Terms And Conditions
Marutek dba Veplan is a software developer (the "Developer") engaged in the business of
designing, developing, integrating, and hosting computer software and providing
consulting services to deliver electronic commerce business solutions to its
customers (each a "Customer"). By using the Developer’s software, the Customer
agrees to be bound by the following terms and conditions (the "Agreement"),
which together with a Customer Purchase Order and any Work Orders executed by
the Customer and the Developer, comprise the entire agreement between the
Developer and the Customer.
ARTICLE I: LICENSE AND HOSTING
Section 1.01 – Grant of License: During the Term, Developer grants
Customer a nonexclusive and nontransferable license to use the Software subject
to the terms and conditions of this Agreement and the Customer Purchase Order
executed by the Customer. Developer shall host the Software and provide
Customer with access to the Software via the internet. Developer shall be
responsible for any and all costs incurred by Developer to host the Software.
Developer shall perform routine backup of all Customer files stored using the
Software. Developer reserves the right to reuse or sell components, libraries,
database schemas, source code for other projects.
Section 1.02 – Cooperation: Developer and Customer hereby acknowledge
that successful performance of the Services shall require Customer to cooperate
with Developer in good faith and to provide information as may be requested
from time to time. Customer hereby agrees to provide such good faith
cooperation and information. Customer shall disclose to Developer the
information necessary to assist Developer in delivering the Software.
Section 1.03 – Third Party Technology: Customer hereby acknowledges and
agrees that internet access and Microsoft Internet Explorer® Version 6.0 or
higher (the "Internet Application") are required to implement and use the
Software. Customer shall be solely responsible for acquiring, maintaining,
integrating, and updating all necessary equipment and third party software to
implement and use the Software, including all costs, fees, and expenses in
connection therewith. Developer shall have no obligation to supply, provide, or
deliver to Customer internet access or the equipment or software for the
Section 1.04 – Domain Name Registration: Customer hereby acknowledges
and agrees that Customer shall be responsible for registering a domain name for
the Software. Developer shall use the domain name specified by Customer to host
the domain name and the Software as requested by Customer.
Section 1.09 – Service Level: The Software shall be made available to
Customer on the twenty four (24) hours a day, seven (7) days a week, less
downtime that is attributable to: (i) scheduled network, hardware, or service
maintenance; (ii) the acts or omissions of Customer or Customer’s employees,
agents, contractors, or vendors gaining access to the Software; or (iii) a
failure of the Internet and/or public switched telephone network (collectively,
the "Excusable Downtime").
ARTICLE II: PAYMENTS AND FEES
Section 2.01 – Fees and Payment: Developer shall provide the Software to
the Customer for the fees listed in the Customer Purchase Order, and Customer
shall pay all fees in full. In the event additional consulting services are
requested by the Customer, such services shall be performed by Developer at the
time and material rates as set forth in an applicable Work Order executed by
Customer and Developer. All payment obligations under this Agreement shall
survive termination or cancellation of this Agreement.
Section 2.02 – Taxes: Customer shall pay any and all applicable taxes
incurred in connection with this Agreement including (without limitation) any
applicable sales or use taxes and any applicable personal property taxes
(excluding income taxes assessed against Developer).
Section 2.03 – Late Fee: Any amount which is not paid by Customer when
due shall be increased by a late charge equal to 1½% of such unpaid amount for
each month (18% per annum) in which such amount is due and not paid.
ARTICLE III: TERMINATION
Section 3.01 – Term: This Agreement shall be valid for the Term as
defined in the Customer Purchase Order, and shall only be terminated or
canceled as provided under this Article III. Customer may not terminate this
Agreement during the Initial Term set forth in the Customer Purchase Order.
After the Initial Term Customer or Developer may terminate this Agreement upon
thirty (30) days written notice to the other party.
Section 3.02 – Cancellation: If a party violates its obligations under
this Agreement, the other party may cancel this Agreement by sending written
notice describing the noncompliance to the noncomplying party (the
"Cancellation Notice"). Upon receipt of the Cancellation Notice, the
noncomplying party shall have thirty (30) days from the date of receipt of such
notice to cure any such noncompliance (the "Cure Period"). If such
noncompliance is not cured within the required thirty (30) day period, the
party providing the Cancellation Notice shall have the right to cancel this
Agreement as of the expiration date of the Cure Period.
Section 3.03 – Nonpayment: Notwithstanding anything to the contrary,
Customer failure to pay an invoice when due shall constitute a material breach
of this Agreement and be sufficient cause for cancellation of this Agreement by
Developer as provided hereunder. Developer shall exercise such right of
cancellation by submitting a notice of nonpayment to Customer (the "Nonpayment
Notice"). Upon receipt of Nonpayment Notice, Customer shall have twenty (20)
days to cure the nonpayment. If Customer fails to cure the nonpayment within
such twenty (20) days, Developer shall have the right to cancel this Agreement
as of the date established by Developer in the Nonpayment Notice. Cancellation
of this Agreement by Developer for nonpayment shall not relieve Customer from
any payment obligation under this Agreement.
