Software License Agreement

1.0.0

27 July 2018

This End User License Agreement (“Agreement”) is created upon the date of Client acceptance of these terms between BCD Technology, Inc., a company registered in the state of Colorado, with a principle office at 2556 South Eaton Place, Lakewood, Colorado, 80227 (“BCD”), and the individual or company who is the owner of the email provided to BCD Olympus in order to create a login and account (“Client”).

WHEREAS, BCD has created a product of services and capabilities referred to as BCD Olympus ("Olympus"); and

WHEREAS, Client wishes to utilize Olympus; and

WHEREAS, Client agrees that their recorded acceptance of these terms is just as binding as any signature; and

NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements contained herein, the parties have agreed and do agree as follows:

Client will be provided with access to the Olympus platform, and will be given the ability to consume these RESTful services as desired.

Client agrees to abide by the Terms and Conditions with all Service utilization.

This Agreement will continue in-perpetuity on a month-to-month basis.

Client will be automatically billed monthly based on the agreed upon rates. These rates are subject to change with at least a thirty (30) day notice period. Any calendar month that the client consumes Services will be billable, BCD does not pro-rate costs.

All Services provided are owned and will be retained by BCD. Client has no rights to source code, ideas, concepts or any other component. Client is simply paying for the convenience of using Services. However, any works that are derived by Client without BCD that utilize the Services shall be retained by Client.

At times, BCD may provide Software Development Kits to help aid utilization of Services. These SDKs are provided as-is, without warranty on performance or capability. BCD gives Client a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to Client by BCD as part of the Services. This license is for the sole purpose of enabling Client to use and enjoy the benefit of the Services as provided by BCD, in the manner permitted by these terms. Client may not copy, modify, distribute, sell, or lease any part of our Services or included software, nor may Client reverse engineer or attempt to extract the source code of that software, unless laws prohibit those restrictions or Client has written permission from BCD.

The parties enter into this Agreement as independent contractors and nothing within this Agreement shall be construed to create a joint venture, partnership, agency, or other employment relationship between the parties. All BCD employees who are assigned to perform services at any Client owned or leased facility shall be considered to be an employee of BCD only and will not be considered an agent or employee of Client for any purpose. BCD will be solely responsible for payment of all compensation owed to its employees, including all applicable federal, state and local employment taxes and will make deductions for all taxes and withholdings required by law. In no event will any BCD employee be eligible for or entitled to any benefits of Client.

  1. Client understands and acknowledges that BCD may, from time to time, disclose “Confidential Information” to Client. For purposes of this Agreement, the term “Confidential Information” shall include but not be limited to any nonpublic and/or proprietary information or materials relating to BCD’s promotional and/or marketing strategy and activity, BCD’s pricing information (including but not limited to rates, margins, and budgets), BCD’s financial and budget information, BCD’s customer lists, information about the education, background, experience, and/or skills possessed by BCD employees, BCD employee compensation information, BCD’s service and/or sales concepts, BCD’s service and/or sales methodology, BCD’s service and/or sales techniques, BCD’s customer satisfaction data or sales information, or any information which BCD marks or identifies as “confidential” at the time of disclosure. Client will not disclose BCD Confidential Information to any third party at any time without the prior written consent of BCD and shall take reasonable measures to prevent any unauthorized disclosure by its employees, agents, contractors, or consultants. Further, BCD’s Confidential Information shall include the terms set forth in this Agreement, all of which shall remain the property of BCD and shall in no event be transferred, conveyed, or assigned to Client as a result of the services provided pursuant to this Agreement. The foregoing duty shall survive any termination or expiration of this Agreement.
  2. BCD also understands and acknowledges that Client may, from time to time, disclose to BCD proprietary ideas, concepts, expertise, and technologies developed by Client relating to computer application programming, installation, and operation (collectively “Client Confidential Information”). Client may further provide to BCD documentation, reports, memoranda, notes, drawings, plans, papers, recordings, data, designs, materials, or other forms of records or information relating to Client’s business operations (collectively “Confidential Trade Information”). BCD agrees
    1. not to use any Client Confidential Information or Confidential Trade Information for its own use or for any purpose other than the specific purpose of completing the Services;
    2. not to voluntarily disclose any Client Confidential Information or Confidential Trade Information to any other person or entity; and
    3. to take all reasonable measures to protect the secrecy of, and avoid disclosure or use of, Client Confidential Information and/or Confidential Trade Information in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized hereunder to have such Client Confidential Information and/or Confidential Trade Information.
    4. The foregoing duty shall survive any termination or expiration of this Agreement.
  3. In no event shall Client or BCD use the disclosing parties Confidential Information to reverse engineer or otherwise develop products or services functionally equivalent to the products or services of the Owner.
  4. The following shall not be considered Confidential Information for purposes of this Agreement:
    1. Information which is or becomes in the public domain through no fault or act of the receiving party;
    2. Information which was independently developed by the receiving party without the use of or reliance on the disclosing party’s Confidential Information;
    3. Information which was provided to the receiving party by a third party under no duty of confidentiality to the disclosing party; or
    4. Information which is required to be disclosed by law with no further obligation of confidentiality, provided, however, prompt prior notice thereof shall be given to the party whose Confidential Information is involved.
  5. The parties agree that the disclosure of any of the foregoing Confidential Information by either party shall give rise to irreparable injury to the owner of the Confidential Information, inadequately compensable in monetary damages. Accordingly, the non-disclosing party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available.
  6. Nothing in this section (7) is meant to supersede or contradict the Mutual Confidentiality Agreement executed by the parties NDA DATE. If there is a contradiction, the agreement that is most in favor of the disclosing party will prevail.

