SPRWT END USER SOFTWARE LICENSE AGREEMENT
Last Modified: February 20, 2023
NOTICE TO USER: PLEASE READ THIS AGREEMENT CAREFULLY. USING ALL OR ANY PORTION OF THE SOFTWARE INDICATES YOUR ACCEPTANCE OF ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE RESTRICTIONS ON USE AND TRANSFERABILITY (CONTAINED IN SECTION 4). YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE, YOU MAY NOT USE OUR SOFTWARE AND MUST CONTACT Sprwt LLC TO TERMINATE YOUR LICENSE AND TO RETURN ALL COPIES OF THE SOFTWARE LICENSED TO YOU.
When used in this Agreement, the following terms shall have the respective meanings indicated, such meanings to be applicable to both the singular and plural forms of the terms defined:
"Computer" means an electronic device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.
“Licensee”, “You” and “Your” mean You, Your Company and Your Company’s employees, unless otherwise indicated.
"Licensor" means Sprwt LLC (“Sprwt”).
"Permitted Number" means One (1) Kitchen Location, unless otherwise indicated under a valid license (e.g., volume license) granted by Sprwt.
“Kitchen Location” means a single kitchen location operated by a single entity that has capability for: (a) food preparation; (b) order fulfillment; (c) generating master reporting data; and (d) being a Pickup Location.
“Retail Location” means a single location operated by the same entity as a Kitchen Location, and that also has capability for: (a) order fulfillment; (b) sharing reporting data; (c) sales of grab and go foods, beverages and other products; and (d) being a Pickup Location.
“Pickup Location” means a single location that uses a Kitchen Location’s menu for: (a) order fulfillment; and (b) sharing reporting data. A pickup location must be owned by a third-party entity (not Licensee) and is limited to the usage of a customer picking up orders. Any other usage of this (i.e., the facility is operated by the same entity as a Kitchen Location or is used as a retail outlet for sales of Grab and Go foods) is considered a Retail Location.
"Software" means the web-based application, currently known as “Sprwt”, accessible to You pursuant to this Agreement and licensed to You by Sprwt. It includes all of the content made available through the web-based application, along with all intellectual property (including, but not limited to, copyrights, trademarks, trade dress, look and feel, and other intangible components).
"Use" or "Using" means to access, install, download, copy or otherwise benefit from using the functionality of the Software in accordance with the Documentation.
2. SOFTWARE LICENSE.
This End User Software License Agreement ("Agreement") is made and effective as of the day you agree to these terms (the “Effective Date”), by and between Sprwt LLC ("Licensor") and You ("Licensee"). The Software is a proprietary product of Sprwt and is licensed (not sold) to customers for their Use only under the terms of this Agreement.
In consideration of Your payment of the setup and license fees set forth below and Your compliance with the terms of this Agreement, Sprwt grants to you a non-exclusive and non-transferable license to Use the Software for the purposes described herein.
2.1 General Use.
You may install and Use the Software on Your compatible Computer, up to the Permitted Number of domains for Use at the Permitted Number of kitchens or similar establishments. A separate License is required for each installation of the Software in excess of the Permitted Number. The Software is a platform developed to enable a meal-prep business owner to manage and operate their meal prep business as it relates to internet orders and customer utilization and software management. The software is equipped with various features including, but not limited to: custom meal builder, meal packs, chef menu, a macro-nutrition calculator, gift cards, user profile with royalty system and a referral system, billing, email delivery notifications, detailed cooking/chef reports, delivery reports and label reports.
2.2 Use of Software.
2.2.1 Licensee Owned Data. All data and logos uploaded by Licensee remains the property of Licensee, as between Sprwt and Licensee (Licensee Data). Licensee grants Sprwt the worldwide, perpetual right to use, publicly display, and distribute the Licensee Data for purposes of performing under this Agreement and other business purposes of Sprwt.
2.2.2 Agent Access and Usage. Licensee may allow its authorized employees, agents, or contractors to access the Software in compliance with the terms of this Agreement, which access must be for the sole benefit of Licensee. Licensee is responsible for the compliance with this Agreement by its employees, agents, or contractors.
2.2.3 Licensee Responsibilities. Licensee (i) must keep its passwords secure and confidential; (ii) is solely responsible for Licensee Data and all activity in its account in the Software; (iii) must prevent unauthorized access to its account, and notify Sprwt promptly of any such unauthorized access; and (iv) may use the Software only in accordance with the Software’s documentation and applicable law.
