websites or vendors ("Third Party Providers"). Accrisoft may from time to time change Third Party Providers for like services, and Third Party Providers may from time to time change the content or feeds that they provide, or change the websites to which links are provided, or Accrisoft may from time to time eliminate the services provided by a Third Party Provider (all of the foregoing are "Third Party Changes"). Third Party Changes are mandatory changes. If Accrisoft removes any Premium Module that is paid for as part of the monthly license fee hereunder then that periodic fee will be adjusted by Accrisoft accordingly. No adjustment to fees will be made for mandatory removal of Standard Modules so long as the form and function of the Accrisoft Product is not materially adversely affected.
7.2 Solution Provider Support. In addition to its other obligations hereunder, during the Term and for so long thereafter as any end-user licenses re-sold by Solution Provider remain un-cancelled, Solution Provider will at its own cost and expense be responsible for its customer relations and support, including for complaints and technical problem solving; and will work with Accrisoft's sales and engineering departments to keep Accrisoft informed on customer issues and needs. Certain modules are designated by Accrisoft from time to time as having Customer Administration Rights ("CAR"). Solution Provider or at its option its end-user customers, not Accrisoft, are responsible to set up and maintain the content for CAR modules. The user IDs and passwords to unlock the Accrisoft Products will also provide the end-users with administrative access to CAR modules. Accrisoft will in its discretion change CAR module administrative passwords if provided by Accrisoft upon reasonable notice of any verified security breach. Solution Provider is responsible at its own cost to provide its customers with initial instruction on administering CAR modules. Accrisoft may agree to provide instruction services at its then current time and material rates.
8.1 Abusive Material. Accrisoft may immediately without notice terminate this Agreement, the licenses granted to Solution Provider in Section 5.2 and/or the end-user license of any Accrisoft Product, which may be shutdown or suspended, if any content is posted to a website implementing the Accrisoft Product that is in Accrisoft's sole determination abusive. Abusive content includes, but is not limited to, fraud, “spam”, “phishing”, pornography, gambling or engaging in or promoting any illegal activity. “Spam” includes, but is not limited to, any use of the Email Marketing Module to send unsolicited messages.
8.2 Past Due Amounts. Accrisoft may assess Solution Provider late charges on all past due amounts of up to one and one-half percent (1 1/2%) per month or if less then the highest rate allowed by law. Accrisoft may also collect from Solution Provider all costs of collection, including reasonable legal fees. In the event that Solution Provider fails to pay any amount to Accrisoft when due then all amounts due from Solution Provider to Accrisoft hereunder shall then be immediately due and payable in full and until paid Accrisoft may suspend access to, or shut down any or all Accrisoft Products provided hereunder and may suspend or cancel the end-user licenses therefore, and may terminate this Agreement and the licenses granted to Solution Provider in Section 5.2.
8.3 Material Breach by Solution Provider or End User. Without limiting any other right of Accrisoft under any other section of this Agreement, Accrisoft may terminate this Agreement, terminate or suspend the licenses granted to Solution Provider in Section 5.2, and/or suspend or cancel any end-user license and suspend or shut down the related Accrisoft Products provided hereunder, upon Solution Provider's material breach of any term of this Agreement. In such event Accrisoft can offer Solution Provider's customers the opportunity to continue their end-user licenses by paying the license and Accrisoft Hosting fees directly to Accrisoft and no amounts will be due to Solution Provider from Accrisoft or the end-user customers.
10.0 Warranty. Accrisoft warrants that the Accrisoft Products will function during the Term in all material respects in accordance with their specifications. Solution Provider will notify Accrisoft in writing within three (3) business days of discovering any failure of an Accrisoft Product specifying the failure in sufficient detail to allow Accrisoft to take corrective action. The sole remedy for breach of this warranty is for Accrisoft to correct any such failure at no additional cost to Solution Provider. Accrisoft provides no warranty whatsoever as to its Accrisoft Hosting services, including no warranty that Accrisoft Hosting will be un-interrupted or error free. In lieu of all other remedies relating to Accrisoft Hosting services, Accrisoft will prorate Accrisoft Hosting service fees for down time of more than twenty-four (24) consecutive hours, other than websites shutdown or suspended by Accrisoft under any section of this Agreement. Accrisoft warrants that additional services will be rendered in accordance with the any description agreed to in writing by Accrisoft, and the sole remedy for breach of that warranty is for Accrisoft to correct any deficiency at no additional cost to Solution Provider, however, notwithstanding the foregoing, Accrisoft makes no warranty whatsoever as to the success of search engine campaigns.
