The following Products License Agreement (“Agreement”) shall govern all usage of all portals, software, web-based products and websites provided through the ofpartner.com domain as well as all software applications using such websites as part of their interface, front-end, or otherwise. (The “Products.”) The Products are provided by ofPartner, LLC, an Ohio Limited Liability Company, with a principal place of business at 1526 Yellowstone Dr, Streamwood, IL 60107 (the “Licensor.”) Use of the Products constitutes agreement with these Product License and creates a binding contract between all persons or entities (“Licensee” and/or “User”) using the Products both individually and in their individual capacity as an employee, officer, agent, partner, etc. of each organization they represent in connection with any use of the Company web site. Use of the Products without agreeing to these Products License is prohibited: if User does not agree with these terms, stop using the Products.
a. "Acceptance" shall mean first use of the Product.
b. "Confidential Information" shall mean (i) the software, technology, ideas, formula, know how, documentation, procedures, algorithms and trade secrets embodied in the Product, technical documentation, solution methodology, user manuals and other deliverables (including the developments and adaptations to the Product) and (ii) any proprietary information provided by either party to the other; except such information that (a) is known prior to its first receipt of such information, (b) is generally known to the public prior to its receipt, (c) after receipt, becomes available to the public other than as a result of a disclosure by either party, or (d) is required to be disclosed pursuant to an applicable law or by order of any court or governmental agency.
c. “Documentation” shall mean all manuals, user documentation, and other related materials pertaining to the Product which are furnished to Licensee by Licensor in connection with the Products. The Documentation describes in detail the specifications and functionality of the Products.
d. “Error” shall mean a reproducible failure of Products to perform substantially in accordance with the description of Products detailed in the Documentation.
e. “Infringement” shall have the meaning described in Section 8.
f. “Intellectual Property Rights” shall mean all copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contract rights, and other proprietary rights.
g. "Professional Services" shall mean consulting, technical and other services provided by Licensor in connection with the Products. Professional Services shall not include Maintenance and Support Services.
h. "Product" shall mean the software systems, including any updates, customizations, or enhancements, provided under this Agreement, as delivered, and as modified by Licensor, accompanying Documentation and all ideas, concepts, methods, and techniques embodied therein.
2. Rights in Products
a. License. Effective upon Acceptance of the Products and continued payment of amounts pursuant to the terms of a Service Agreement, and provided that Licensee is and remains in compliance with the terms of the Agreement, Licensor grants to Licensee a non-exclusive, non-transferable license to use the Products executable code and accompanying Documentation solely for its internal operations.
b. Rights. Licensee acknowledges and agrees that Licensor or its licensors have and will retain all right, title, interest, and ownership in and to the Products and any copies or updates of the Products. Licensee acknowledges that the Products constitutes proprietary information and trade secrets of Licensor and its licensors, whether or not any portion thereof is or may be the subject of a valid copyright or patent. Licensee shall maintain all data contained in the Products or any portion thereof, which will remain the property of Licensee. Licensee will hold in strict confidence and shall not publish, communicate, or disclose, or permit to be published, communicated, or disclosed, to third parties such information related to the Products functionality without Licensor's prior written consent. Licensee agrees to take all appropriate steps to ensure that persons having access to the Products shall refrain from any unauthorized reproduction or disclosure of the Products or any portion thereof.
c. Limitations. Licensee agrees not to (i) copy (except for back up purposes), perform, distribute, modify, adapt, alter, translate, or create derivative works from the Products (unless done under the direction of Licensor); (ii) merge the Products with other software (unless done under the direction of Licensor); (iii) sublicense, assign, lease, rent, or loan the Products, or this Agreement, to any third party; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Products; (v) remove any copyright, trademark, patent or other proprietary notices from the Products or any portion thereof; or (vi) otherwise use the Products except as expressly allowed in this Agreement.
d. Export. Licensee shall comply with all applicable export and import control laws and regulations in its use of the Products, and, in particular, Licensee shall not export or re-export the Products without all required United States and foreign government licenses. Licensee understands that access and use of the Products from outside the United States may constitute export of technology and technical data that may implicate export regulations and/or require export license.
Licensor shall provide access to the Products to the Licensee. Licensee shall provide, at its own expense, all hardware necessary to access the Products. Licensor shall provide the infrastructure necessary for the Products to be accessible.