2.2.4 Technical Support. Sprwt offers customer support for the Software in accordance with the pricing plan Licensee orders. Refer to Your pricing plan details for further information.
2.3 Customization. This Agreement does not include the customization of the Software for You or Your business. Any additional, agreed-upon customization and/or modifications shall be billed separately to You by Sprwt at its customary rates and charges.
3.1 Your pricing consists of monthly recurring fees (according to the Software plan you select), and fees associated with each transaction. In addition, Sprwt charges a one-time “Basic Setup Fee.” The Basic Setup Fee is refundable if Licensee terminates the License within the first seven (7) calendar days after initial installation. Thereafter, the Basic Setup Fee is non-refundable. Monthly recurring fees and per-transaction fees are non-refundable.
3.2 Your License to Use the Software is contingent upon the successful payment of the amounts due under this Agreement or any other agreement made between You and Sprwt. Your failure to pay as required shall be considered a material breach of this Agreement and shall, at Sprwt’s sole option, subject you to either a temporary or permanent revocation of this License in addition to all other remedies available to Sprwt.
3.3a Licensee acknowledges that the Software requires Licensee’s use of either Stripe, Inc. (individually and collectively “Merchant Account”) for the financial transactions on Licensee’s website, and that account crediting, refunds, fraud protections and the like for Licensee’s Merchant Account are controlled by the policies and procedures of those companies and Licensee’s bank(s). By using Sprwt, Licensee agrees to the Sprwt Payments Terms of Services.
3.3b Licensee agrees to look solely to Licensee’s Merchant Account, Licensee’s bank(s) and/or Licensee’s customer(s) with regard to any issues that may arise concerning those accounts and/or Licensee’s customer transactions, including but not limited to payment processing, credits, refunds, and fraudulent purchases. Further, Licensee agrees to indemnify Licensor against all claims, demands, damages, losses, causes of action and the like that may arise from and/or relate to any transaction(s) and/or attempted transaction(s) by, with and/or through Licensee’s Merchant Account and/or Licensee’s bank(s).
3.3c Licensees utilizing Stripe Standard connect accounts agree that the Licensor reserves the right to copy and migrating the following information from your accounts to the Sprwt Connect platform, customer ID, customer email, customer name, customer phone, customer metadata, and the customer's credit card information including but not limited to, card number and expiration date.
3.3c Licensee agrees to pay Sprwt, the Licensor a one and one-half percent (1.5%) application fee per transaction on any transaction on Sprwt including but not limited to usage of Stripe or Cash payment methods to process any transaction and checkouts. Licensee agrees that the standard processing rate for any Card not Present (CNP) credit card processing Stripe is 2.9% + 30c per transaction.
3.3d . Licensee also agrees that end-users may pay Sprwt a service fee up to $1.75 per transaction after .
3.4 In the event Licensee fails to pay any amount owed, and the Software is suspended as a result, Licensee may elect, within seven (7) days, to pay all past due amounts owed and a $250 reactivation fee. Failure to do so within the prescribed timeframe shall result in deletion of Licensee’s Content.
3.5 Licensee must pay all fees as they become due, but if not specified then, within 7 days of receipt of an invoice. Licensee is responsible for the payment of all sales, use, withholding, VAT and other similar taxes.
3.6 The Licensee agrees to pay a late fee equal to the lesser of (i) one and one-half percent (1.5%) interest per month or (ii) the maximum amount permitted to be charged under applicable law. Such late fee shall apply to any payment set forth on the invoice.
4. INTELLECTUAL PROPERTY RIGHTS.
4.1 The Software is the intellectual property of and is owned by Sprwt. The structure, organization and code of the Software are the valuable trade secrets and confidential information of Sprwt and its suppliers. The Software is protected by copyright and trade secret laws, including without limitation by United States Copyright Law, international treaty provisions and applicable laws in the country in which it is being used. You may not copy the Software or any portion thereof (including the look and feel of the Software). Sprwt retains ownership of and all rights in the Software and in any copy, derivative or modification of the Software and/or its documentation, no matter by whom made. You agree that unauthorized copying, transfer and/or distribution of the Software will cause great damage to Sprwt, which damage is far greater than the value of the copies of the Software. It is expressly understood and agreed by You that nothing in this Agreement is intended to nor shall any provision(s) be construed to assign or transfer to You (or to require Sprwt to assign or transfer to You) any of Sprwt’s copyrights and other ownership rights, in both cases related to the Software and/or to Sprwt’s proprietary information and/or trade secrets (“Sprwt’s Confidential Information”).