ARTICLE IV: INTELLECTUAL PROPERTY
Section 4.01 – Ownership: Customer hereby agrees that the Software and
all documentation, technology, software all materials incidental thereto (the
"Property") developed or provided under this Agreement shall be the sole and
exclusive property of Developer, and that Developer shall own all of the
rights, titles, and interest to such Property, including (but not limited to)
any and all patents, copyrights, and trade secrets in connection therewith. The
Property shall not be deemed a "work made for hire" under the U.S. Copyright
Act, 17 U.S.C. §101, et seq. Customer hereby assigns, transfers, and conveys to
Developer any and all rights, title, and interest that Customer may have or
accrue in the Property including (but not limited to) any and all patents,
copyrights, and trade secrets in connection therewith. Customer agrees that
Developer may maintain on the Software an internet link to the Developer.
Section 4.02 – Confidential Information: The term "Confidential
Information" shall mean all information disclosed by the Developer to the
Customer or that comes into the possession or knowledge of the Customer and
that is not: (i) already known to the Customer; (ii) in the public domain; or
(iii) conveyed to the Customer by a third party who is not subject to
restrictions to the disclosure or use of such information. For purposes of this
definition, all information concerning this Agreement and the Property shall be
Confidential Information. The Customer shall maintain such Confidential
Information in strict confidence shall not disclose it except to Customer’s
authorized personnel. Customer hereby acknowledges and agrees that the
Confidential Information derives independent economic value (actual or
potential) from not being generally known to other persons who can obtain
economic value from its disclosure or use and not being readily ascertainable
by proper means by other persons who can obtain economic value from its
disclosure or use; is the subject of reasonable efforts by Developer under the
circumstances to maintain its secrecy; and is a trade secret as defined under
applicable state statutes. Customer shall not reverse engineer the Software,
shall not allow the Software to be reversed engineered, and shall not provide
access to the Property to any competitor to the Developer.
Section 4.03 – Cooperation: Customer shall not contest or aid in
contesting the ownership or validity of the copyrights, trademarks, service
marks and trade secrets of Developer. Customer shall cooperate with Developer
and provide Developer reasonable assistance in securing, maintaining, and
enforcing any rights, title, and interests of Developer in and to the Property
and the Confidential Information.
Section 4.04 – Non-compete: Customer hereby acknowledges and agrees that
Customer will receive Confidential Information and trade secrets of Developer
during the Term. Customer acknowledges that Developer has a legitimate business
interest in placing reasonable limits on the use of such information.
Accordingly, during the Term and for a two-year period following the Term,
Customer shall not:
(1) engage in any activities (directly or indirectly) in competition with
(2) induce or solicit (directly or indirectly) engage the services of any
associate of the Developer or induce an associate of the Developer to leave the
employment of Developer; or
(3) use the Property or Confidential Information (directly or indirectly) to
develop, promote, advertise, market, or provide any software similar to or
competitive with the Developer.
Section 4.05 – Continuation: The terms and provisions of this Article IV
shall survive termination and cancellation of this Agreement.
ARTICLE V: WARRANTY
Section 5.01 – Service Warranty: The Software and related services
provided by Developer hereunder shall be provided in a timely and professional
manner by qualified software support personnel familiar with the Software and
shall conform to the standards generally observed in the industry for similar
services at the time such services are rendered. Customer’s sole remedy in the
event of a breach of this Section 5.01 shall be re-performance of the services.
Customer hereby acknowledges and agrees that Developer (including officers,
employees, agents, directors and independent contractors of Developer) has not
made or granted any express warranties concerning the Software and related
services except the warranties set forth in this Section 5.01.
SECTION 5.02 – WARRANTY LIMITATION: THE SERVICE WARRANTY IN SECTION
5.01 IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED
WARRANTIES OF MERCHANTABILITY. DEVELOPER HEREBY DISCLAIMS AND CUSTOMER HEREBY
WAIVES, ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES
Section 5.03– Indemnification: Customer shall defend, indemnify and hold
Developer and its officers, directors, employees, and agents harmless from and
against any and all claims, actions, liability, expenses, costs, or losses
arising from (i) Customer’s improper use of the Software; (ii) Customer’s
combination, interface, operation or use of the Software with third party
products; (iii) misuse of the Software by End-Users; (iv) the acts (or any
failure to act) of Customer hereunder; and (v) any breach by Customer of its
obligations hereunder. This Section 5.03 shall survive termination and
cancellation of this Agreement.