Neither party will, either directly or indirectly solicit, hire, or contract with any employee working for the other party during the term of this Agreement and for a three (3) year period following termination thereof (hereafter the “Non-solicitation Term”). In the event that a party desires to directly hire an employee working for the other party during the Non-solicitation Term, the requesting party must first seek written consent to speak with said employee about the employment opportunity. In the event that the parties agree to the conversation, and the employee accepts an offer of employment, the parties shall discuss issues related to the employee's transition. The employee's start date will be mutually agreed upon by the parties in writing. If either party hires an employee without first obtaining the consent of the other party, the breaching party shall be subject to pay damages equal to 100% of the employee’s fair market salary. This provision is considered a material term that allows for accelerated termination rights under paragraph 14 of this Agreement.

Any warranty offered by BCD for Services provided herein shall be set forth in the the terms for any individual Service. In the absence of any warranty language for a Service, BCD warrants that all Services provided pursuant to this Agreement will be provided in accordance with the general standards and practices of the information technology industry in existence at the time the Services are being provided.

IN THE EVENT THAT THERE IS NO WARRANTY SET FORTH FOR A SERVICE, THE FOREGOING EXPRESS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS EXPRESSED OR IMPLIED, ORAL OR WRITTEN, CONTRACTUAL OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE TO THE EXTENT APPLICABLE

Client agrees that BCD shall not be liable to Client, or any third party, for

  1. any liability claims, loss, damages or expense of any kind arising directly or indirectly out of services provided herein
  2. any incidental or consequential damages, however caused, and Client agrees to indemnify and hold BCD harmless against such liabilities, claims, losses, damages (consequential or otherwise) or expenses, or actions in respect thereof, asserted or brought against BCD by or in right of third parties or
  3. any punitive damages. For purposes of this Agreement, incidental or consequential damages shall include, but not be limited to, loss of anticipated revenues, income, profits or savings; loss of or damage to business reputation or good will; loss of customers; loss of business or financial opportunity; or any other indirect or special damages of any kind categorized as consequential or incidental damages under the law of the State of Colorado. BCD’s liability for any damages hereunder shall in no event exceed the amount of fees paid by Client to BCD as of the date the alleged damages were incurred.

Each party shall indemnify, defend and hold harmless the other, its employees, principals (partners, shareholders or holders of an ownership interest, as the case may be) and agents, from and against any third party claims, demands, loss, damage or expense relating to bodily injury or death of any person or damage to real and/or tangible personal property directly caused solely by the negligence or willful conduct of the indemnifying party, its personnel or agents in connection with the performance of the Services hereunder. To the extent that such claim arises from the concurrent conduct of Client, BCD and/or any third party, it is expressly agreed that BCD’s liability shall be limited by the terms and provisions of paragraph ten (10) herein and that, with respect to any remaining obligations to pay any third party claims, demands, losses, damages or expenses that are not limited by the terms and provisions of paragraph ten (10) herein, each party's obligations of indemnity under this paragraph shall be effective only to the extent of each party's pro rata share of liability. To receive the foregoing indemnities, the party seeking indemnification must promptly notify the other in writing of a claim or suit and provide reasonable cooperation (at the indemnifying party's expense) and full authority to defend or settle the claim or suit. The indemnifying party shall have no obligation to indemnify the indemnified party under any settlement made without the indemnifying party's written consent.

BCD is an Equal Opportunity Employer and does not discriminate in recruitment, hiring, transfer, promotion, compensation, development, and termination of its employees on the basis of race, color, sex, age, marital status, national origin, handicap, religious beliefs, veteran's status or other protected category as required by applicable Federal, State and local laws. Client likewise represents that it will not discriminate in the referral or acceptance of Consultants hereunder on the basis of race, color, sex, age, marital status, national origin, handicap, religious beliefs, veteran's status or other protected category as required by applicable federal, state and local laws.

Services are provided on a month-to-month basis, and may be terminated at any time. BCD offers no pro-rated refunds or discounts. Termination within twenty-four (24) hours of the start of a calendar month will not incur charges.