4.2 You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software.
4.3 Any information supplied by Sprwt or obtained by You, as permitted hereunder, may only be used by You for the purpose described herein and may not be provided, disclosed, transferred, assigned or otherwise made available to any third party or used to create any software that is substantially similar to the expression of the Software.
4.4 Except as expressly stated above, this Agreement does not grant You any intellectual property rights in the Software.
4.5 Reservation of Rights. The software, workflow processes, user interface, designs, know-how, and other technologies provided by Sprwt as part of the Software are the proprietary property of Sprwt and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with Sprwt. Licensee may not remove or modify any proprietary marking or restrictive legends in the Software. Sprwt reserves all rights unless expressly granted in this agreement.
4.6 Restrictions. Licensee may not (i) sell, resell, rent or lease the Software or use it in a service provider capacity; (ii) use the Software to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iii) use the Software in any unlawful manner or in any other manner that could damage, disable, overburden, impair, or disrupt the integrity or performance of the Software; (iv) attempt to gain unauthorized access to the Software or their related systems or networks; (v) reverse engineer the Software; (vi) access the Software to build a competitive service or product, or copy any feature, function or graphic for competitive purposes; (vii) use, support, or develop bots, scrapers, software, scripts, crawlers, browser plugins, robots, or other automated methods including human-powered automation through like farming or any other crowd-sourced methods to access, scrape, or copy any portion of the Software, or to add or download data, or send or redirect information or messages; (viii) grant administrative or privileged access to the Software to anyone other than an employee or owner of Licensee; or (ix) permit or enable anyone to do any of the foregoing without Sprwt’s written consent.
4.7 License to Your Content. Licensee owns any intellectual property rights in and to its ingredient lists, recipes and meals. Licensor cannot use, disclose or resell that information to any third party without Licensee’s written consent. Licensee does, however, grant to Licensor the right to access, sell and/or otherwise use all or any portion of Licensee’s customer volume and data, purchasing habits and behaviors, order preferences and/or customer contact information for any lawful purposes.
4.8 Judicial Process. In the event You receive a subpoena or other validly issued administrative or judicial process (i.e. deposition, interrogatories, requests for information or documents in legal proceedings, civil investigative demand or other similar process) requesting all or part of Sprwt’s Confidential Information, You will undertake to provide reasonable notice to Sprwt of such receipt, so that Sprwt may seek to obtain a protective order or other reliable assurance that Sprwt’s Confidential Information will be accorded confidential treatment. Thereafter, You shall be entitled to comply with such subpoena or other process to the extent permitted by law. If, in the absence of a protective order or other remedy or the receipt of a waiver by Sprwt, You are nonetheless legally compelled to disclose Sprwt’s Confidential Information to any government agency, tribunal or other party, or else stand liable for contempt or suffer other censure or penalty, You may, without liability hereunder, disclose Sprwt’s Confidential Information to such government agency, tribunal or other party, without liability to Sprwt.
5. TERM AND TERMINATION.
5.1 This Agreement and the License granted herein shall commence upon the Effective Date and continue until all of the obligations of the parties have been performed or until earlier terminated as provided herein.
5.2 This Agreement shall terminate upon the occurrence of any of the following events:
5.2.1 In the event either party defaults in any material obligation owed to the other party pursuant to this Agreement, then this Agreement may be terminated if the default is not cured following at least forty-five (45) days written notice to the defaulting party. If such default is a payment default by the Licensee, no such notice is required, and any termination by Sprwt shall not relieve Licensee of such payment obligation through the date of such termination; or’
5.2.2 Either party is bankrupt or insolvent, or bankruptcy or insolvency proceedings are instituted against a party and the proceeding is not dismissed within forty-five (45) days after commencement.
5.3 The License granted herein shall terminate immediately upon the termination of this Agreement. Upon the termination of the License, Licensee shall: (i) immediately cease Use of the Software; (ii) immediately destroy and/or delete all copies of the Software in Licensee’s possession and/or control; and (iii) certify such to Licensor such destruction/deletion within seven (7) calendar days after the termination of the License.
