e-Suite License Agreement

 


e-Suite License Agreement

1.       Scopee-MarketCommunication, e-MarketOpportunity, e-SalesSupport, and FleetLeads (Collectively “e-Suite”) are Havill & Company, Inc. (“Havill”) services.  This license applies to the e-Suite of Havill services.  You should carefully read the following terms and conditions before using this website.  Unless you have a different license agreement signed by Havill, your use of this website indicates your acceptance of this license agreement and warranty. 

2.       Grant of limited LICENSE – This License Agreement is a legal agreement between you (either an individual or a single entity) and Havill & Company, Inc. for the use of the e-Suite websites, which may include associated media, printed materials, and “online” or electronic documentation.  The use of an e-Suite website is not free.  Subject to the terms below, you are hereby granted a limited license to use an e-Suite website.  In exchange, you will pay Havill the quoted fees and expenses. 

3.       Use of the Licensed website – Havill grants you a limited, non-transferable and nonexclusive license, without the right to grant sub-licenses, to use e-Suite websites only with the authorized username and solely for the purpose for which the e-Suite website was designed.  You shall not in any respect modify, disassemble, de-compile, reverse engineer or otherwise attempt to render source code from any e-Suite website.  Your username and password are strictly confidential.  You shall not transfer, loan, encumber, sell or otherwise make available access to an e-Suite website to any third party.  Havill retains all other rights not expressly granted to you herein.

4.       Ownership – You acknowledge and agree e-Suite websites are the proprietary property of Havill and embodies substantial creative rights, confidential and proprietary information, copyrights, trademarks and trade secrets, all of which shall remain the exclusive property of Havill.

5.       termThis Agreement shall commence upon your first logon to an e-Suite website.  This Agreement will automatically terminate in the event you breach any of the terms or conditions of the Agreement.  This agreement can be canceled by either party for any reason, or for no reason, without notice.  Upon termination of this Agreement for any reason, you shall cease using the e-Suite website and promptly destroy or surrender all data and related materials to Havill.

6.       Confidential Information – You acknowledge and agree that e-Suite websites contains confidential trade secret information.  You agree that e-Suite websites and their related documentation, trademarks and trade names, oral or written reports constitute confidential information ("Confidential Information").  You shall maintain the strict confidentiality of all Confidential Information, whether imparted directly or indirectly to you, orally or in writing, and will neither use nor allow to be used, directly or indirectly, any Confidential Information commercially or otherwise for the use or benefit of you or any third party, including, but not limited to, the concept known as "reverse engineering," nor disclose any Confidential Information under any circumstances to any third party except as specifically authorized or agreed to in writing by Havill.  You will take all reasonable and necessary measures to prevent disclosure of Confidential Information to any and all third parties, except as authorized or agreed to in writing by Havill; provided, however, that such disclosure or access shall be permitted to your employees to the extent required for such employees to perform duties for you not inconsistent with the terms and conditions of this Agreement.  You shall ensure that any such employees who receive access to Confidential Information are advised of its confidential and proprietary nature and that they are prohibited from taking any action prohibited under this Agreement.  Because of the unique and proprietary nature of e-Suite websites, you understand and agree that in the event of an actual or threatened breach by you of the provisions of this Agreement, Havill shall, in addition to any other remedies afforded it by law, be entitled to injunctive relief restraining you from activities constituting a breach of this Agreement.  Nothing herein shall be construed as prohibiting Havill from pursuing any other remedies available to Havill for such breach or threatened breach, including the recovery of damages, costs and attorneys' fees.  You agree to indemnify Havill for all fees, costs, and expenses (including reasonable costs and attorneys' fees) which Havill shall incur in pursuing its rights and remedies hereunder. The provisions of this paragraph shall survive termination of this Agreement.

7.       Exclusion of misuse of Marketing Data – e-Suite websites maintain a database of contact information that includes both business and demographic information.  This marketing data may be sourced and inputted into an e-Suite website by either you, one of your business partners, or Havill.  You acknowledge and agree that you are solely responsible for conformance to any copyrights or other business or government restrictions placed on the use of this information.  HAVILL SHALL UNDER NO CIRCUMSTANCES BE LIABLE TO YOU OR ANY THIRD PARTY, INCLUDING BUSINESS AND GOVERNMENT ENTITIES, FOR COPYRIGHT INFRINGEMENTS OR THE ILLEGAL OR UNAUTHORIZED USE OF MARKETING DATA, EVEN IF HAVILL IS APPRISED OF THE LIKELIHOOD OF SUCH USE OCCURRING.