In order to resolve disputes quickly, efficiently and in a less public forum than in court, the parties herein agree to mandatory arbitration in lieu of legal action. The following outlines this arbitration agreement.

Any claim, controversy or dispute, whether sounding in contract, statute or tort, or any other legal theory, related directly or indirectly to the fees or other charges by BCD to Client, including but not limited to Client non-payment of any amounts billed, shall be resolved by mandatory binding arbitration as prescribed in this section. The Federal Arbitration Act, not state law, governs the arbitration, including but not limited to the question of whether a claim is subject to arbitration. Client and BCD each agree to waive any right to trial in a court of law and any right to a trial by a jury that may otherwise exist.

The arbitration will be administered by the American Arbitration Association under its commercial arbitration rules. The arbitration shall be to a single arbitrator who is a licensed attorney with at least ten (10) years’ experience in the jurisdiction in which the BCD office is located, and the arbitration shall be held in that city. Judgement upon the award rendered by the arbitrator may be entered in the court having jurisdiction.

This agreement to arbitrate contains risks and benefits and requires each party to give up rights they would otherwise have. By signing this Agreement, both BCD and Client agree to waive the right to bring an action in court, and to a have a jury trial, and the right to an appeal. In most circumstances, the decision of the arbitrator is final and may not be appealed or challenged, except on very limited grounds. Discovery – the parties’ right to obtain information from each other and third parties – is or may be limited or precluded in arbitration. Arbitration may be more or less expensive than an action in court. The arbitrator may allocate the costs of arbitration, including the fees of the arbitrator, to one or both of the parties.

BCD may provide the same or similar services to other customers and Client may utilize other information technology service providers that are competitive with BCD.

The rights and remedies provided to each of the parties herein shall be cumulative and in addition to any other rights and remedies provided by law or otherwise. Any failure in the exercise by either party of its right to terminate this Agreement or to enforce any provision of this Agreement for default or violation by the other party shall not prejudice such party’s rights of termination or enforcement for any further or other’s default or violation or be deemed a waiver or forfeiture of those rights.

Neither party will be liable to the other for failure to perform its obligations hereunder if and to the extent that such failure to perform results from causes beyond its control, including and without limitation: strikes, lockouts, or other industrial disturbances; civil disturbances; fires; acts of God; acts of a public enemy; compliance with any regulations, order, or requirement of any governmental body or agency; or inability to obtain transportation or necessary materials in the open market.

All notices required under or regarding this Agreement will be in writing and will be considered if delivered personally, via email, mailed via registered or certified mail (return receipt requested and postage prepaid), given by facsimile (confirmed by certification of receipt) or sent by courier (confirmed by receipt) addressed to the following designated parties:

If to BCD: Notice can be provided via the BCD "Contact Us" page.

If to Client: Notice will be provided via the email address by which the Client registered.

If any term or provision of this Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement will not be affected.

The section headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.

This Agreement constitutes the entire agreement between the parties and supersede any prior or contemporaneous communications, representations or agreements between the parties, whether oral or written, regarding the subject matter of this Agreement.

See section 16.

This Agreement is made under and will be construed in accordance with the law of Colorado without giving effect to that state's choice of law rules. The forum for any dispute or litigation arising out of this Agreement outside of the constraints of the mandatory arbitration clause herein shall be in the Courts of Common Pleas of BCD’s Home County Court or in the Federal District Court for BCD’s Federal District Jurisdiction.

This Agreement shall inure to the benefit of BCD and Client and any successors or assigns of BCD and Client. No third party shall have any rights hereunder.

BCD may modify this Agreement or any additional terms that apply to a Service to, for example, reflect changes to the law or changes to our Services. Client will be required to accept any changes to these terms in order to continue utilizing the Services. Changes will not apply retroactively and will become effective no sooner than fourteen days after they are posted. However, changes addressing new functions for a Service or changes made for legal reasons will be effective immediately. If Client does not agree to the modified terms for a Service, Client should discontinue use of that Service.

If there is a conflict between these terms and the additional terms, the additional terms will control for that conflict.

These terms control the relationship between BCD and Client. They do not create any third party beneficiary rights.

If Client does not comply with these terms, and BCD does not take action right away, this doesn’t mean that BCD is giving up any rights that BCD may have (such as taking action in the future).

If it turns out that a particular term is not enforceable, this will not affect any other terms.

The laws of Colorado, U.S.A., excluding Colorado’s conflict of laws rules, will apply to any disputes arising out of or relating to these terms or the Services. All claims arising out of or relating to these terms or the Services will be litigated exclusively in the federal or state courts of Jefferson County, Colorado, USA, and Client and BCD consent to personal jurisdiction in those courts.

For information about how to contact BCD, please visit our contact page.