5.4 Licensee may terminate this Agreement at any time with written notice to Sprwt via email at firstname.lastname@example.org. If any termination shall be received after the seventh (3rd) calendar day of the next billing date, then Licensee shall be obligated to Licensor for the entire period’s license fee (whether said period is monthly or annual, based on the plan selected by Licensee).
5.4.1 Clients may cancel their account with us at any time by providing us with at least 3 days' written notice. The notice must be in writing and must be sent to the following email address: email@example.com The notice must include the following information:
- The client's name
- The client's website URL
- The date that the client plans to switch their service to an alternative platform
Once we have received the required notice, the client's account will be cancelled at the end of the current billing period. The client is responsible for cancelling all of their customers' subscriptions and recurring orders or future orders before cancelling their account. Failure to do so will result in potential recurring charges. We are not responsible for any damages caused by the failure to properly cancel accounts.
5.4.2 The client agrees to indemnify and hold us harmless from any and all claims, losses, damages, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or in connection with the client's failure to comply with this cancellation policy.
5.4.3 If a client fails to provide us with the required notice, we will not be liable for any damages caused by the client's cancellation. We hope this cancellation policy is clear and concise. If you have any questions, please contact us at firstname.lastname@example.org
5.5 Maintenance of Licensee Data.
5.5.1 For 7-days after termination, certain Licensee Data will be retained, limited to Ingredients, Meal Recipes, and Extra Items. Once a subscription is terminated by you or us, it is archived and the data submitted or created by you is no longer available to you.
5.5.2 After 7-days, Sprwt has no obligation to maintain the Licensee Data and may destroy it or use it for any lawful purpose.
5.6 Return Sprwt Property Upon Termination. Upon termination of this Agreement for any reason, Licensee must pay Sprwt for any unpaid amounts, and destroy or return all property of Sprwt. Upon Sprwt’s request, Licensee will confirm in writing its compliance with this destruction or return requirement.
5.7 Suspension for Violations of Law. Sprwt may temporarily suspend the Software or remove the applicable Licensee Data, or both, if it in good faith believes that, as part of using the Software, Licensee has violated a law. Sprwt will attempt to contact Licensee in advance.
6. NO UNLICENSED SHARING.
The total number of domains, kitchens, and/or other establishments Using the Software may not exceed the Permitted Number of one (“1”) license per entity. You may not rent, lease, sublease, sublicense, lend, copy or allow any other individual, company, organization and/or entity to Use the Software, irrespective of any relationship that such other individual, company, organization, and/or entity has with You. A breach of this Section shall constitute a material breach of this Agreement and subject your account to immediate termination.
7. REPRESENTATIONS AND WARRANTIES
7.1 Authority. You represent and warrant to Sprwt that: (a) You have the legal right and authority to enter into this Agreement; (b) this Agreement forms a binding legal obligation on Your behalf; and (c) You have the legal right and authority to perform Your obligations under this Agreement and to grant the rights and licenses described in this Agreement.
7.2 Compliance with Laws. You acknowledge that (a) the Software is developed to enable a meal-prep business owner to manage and operate their meal prep business as it relates to internet orders and customer utilization and software management; (b) the Software is a general purpose service and is not specifically designed to facilitate compliance with any specific law; and (c) You will access and use the Software in compliance with all laws applicable to You, Your Content, and any other Software Content You may access through the Software. Sprwt is not responsible for notifying You of any such law, enabling Your compliance with any such law, or for Your failure to comply. You represent and warrant to Sprwt that Your Content, Your services, and Your use of and access to the Software, including any Software Content, will comply with all applicable laws and will not cause Sprwt itself or any other User to violate any applicable laws, including, without limitation, any rule or regulation released by the Food and Drug Administration.
THE SOFTWARE, CONTENT, ADD-ON FEATURES, AND ANY SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” SPRWT AND ITS AFFILIATES DO NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, ADEQUACY OR CURRENCY OF THE SOFTWARE OR ANY CONTENT. SPRWT AND ITS AFFILIATES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE SOFTWARE, CONTENT, SERVICES AND OTHER SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SPRWT, ITS EMPLOYEES, AFFILIATES OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION.
