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AO BAR SERVICE AGREEMENT
THIS AO BAR SERVICE AGREEMENT (“Agreement”) is between AccuCode, Inc., a Colorado corporation with offices located at 6886 South Yosemite Street, Suite 100 Centennial, CO. 80112 USA , (“the Company”) and the “Licensee.”
1. TERM AND RENEWAL
The term of this Agreement shall be month to month subscription.
1.1 Automatic Renewal. After expiration of the initial term, the term of this Agreement will automatically renew for additional, consecutive 1-month periods unless and until the Company receives notice from the Licensee and equipment is returned in working condition.
2.1 Access. Upon Licensee’s acceptance of this Agreement by execution and payment of initial fees as defined in the pricing page of the AO BAR website, the Company will provide Licensee the right to use AO BAR application (“the Software”), and with a single scanning device (“the Hardware”) for the term of the Agreement. Collectively the Hardware and the Software is referred to as AO:Bar.
Company hereby grants Licensee and its affiliates a license to use the AO:Bar as provided herein for the term of this Agreement.
2.2 Upgrades. During the term of this Agreement, if the Company upgrades the version of AO:Bar under this Agreement, Licensee will not be charged an upgrade fee. Should the Company offer enhancements or additional optional software modules or hardware options in the future, Licensee may elect to purchase access to the enhancements or optional software modules or hardware options for an additional fee; however, Licensee has no obligation to do so.
2.3 Hardware. Licensee will be responsible for supplying all mobile computing hardware that are necessary to access and use the Software.
2.4 No Title. This Agreement confers no title or ownership in the Software or Hardware and is not a sale of any rights in the Software or Hardware. The Software is protected by copyright law and international copyright treaty.
2.5 Restrictions of Use. Licensee agrees to use AO:Bar only for Licensee’s and its affiliates’ own business. Licensee shall not (i) use AO:Bar to process or permit to be processed the data of any other party other than its affiliates, or (iii) use AO:Bar in the operation of a service bureau.
2.6 Assignment. Licensee shall not assign or otherwise transfer AO:Bar or this Agreement to anyone, including any parent, subsidiaries, affiliated entities or third parties or as part of the sale of any portion of its business, or pursuant to any merger, consolidation or reorganization without the Company’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.
3.1 During the term of this Agreement, the Company agrees to provide Licensee with telephone access to the Accucode AO Bar Help Desk during their normal business hours in the Mountain States time zone. After hours support may be available at an additional cost, Licensee should contact the Company for additional support offerings and cost.
4. WARRANTY OF TITLE
The Company hereby represents and warrants to Licensee that the Company has the right to grant to Licensee the rights set forth in this Agreement. In the event of any breach or threatened breach of the foregoing representation and warranty, the Company shall, at its option, either: (i) procure, at the Company’s expense, the right for Licensee to use AO:Bar, ii) replace AO:Bar or any part thereof that is in breach with components of comparable functionality that does not cause any breach, or iii) refund to Licensee the full amount of any fees paid by Licensee to the Company. The Company shall indemnify, defend and hold harmless the Licensee, its affiliates, and its and their respective officers, directors, partners, members, managers, employees and agents, from and against all liabilities, losses, claims, demands, actions, costs and expenses (including reasonable attorneys’ fees and litigation costs) which arise or result from the Software infringing any patent, trademark, copyright, trade secret or other proprietary right held by any third party. The foregoing indemnification shall survive any expiration or termination of this Agreement.
5. EXPORT REQUIREMENTS
Both parties agree not to export or re-export AO:Bar or any copy or adaptation in violation of any applicable laws or regulation, including this agreement.
6. FEES & PAYMENT
6.1 The total fees payable by Licensee to the Company for the implementation and use of AO:Bar and any other items or services that are to be supplied by the Company in accordance with this Agreement, shall be as set out in the AO BAR Website “Pricing Page”.
6.2 Payment Terms. Except as otherwise agreed in writing and signed by an authorized officer of both parties, all payments due to the Company shall be due and payable in full within five (5) days of receipt by Licensee of a correct invoice.
6.3 The Company may, at its option and where permissible by law, elect to restrict Licensee’s access to the Software for failure to pay any fees associated with the use of AO:Bar that are past due by more than one (1) month.
6.4 Taxes. Licensee shall, in addition to the other amounts payable under this Agreement, pay all sales, use, value added or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, excluding taxes based on Company’s net income.
6.5 Renewal Pricing. Unless the Company is notified of the Licensee’s intent to cancel, per section 1, this Agreement will renew as provided in section 1 at the same fee structure. Company has the right to modify the fee structure, with the modification taking effect upon the next renewal.