Section 5.04 – Limitation of Damages: Developer shall not be liable to
Customer under this Agreement or in connection with the Property for any lost
profits, consequential, exemplary, incidental or punitive damages, regardless
of the form of action, whether in contract or in tort, including negligence,
and regardless of whether Developer has been advised of the possibility of such
damages in advance or whether such damages are reasonably foreseeable.
Notwithstanding any provision to the contrary, the liability of Developer for
any reason and for any cause of action whatsoever in connection with this
Agreement and the Property shall be limited to the amount of money received by
Developer from Customer under this Agreement. This Section 5.04 shall survive
termination and cancellation of this Agreement.
Section 5.05 – Force Majeure: Developer shall not be liable for any
failure to perform its obligations under this Agreement because of
circumstances beyond the reasonable control of Developer, which such
circumstances shall include (without limitation) natural disaster, terrorism,
riot, sabotage, labor disputes, war, any acts or omissions of any government or
governmental authority, declarations of government, transportation delays,
power failure, computer failure, telecommunications failure, and any other
events reasonably beyond the control of Developer.
ARTICLE VI: MISCELLANEOUS
Section 6.01 – Public Announcements: All public announcements of the
relationship of Developer and Customer under this Agreement shall be subject to
the prior written approval of Developer; provided, however that Developer may
list Customer as a customer of the Developer and/or user of the Software in
Developer’s marketing materials, press releases, and other public documents.
Customer also agrees that it shall work in good faith with the Developer to
document its overall experience, satisfaction, and use of the Software in a
press release to be issued by the Developer. Such press release shall be issued
within six (6) months of the execution of this Agreement, shall be mutually
agreeable to the Developer and the Customer, and shall include quotes from the
Customer and the Developer.
Section 6.02– Entire Agreement: Excepting the Customer Purchase Order
and any Work Order, this Agreement contains the entire understanding of the
parties concerning the subject matter hereof and supersedes previous verbal and
written communications, proposals and agreements between the parties concerning
the subject matter hereof. In the event of a conflict between the Customer
Purchase Order or a Work Order and this Agreement, the terms and conditions of
this Agreement shall prevail, except as explicitly provided otherwise under
such Customer Purchase Order or Work Order. If a provision of this Agreement is
rendered invalid, void or unlawful, the remaining provisions shall remain in
full force and effect.
Section 6.03 – Amendments and Modifications: This Agreement may be
modified and updated by Developer from time to time, and shall be binding upon
30 days written notice to Customer of such modification or amendment.
Section 6.04 – Miscellaneous: The headings and captions of this
Agreement are inserted for reference convenience and do not define, limit or
describe the scope or intent of this Agreement, or any particular section,
paragraph, or provision. This Agreement may be executed in multiple
counterparts, each of which shall be an original, but which together shall
constitute one and the same instrument. All assignments of rights under this
Agreement by Customer without the prior written consent of Developer shall be
void. This Agreement shall be governed by the laws of the State of California
without regard to any rules of conflict or choice of laws, which require the
application of laws of another jurisdiction, and venue shall be Los Angeles,
California. Pronouns and nouns shall refer to the masculine, feminine, neuter,
singular or plural, as the context shall require. Waiver of breach of this
Agreement shall not constitute waiver of another breach. Failing to enforce a
provision of this Agreement shall not constitute a waiver or create an estoppel
from enforcing such provision. Any waiver of a provision of this Agreement
shall not be binding unless such waiver is in writing and signed by the waiving
party. Nothing herein shall be construed as creating a partnership, an
employment relationship, or an agency relationship between the parties, or as
authorizing either party to act as agent for the other. Each party shall
maintain its separate identity. Any controversy or claim arising out of or
relating to this Agreement, or breach thereof, shall be settled by arbitration
in accordance with the Arbitration Rules of Arbitration Rules of the American
Arbitration Association. Judgment upon the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof. Qualified Arbitrators
shall be selected by the parties in accordance with the Arbitration Rules of
Arbitration Rules of the American Arbitration Association. Each party shall
have the right of discovery as set forth in the Federal Rules of Civil
Procedure. Each party hereby represents and warrants that all representations,
warranties, recitals, statements and information provided to the other party
under this Agreement are true, correct and accurate to the best of their
knowledge. In the event of litigation or arbitration arising out of this
Agreement, each party shall pay its own costs and expenses of litigation or
arbitration (excluding fees and expenses of arbitrators and administrative fees
and expenses of arbitration).
Section 6.05 – Notice: Notices shall be in writing. Notices shall be
deemed delivered when delivered by Certified or Registered Mail – Return
Receipt Requested, by commercial express delivery service or by hand to the
address set forth below for Developer or to the address set forth on the
signature page of this Agreement for Customer. Notice shall be deemed given on
the date of receipt - as evidenced in the case of Certified or Registered Mail
by Return Receipt and in the case of commercial express delivery by electronic
or written delivery confirmation.
7510 Sunset Blvd, Unit #556
Los Angeles, California 90046
Last updated June 28, 2005