9. LIMITATION OF LIABILITY.
9.1 SPRWT WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH OR OUT OF THE USE OF THE SOFTWARE, CONTENT, OR SERVICES, EVEN IF SPRWT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF LICENSEE DATA, CONTENT, OPPORTUNITY, REVENUES, PROFITS OR REPUTATION, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE CONTENT, GOODS OR SERVICES. SPRWT’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND ALL CONTENT AND SERVICES PROVIDED UNDER THIS AGREEMENT OR THROUGH THE SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED $100 OR, IN THE CASE OF YOU HAVING PAID FEES TO SPRWT TO ACCESS THE SOFTWARE OR ANY CONTENT OR SERVICES, THE AMOUNTS PAID BY YOU TO SPRWT IN THE THREE (3) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO ANY LIABILITY. YOU AGREE THAT SPRWT WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, SPRWT’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
9.2 You acknowledge that some security breaches involve attacks on computer systems and data. For example, there are viruses and other malware that: (i) delete or destroy data (sometimes individual files, but sometimes even an entire disk by corrupting a master boot record or other key element); (ii) modify files (such as parasitic malware that attaches itself to a file and modifies the file to enable its own execution and/or propagation); (iii) encrypt files on systems (such as ransomware that uses asymmetric encryption); and (iv) seek to exfiltrate data for the attackers’ personal gain (such as selling information on the “black market”). In addition, there are certain attacks that pray on humans being trustworthy, such as phishing attacks and social engineering schemes. Although the Software contains protections to reduce the probability of these attacks occurring on Licensee Data, Sprwt cannot guarantee that Software will prevent all such occurrences of attacks, especially human-based incidents. Sprwt is not responsible for creating Your security policies and will merely allow the Software to be configured with Your policies. You are ultimately responsible for the business continuity and operation of Your computer systems and ensuring that data is properly backed up and able to be restored. Sprwt strongly suggests You obtain adequate cyber liability insurance from a reputable carrier and that Your policies and procedures are aligned with the requirements of the elected cyber liability insurance policy.
10. ADD-ON FEATURES. The following terms and conditions shall apply in the event Licensee orders any optional, add-on services from Sprwt for the Software. Sprwt reserves the right to modify pricing for add-on features from time to time after 15 days’ advance notice to Licensee.
10.1 Plan Upgrades: At the discretion of Licensor, new features, modules, or platforms may require an additional fee to be paid as a one-time purchase or monthly recurring fee.
10.2 Software Infrastructure. Sprwt’s standard infrastructure configuration for each customer environment includes 2GB RAM, 1vCPU, and 2TB of storage. If You require additional RAM, CPU, or Storage, you will be invoiced extra each month for the additional resources.
10.3 Backups. Licensee may protect Licensee Data by adding a backup service. This service will ensure Licensee has a previous version of Licensee Data to reinstall if any errors occur to such data or if data is otherwise corrupted or compromised. This service is billed monthly.
10.4 Snapshots. Snapshots are manual instances taken of a server that can be backed up. They can occur more frequently than traditional backups and are recommended for licensees with higher volume. This service comes with a one-time setup fee and monthly recurring fees thereafter.
10.5 Load Balancers. Load Balancers are a readily available, fully-managed service that work right out of the box and can be deployed in minutes. Load Balancers distribute incoming traffic across Licensee’s infrastructure to increase the Software’s performance. Load Balancers are easily managed remotely by Licensor. Support for multiple protocols includes HTTP, HTTPS, TCP, and managed TLS certificates. This service comes with a one-time setup fee and monthly recurring fees thereafter.
10.6 SMS/MMS. One-time setup fee of $100, plus $0.07 per SMS message and $0.08 per MMS message. Each message has a character limit of 140 characters. In addition, You will be charged an additional 10% for the total amount of messages you send in order to cover costs of incoming messages.
10.7 Inbound & Outbound Phone Line. Custom Phone lines are $8.50 per month per line or an annual rate of $100 per line per year.
You hereby agree to indemnify, defend, and hold harmless Sprwt and its officers, directors, shareholders, affiliates, employees, agents, contractors, assigns, Users, customers, providers, licensees, and successors in interest (“Indemnified Parties”) from any and against all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from any and against all claim or allegation against any Indemnified Party arising in any manner from: (1) Your access to or use of the Software, including any Content or Services; (2) Your content or any access to or use thereof; (3) any access to or use of Your Content by any other users; (4) Your collection, use and disclosure of any User information, and (5) Your breach of any provision of this Agreement, including any representation or warranty. Sprwt will provide You with notice of any such claim or allegation, and Sprwt will have the right to participate in the defense of any such claim at its expense.