8.       Access rights – Your data is only accessible by registered users authorized by you.  The database of contact information maintained in an e-Suite website may be used for direct mail, email, and telemarketing purposes by you and your authorized business partners.  You can selectively restrict any authorized users from viewing any record that you have added to an e-Suite website and own.

9.       marketing rights – Havill will market and promote e-Suite websites through news releases, publicity, advertising and other publications.  Havill may, at its discretion, reference clients using e-Suite websites.  Havill uses the information collected to set up services for individuals and their organizations to contact users to further discuss user interest in our company, the services that we provide, and to send information regarding our company.  We may also email information regarding updates to e-Suite services or Havill.

10.    Exclusion of Warranties – e-Suite services are subject to change without notice to you.  Accordingly, Havill reserves the right to alter e-Suite services at any time and any reliance on e-Suite services is at your own risk.  You understand and agree that e-Suite services ARE PROVIDED TO YOU "AS IS."  HAVILL MAKES NO EXPRESSED OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER, WITH RESPECT TO THE E-SUITE SERVICE WEBSITES, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

11.    Exclusion of DamagesHAVILL SHALL UNDER NO CIRCUMSTANCES BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED HEREUNDER, EVEN IF HAVILL IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. YOU ACKNOWLEDGE AND AGREE THAT YOU ASSUME FULL RESPONSIBILITY FOR MAINTAINING AND BACKING UP YOUR DATA.

12.    Limit of LiabilityIN NO EVENT SHALL HAVILL'S LIABILITY ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED HEREUNDER (WHETHER BASED ON AN ACTION OR CLAIM IN TORT, CONTRACT OR OTHER LEGAL THEORY) EXCEED ONE HUNDRED DOLLARS ($100.00).

13.    Actions – In the event of any dispute, arbitration and/or litigation arising out of or relating to this Agreement, or the subject matter hereof, the prevailing party shall be entitled to recover from the losing party all reasonable attorneys' fees and costs incurred by such party in addition to any other judgment or award it may receive.

14.    Governing LawThis Agreement shall be governed by and construed in accordance with the laws of Ohio, without regard to its conflict of law provisions, and the United States, including patent and copyright laws, without reference to the 1980 United Nations Convention on Contracts for the International Sales of Goods.  The exclusive venue for all cases arising out of or related to this Agreement shall be the federal and state courts in the State of Ohio except that, at Havill's option, an action or proceeding arising out of or relating to this Agreement may also be brought in the state or country where you reside or do business.

15.    AmendmentsThis Agreement may not be altered or amended except by an instrument in writing executed by an authorized representative of Havill.

16.    Entire AgreementYOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY ITS TERMS AND SUBJECT TO ITS CONDITIONS. YOU FURTHER AGREE THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT CONCERNING THE SUBJECT MATTER OF THE AGREEMENT BETWEEN HAVILL AND YOU, AND SUPERSEDES ANY PROPOSAL(S), OR PRIOR AGREEMENTS (WHETHER WRITTEN OR ORAL) RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.

 

Confidentiality Agreement and Terms of Engagement

 

1.    Scope - The purpose of this agreement is to define the terms and conditions of the professional relationship between Havill & Company, Inc. ("Havill") and the client. ("Client"), as it pertains to professional services provided by Havill.  With this agreement in place, Havill will provide services resulting from verbal requests with verbal authorization where the total of the fees and expenses associated with the request does not exceed $5,000.  A request for services requiring fees and expenses greater than $5,000 will be addressed through a separate proposal and contract.  Such proposal and contract will supercede this agreement.

2.    Price and Payment -

A.   Fees, Expenses, and Taxes - Havill will provide Client the agreed upon services detailed in our proposal.  In
      exchange, Client will pay Havill Consultants for professional services and expenses incurred.  Havill Consultants
      utilizes a professional time and cost accounting system.