6.6 Refund Policy. Unless otherwise agreed in writing, all customer payments are non-refundable.
7.1 Termination-Each party shall have the right to terminate this Agreement for convenience. Upon termination, the Licensee shall return all hardware provided under the contract. If the Licensee fails to return the hardware within 30 days of termination, the Licensee shall be responsible for on-going subscription fees until hardware is returned. Additionally, upon termination Licensee shall stop all use of the Software.
8. LIMITATION OF WARRANTY STATEMENT
8.1 The Company warrants to Licensee that AO:Bar will perform substantially in accordance with its accompanying documentation for the entire term of this Agreement.
8.2 Warranty does not apply to defects resulting from improper or inadequate installation, maintenance or configuration of the Licensee’s own software performed by non-Company employees, unless said employees were retained as contractors or consultants by the Company.
8.3 Any implied warranty of merchantability or fitness for a particular purpose is limited to the duration of the express warranty set forth above.
8.4 To the maximum extent permitted by applicable law, in no event shall the company or its suppliers be liable for any special, incidental, indirect, or consequential damages whatsoever, including, without limitation, damages for loss of business profits arising out of the use of or inability to use the software, even if the company has been advised of the possibility of such damages; provided, however, the foregoing waiver shall not apply to third party claims subject to the indemnification provisions of this agreement. In any case, except for the company’s indemnification obligations under this agreement, the company’s entire liability under any provision of this agreement shall be limited to the total amount actually paid and payable by licensee for use of the software.
9. GENERAL PROVISIONS
9.1 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Colorado.
9.2 Waiver. The waiver by either party of any default or breach under this Agreement shall not constitute a waiver of any subsequent default or breach of the same or of a different kind.
9.3 Entire Agreement. This Agreement constitutes the entire, final and complete agreement between the parties pertaining to the usage of AO:Bar as a Service including component Software and Hardware provided under this contract, and it shall not be amended, altered or changed except by Company. This Agreement, supersedes any prior oral or written statements, agreements, or representations with respect to the subject matter hereof. In the event of conflict between the provisions of this Agreement and any Schedules attached hereto, the provisions of this Agreement shall control and prevail.
9.4 Severability. In the event that one or more of the provisions of this Agreement shall be found illegal or unenforceable, then such provisions shall be deemed struck and other provisions of this Agreement shall remain in full force and effect.
9.5 Force Majeure: Neither party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delays or failures arise by any reason beyond its reasonable control, including, but not limited to, any act of God, any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots, or any act or failure to act by another party. The parties will promptly inform and consult with each other as to any of the above causes, which in their judgment may or could be the cause of a delay in the performance of this Agreement.
9.6 Arbitration: The parties shall settle any controversy arising out of this Agreement by arbitration in accordance with the rules of the American Arbitration Association. A single arbitrator shall be agreed upon by the parties or, if the parties cannot agree upon an arbitrator within thirty (30) days, then the parties agree that a single arbitrator shall be appointed by the American Arbitration Association. The arbitrator may award attorneys’ fees and cost as part of the award. The award of the arbitrator shall be binding and may be entered as a judgment in a court of competent jurisdiction.
9.7 Choice of Law, Venue, and Jurisdiction: This Agreement shall be deemed to have been made and shall be construed in accordance with the laws of the State of Colorado. Any and all suits or actions to enforce or for breach of the Agreement may be, at Company’s option, instituted and maintained in Arapahoe County, State of Colorado, and Licensee expressly agrees to submit to personal jurisdiction in such venue.
9.8 Notices: All notices under this Agreement shall be in writing and shall be delivered by (i) depositing the notice in the mail, using registered mail, return receipt requested, addressed to the address below or to any other address as the party may designate by providing notice, (ii) faxing the notice by using the facsimile number set forth below or any other facsimile number as the party may designate by providing notice, (iii) overnight delivery service addressed to the address below or to any other address as the party may designate by providing notice, or (iv) hand delivery to the individual designated below or to any other individual as the party may designate by providing notice. The notice shall be deemed delivered (i) if by registered mail, four (4) days after the notice’s deposit in mail, (ii) if by facsimile on the date the notice is faxed, (iii) if by overnight delivery service, on the day of delivery by the delivery service, and (iv) if by hand delivery, on the date of hand delivery.
6886 South Yosemite Street, Suite 100
Centennial, CO. 80112
Attention: Chad Hayes
Facsimile No: 303-639-6178
11.9 Counterparts: This Agreement may be executed in one or more counterparts, each of which shall be deemed on original and all of which shall constitute one and the same instrument. Clicking the “I Accept” button on the AO BAR “Terms and Conditions” page shall be effective and binding on this Agreement and shall be treated the same as original signatures on original documents.×