11.0 Limitations. THE WARRANTIES MADE IN SECTION 10 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE REMEDIES SPECIFIED IN SECTION 10 ARE IN LIEU OF ALL OTHER REMEDIES. Accrisoft shall not be liable to Solution Provider nor shall Solution Provider have any remedy against Accrisoft for any loss, damage or expense of any kind, including but not limited to, consequential, special, incidental or punitive damages or loss of profits, damages for lost profits or for damages based upon strict or absolute liability in tort, damages in contract or by statute, damages for lost data, spamming, viruses, interrupted transmissions, or unauthorized access to the Accrisoft Products, caused directly or indirectly by Accrisoft’s performance or failure to perform hereunder, regardless of whether Accrisoft has been informed of the possibility of such damages. Accrisoft has no obligation or liability whatsoever to Solution Provider's customers and Solution Provider agrees to defend (with counsel chosen by Accrisoft) and hold Accrisoft harmless against all claims of every type asserted against Accrisoft by Solution Provider customers, regardless of whether litigation is commenced.
12.1 This Agreement, the Price List and Accrisoft's policies referred to herein constitute the entire Agreement and understanding between the parties as to the subject matter hereof, and supersedes and replaces all prior or contemporaneous agreements, written or oral, as to the subject matter. Information on Accrisoft's website is promotional in nature is not an agreement by Accrisoft with Solution Provider.
12.2 Neither this Agreement nor any provision hereof may be released, discharged, waived, abandoned, or modified in any manner, except by an instrument in writing executed by both parties. Any waiver of a default or condition hereof by either party shall not be deemed a continuing waiver of such default or condition. Any delay or omission by either party to exercise any right or remedy under this Agreement shall not be construed to be a waiver of any such right or remedy or any right hereunder.
12.3 This Agreement does not create a partnership, joint venture or agency between the parties hereto, and neither party will hold itself out as such, or as having any authority to bind or create obligations or liabilities for the other party.
12.4 Headings are inserted only for the purpose of convenient reference and it is recognized that they may not adequately or accurately describe the contents of the provisions which they head. Such headings shall not be deemed to govern, limit, modify or in any other manner affect the scope, meaning or intent of the provisions of this Agreement or any part or portion thereof, nor shall they otherwise be given any legal effect.
12.5 Where the context of this Agreement requires, singular terms shall be considered plural, and plural terms shall be considered singular, and masculine, feminine and neuter pronouns shall be equivalent in meaning.
12.6 Solution Provider may not assign this Agreement or any of its rights or obligations hereunder, in whole or in part, without the written consent of Accrisoft. Any purported assignment without Accrisoft’s consent shall be void. Subject to the foregoing, this Agreement is binding on the parties and their successors and assigns.
12.7 In the event that Accrisoft is unable to perform any of its obligations hereunder due to any cause beyond its control, such as wars, acts of God, weather, strikes, third-party equipment or transmission failures, security breaches or failure of Solution Provider to perform its obligations (each a "Force Majeure"), then Accrisoft’s performance hereunder shall be excused until such time as the applicable Force Majeure has ended. In the event that Accrisoft does not perform any obligations due to a Force Majeure (not including failures by Solution Provider to perform its obligations), then the amounts due from Solution Provider hereunder shall be pro-rated based on Accrisoft’s failures.
12.8 All notices hereunder shall be in writing and given by messenger, mail, overnight delivery, fax or email, and will be deemed given when sent.
12.9 This Agreement shall be deemed to have been made in Sarasota, Florida, and all end-user licenses sold to Solution Provider hereunder sold in Sarasota, Florida, for all purposes and shall be governed exclusively by and construed in accordance with the laws of the State of Florida, without regards to conflict of laws, and the parties expressly opt out of all applicable international treaties and conventions that may impact the making, performance or enforcement of this Agreement. Notwithstanding the foregoing, the federal laws of the United States, all foreign laws and all international treaties and conventions that provide Accrisoft with protections and/or rights in connection with Accrisoft's intellectual property and trade secrets shall apply. All actions relating to the making or performance of this Agreement shall be brought in the courts, state or federal, sitting in or closest to Sarasota, Florida, and the parties hereby consent to the jurisdiction and venue of such courts. Notwithstanding the foregoing, Accrisoft may bring suit in any court or before any other body if it deems it necessary to enforce or protect its intellectual property or confidential information, or to enforce its rights or Solution Provider's obligations under this Agreement. This Agreement shall be interpreted in English only and all proceedings of any type related to this Agreement shall be conducted in English only. Solution Provider agrees that it shall not export any end-license from the United States to, and will not allow any Accrisoft Software to be used in, any country as to which such exportation or use is prohibited under the laws of the United States or such other country. Solution Provider agrees to comply with all laws, rules and regulations of Florida and the United States, including those governing export control and Solution Provider is responsible for payment of all tariffs and other charges that may be applicable to its resale of end-user licenses or use of the Accrisoft Software outside of the United States and agrees to defend and hold Accrisoft harmless against all such issues and any such tariffs or other charges. All amounts under this Agreement are in United States Dollars.
12.10 Upon the termination or expiration of this Agreement, or the Term, and/or any licenses granted hereunder, the rights hereunder of Solution Provider and its customers end, however provisions hereunder which by their nature survives, such as payment of money due, Section 11 or this Section 12.10 will survive.