    (1)   Professional Fees - Professional services will be billed on an hourly basis, in 15 minute time increments, with
    the exception of flat rate technical support requests.  Havill's standard fee schedule ranges from $65 to $200 per
    hour.  Per hour billing rates are as follows: Officer Level Consultants, $200; Senior Consultants, $185; Project
    Managers, $165; Research Analysts, $145; Account Managers, $105; Executive Interviewers, $95; Administrative
    Support Staff, $65; and Direct Marketers, $45 per hour.  Havill reserves the right to periodically change its hourly
    rates.  Such change will be submitted to Client, in writing, 30 days before such change is to go into effect.  Any such
    change will affect only time charges incurred after the change is effective.

    (a)    Professional fees will be billed on the basis of actual time from time slips, not from estimated budgets or
    estimated time from project plans.

    (b)    Professional fees for work within the original scope will not exceed original estimate by more than 10% of
    the original estimate.

    (c)     Should Client request that the scope of the authorized service be expanded beyond that of the original
    commissioned work, Havill will notify Client, in writing, prior to conducting the out of scope work.  This letter
    will include a description of the out of scope work along with cost and timing estimates.

    (d)    All professional services will be completed in good faith and in the most cost effective manner available to
    Havill; i.e., all professional services will be assigned to personnel of the appropriate skill level, or be billed
    as such.

    (e)    Technical support relating to software developed, configured, or installed by Havill will be billed at standard
    billing rates with a minimum charge of $100 per incident.

    (2)   Expenses - In the course of providing the products and services, Havill will periodically incur expenses upon
    Client's behalf.  Expenses include, but are not limited to, data, software, printing, courier, and travel expenses. 
   
These expenses will be billed to Client as follows:

    (a)    Expenses will be billed from actual expenses incurred, not from expense estimates provided in project
    plans and/or budgets.

    (b)    Expenses associated with work within the original scope will not exceed original estimate by more than
    10% of the original estimate.

    (c)     Should Client request that the scope that the authorized service be expanded beyond that of the original
    commissioned work and such scope change will result in additional expenses, Havill will notify Client, in
    writing, prior to accruing said additional fees.

    (d)    Expenses will be billed at cost plus 15% to cover administration.  All expenses will be reasonable and
    customary, i.e., air travel via coach.

    (e)    Havill Consultants is licensed by the State of Ohio as a computer hardware and software vendor. 

    (3)   Taxes - Taxes will be billed as an expense item.  Havill Consultants shall be responsible for paying and billing
    Client for any taxes incurred under this agreement.

B.   Invoicing - Invoices will be prepared monthly based on the accumulation of professional fees and expenses.  Havill Consultants will maintain records of actual professional time and expenses that will be available for Client's review throughout the duration of the project.  All invoices are prepared from actual time and expenses incurred, not time and expense estimates reported in project budgets and/or project plans.

C.    Payment Terms - Invoices are due and payable within 30 days of date of billing.  A finance charge of 1.5% per month will be assessed on any unpaid balance after deduction of current payments, credits, and allowances made within 30 days of date of billing.  This is an Annual Percentage Rate of 18%.

3.    Limitations on Liability - Havill draws on information and analysis believed to be reliable.  However, neither Havill nor individuals credited with authorship or support can guarantee accuracy or completeness, or be liable for possible errors of fact or judgment.  Such information shall not be used or relied upon as the exclusive basis for evaluating sales and marketing decisions.  Havill represents and warrants that it has the authority to use information and data in furtherance of its providing services under this agreement, and further represents and warrants that such authority extends to the use by Client and any Client dealers or representatives of information and services provided pursuant to this Agreement.

Client hereby releases and waives any and all claims it may have against Havill, its respective directors, members, shareholders, officers, employees, agents, and representatives (collectively, "Representatives") from any and all claims, liabilities, or damages resulting from the use of information or data or services provided by Havill, unless:  (a) same are occasioned by the negligence or intentional act of Representatives, or (b) same are occasioned by Representatives or their actions in connection with amendments or alteration of the information, data, or services, or (c) same are occasioned by any breach of the representations and warranties regarding authorized use made by Havill in the preceding paragraph.  The foregoing shall include, but not be limited to, any and all reasonable attorney’s fees incurred by Havill.

EXCEPT AS SPECIFIED TO THE CONTRARY ELSEWHERE IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY OR ITS REPRESENTATIVES BE LIABLE TO THE OTHER FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING DIRECTLY OR INDIRECTLY OUT OF THE USE OF, OR INABILITY TO USE, HAVILL CONSULTANTS INFORMATION OR SERVICES.