4. Term and Termination
a. Term. This Agreement shall commence upon Acceptance and shall continue in effect until termination.
b. Effects of Termination. In the event of termination of this Agreement by Licensor for Material Breach, any amounts owed to Licensor will be immediately invoiced, all licenses granted in this Agreement will immediately cease to exist, and Licensee shall promptly discontinue all use of the Products, erase all copies of the Products from Licensee’s computers, and return to Licensor all copies of the Products, Documentation, and any Confidential Information in Licensee’s possession or control, and certify to Licensor in writing that it has fully complied with these requirements.
a. Licensor may attempt try to correct any Error in the Products. In substitution of correcting Errors in the Products Licensor may, at its own cost and option, supply a modified or improved Products version suited for the contractually contemplated purpose and in conformance with the functionality of the Products as described in the original documentation provided to Licensee, or make available a by-pass solution that does not diminish or lessen the Products’ functionality as described in the Documentation. Licensor shall cover all costs, if any, associated with implementing the modified or improved Products versions supplied to Licensee in the event of Errors in the Products.
b. Any warranty by Licensor shall not apply to any error which is caused by Licensee, its customers or third parties, and/or any breakdown and error due to improper use, improper installation, improper handling, or maintenance (unless done by Licensor), improper operating means, modifications of the Products by Licensee (unless done under Licensor’s direction), use with third party Products not recommended by Licensor, or any tampering with the Products.
c. Licensor warrants that the Products shall perform according to the specifications described in the Documentation.
d. EXCEPT AS PROVIDED IN THIS SECTION, ALL PRODUCTS AND SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. LICENSEE RECOGNIZES THAT THE AS IS CLAUSE OF THIS AGREEMENT IS AN IMPORTANT PART OF THE BASIS OF THIS AGREEMENT, WITHOUT WHICH LICENSOR WOULD NOT HAVE AGREED TO ENTER THIS AGREEMENT. LICENSOR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS AND SERVICES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. LICENSEE ACKNOWLEDGES THAT HE OR SHE HAS RELIED ON NO WARRANTIES OR STATEMENTS OTHER THAN AS MAY BE SET FORTH HEREIN.
Licensor’s relationship with Licensee shall be that of an independent contractor and nothing in this Agreement should be construed to create a partnership, joint venture, agency, or employer-employee relationship.
Both parties shall use Confidential Information only for the purposes of this Agreement and shall not disclose Confidential Information to third parties.
8. Infringement Indemnification
Should any portion of the Products as delivered by Licensor hereunder become, or in Licensor's opinion be likely to become the subject of a claim of Infringement, then Licensor may, at its option and expense: (i) procure for Licensee the right to use the Products free of any liability for Infringement; (ii) replace or modify the applicable portion of the Products with a non-Infringing substitute without diminishing the performance or functionality of the Products as described in the original Documentation of the Products provided by Licensor; or (iii) terminate this Agreement.
9. Legal Compliance
Licensor may suspend or terminate use of Products and this Agreement upon receipt of any notice from a government agency which alleges that Licensee has used the Products for any purpose that violates any local, state, federal or law of other nations, including but not limited to the posting of information that may violate third party rights, that may defame a third party, that may be obscene or pornographic, that may harass or assault others, that may violate hacking or other criminal regulations, etc. of its agents, officers, directors, contractors or employees. In such event, Licensor may disclose the Licensee’s identity and contact information, if requested by a government or law enforcement body, or as a result of a subpoena or other legal action.
All terms of this Agreement, which by their nature are intended to survive termination of this Agreement, including without limitation, sections entitled “Warranty”, “Miscellaneous”, shall so survive termination.
11. Force Majeure
Any party shall be excused from performing hereunder to the extent that it is prevented from performing as a result of any act or event which occurs and is beyond its reasonable control, including, without limitation, acts of God, war, weather, utility or telecommunications outages, spread of communicable diseases, unrest or riot, strikes, any action of a governmental entity, executive orders; etc. provided that the party experiencing the force majeure provides the other with prompt written notice thereof and uses reasonable efforts to remedy effects of such matter.
If any provision of this Agreement is prohibited by law or held to be unenforceable, the remaining provisions hereof shall not be affected, and this Agreement shall continue in full force and effect as if such unenforceable provision had never constituted a part hereof, and the unenforceable provision shall be automatically amended to so as to best accomplish the objectives of such unenforceable provision within the limits of applicable law. Any waiver of a provision of this Agreement must be in writing and signed by the party to be charged. A valid waiver hereunder shall not be interpreted to be a waiver of that obligation in the future or any other obligation under this Agreement. A failure of either party to this Agreement to enforce at any time any of the provisions of this Agreement, or to require at any time performance of any of the provisions hereof, shall in no way affect the full right to require such performance at any time thereafter. No waiver shall be deemed a waiver of any other breach of the same or any other term or condition hereof.
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