If any of the limitations on liability of either party or their Representatives contained in this agreement are found to be invalid or unenforceable for any reason by a court of competent jurisdiction, each party agrees that the maximum liability shall not in the aggregate, be greater than the fees paid by Client.  In the event of a dispute between the parties under the terms of this Agreement or in any way connected with the rendering of services under this Agreement, the disputing party agrees to send a written notice to the other party providing the written specifics of the dispute.  Senior management of the party receiving said notice shall agree to meet in good faith to discuss resolution of the dispute with the other party within thirty days of the receipt of the notice.

This agreement shall be governed by Ohio law.  Each party hereby designates the Court of Common Pleas of Lucas County, Ohio, as the court of proper jurisdiction and venue of and for any and all lawsuits or other legal proceedings relating to this agreement and hereby irrevocably consent to such designation, jurisdiction, and venue; and hereby waive any objections or defenses relating to jurisdiction or venue with respect to any lawsuit or other legal proceeding initiated in the Court of Common Pleas of Lucas County, Ohio.

4.    CONFIDENTIAL DISCLOSURE OF THE Client BUSINESS PROGRAM – It is understood that the Client deliverables are confidential, proprietary, and valuable.  Accordingly, such disclosure of information shall be made under the following terms and conditions:

A.       “Client Confidential Information” shall mean information relating to the project disclosed to Havill by Client in writing and marked “Confidential” or, if disclosed orally, confirmed in writing to Havill within thirty (30) days.

B.       “Havill Confidential Information” shall mean information relating to the project, or commissioned services, disclosed to Client by Havill in writing and market “Confidential” or, if disclosed orally, confirmed in writing to Client within thirty (30) days.

C.      Each party agrees to maintain confidential and not disclose to any third party or use Confidential Information of the other, except for the purpose noted above, for a period of two (2) years from the date of disclosure hereunder after which period each party’s obligation of non-use shall cease and each agrees to treat the information received hereunder in the same manner as it treats its own proprietary and confidential information.

D.      The provisions of paragraph C above shall not apply to information:

i.         which was in the public knowledge or literature at the time of disclosure hereunder; or

ii.        which the receiving party had in its possession at the time of disclosure hereunder without obligation of confidentiality; and such provisions shall cease to apply to information which:

(1)    subsequent to its disclosure hereunder and without fault of the receiving party becomes part of the public knowledge;

(2)    is disclosed to the receiving party without obligation of confidentiality by a third party having legal right to do so; or

(3)    is independently developed by employees of the receiving party who have not had access to the disclosing party’s confidential information.

E.       This agreement shall not be construed to grant either party any license or other right except as expressly noted herein.

F.       EACH PARTY SHALL LIMIT THE DISCLOSURE OF ITS CONFIDENTIAL INFORMATION TO THE OTHER PARTY TO THAT REQUIRED FOR THE PURPOSES OF THIS AGREEMENT.  NO CONFIDENTIAL INFORMATION SHALL BE DISCLOSED BY EITHER PARTY UNTIL THE DISCLOSING PARTY HAS DESCRIBED THE GENERAL NATURE AND SCOPE OF THE INFORMATION TO BE DISCLOSED AND THE OTHER PARTY HAS AGREED TO RECEIVE SUCH INFORMATION IN CONFIDENCE AND DESIGNATED THE INFORMATION PURSUANT TO PARAGRAPH A OF THIS PART 4.

G.      All documents, drawings, and writings provided to the receiving party hereunder and copies thereof shall be returned promptly to the disclosing party upon the disclosing party’s written request with the exception of one (1) legal file copy, which may be retained solely for the determination of legal obligations under this Agreement.

H.      The time period for disclosure of information under this Agreement shall expire on December 31, 2004

I.         The term of this agreement shall commence on the date of project authorization.  This agreement can be canceled by either party for any reason, or for no reason, with 30 days written notice.  Termination shall not affect each party’s confidentiality and not-use obligations under paragraphs A and B of this Part 4.

J.        No agreement is either expressed or implied between the parties except as to the obligations set forth in this agreement.

 

Havill & Company, Inc.
3178 NORTH REPUBLIC BLVD. TOLEDO, OH 43615 (419)841-2244 FAX(419) 841-2211

   

© 2001-2006 Havill & Company, Inc.