12. OTHER TERMS
12.1 This Agreement shall not prejudice the statutory rights of any party dealing as a consumer. This Agreement may only be modified by a writing signed by an authorized officer of Sprwt. Updates may be licensed to You by Sprwt with additional or different terms. This is the entire agreement between Sprwt and You relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software.
12.2 Entirety of this Agreement. The terms and conditions set forth herein constitute the entire agreement between the parties and supersede any communications or previous agreements with respect to the subject matter of this Agreement. There are no written or oral understandings directly or indirectly related to this Agreement that are not set forth herein. No change can be made to this Agreement other than in writing and signed by both parties.
12.3 No Assignment. Licensee may not assign or transfer this Agreement or an order to any third party without the written consent of Sprwt, except that no such consent shall be required in the event of a merger, or sale of substantially all the assets, of a party.
12.4 Independent Contractors. The parties are independent contractors with respect to each other.
12.5 Enforceability and Force Majeure. If any term of this Agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation force majeure events.
12.6 Feedback. By submitting ideas, suggestions or feedback to Sprwt regarding the Software, Licensee agrees that such items submitted do not contain confidential or proprietary information; and Licensee hereby grants Sprwt an irrevocable, unlimited, royalty-free and fully-paid perpetual license to use such items for any business purpose.
12.7 Except as otherwise provided below, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach or termination, of this Agreement and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to this Agreement (each, a “Dispute”), in accordance with the procedures set forth in this Section. If any Dispute cannot be resolved through negotiations between the parties within 5 days of notice from one party to the other of the Dispute, such Dispute will be finally settled through binding arbitration under the arbitration rules of the American Arbitration Association (“AAA”) then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days (the “Initial Period”) after either party to this Agreement delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted exclusively in the English language at a site specified by Company in Hillsborough County, Florida U.S.A. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues, or accountings presented or pleaded to the arbitrator. The award of the arbitrators will require payment of the costs, fees, and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
12.8 Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Florida. Licensee hereby irrevocably (i) submits to the exclusive jurisdiction of any Florida state or Federal court sitting in Hillsborough County, Florida, in any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, (ii) agrees that all claims in respect of such action or proceeding may be heard and determined in such Florida state court or in such Federal court, and (iii) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding.
12.9 NO CLASS ACTIONS: You may only bring individual claims. Under no circumstances are you allowed to bring a claim as a plaintiff or a class member in a class. Class action lawsuits, class-wide arbitrations, private attorney-general actions, and any other proceedings where someone acts in a representative capacity are not allowed. Any combining of individual proceedings must have the consent of all parties.
12.10 Headings. The headings in this Agreement are for convenience only, confirm no rights or obligations in either party, and do not alter any terms of this Agreement.
12.11 Severability and Enforceability. Neither party shall be considered the “drafter” for the purpose of any statute, case, or rule of construction that might cause any provision to be construed against the drafter of the Agreement.
12.12 If the Software is identified as export controlled items under the Export Laws, You represent and warrant that You are not a citizen of, or otherwise located within, an embargoed nation (including without limitation Iran, Iraq, Syria, Sudan, Libya, Cuba, North Korea, and Serbia) and that You are not otherwise prohibited under the Export Laws from receiving and/or Using the Software. All rights to Use the Software are granted on condition that such rights are forfeited if You fail to comply with the terms of this Agreement and/or if any of Your representations in this Agreement are false.
12.13 If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included. The failure of any party at any time to require performance by the other party of a provision under this Agreement shall in no way affect the right of that party to thereafter enforce the same, or to enforce any of the other provisions of this Agreement; nor shall the waiver by any party of the breach of any provision hereof be taken or held to be a waiver of any subsequent breach of any such provision or as a waiver of the provision itself.
12.14 Notice to US Government End Users. If You are acquiring the Software on behalf of any unit or agency of the United States Government, the following provision applies: The Software was developed exclusively at private expense and with no government funding; The Software is a trade secret of Sprwt for all purposes of the Freedom of Information Act; The Software and Documentation are "Commercial Items," as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable, subject to limited utilization; and the Software and all copies of it, in all respects, are and shall remain proprietary to Sprwt . Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users: (a) only as Commercial Items, and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights are reserved under the copyright laws of the United States. Use, duplication or disclosure by the U.S. Government or any person or entity acting on its behalf is subject to restrictions for software developed exclusively at private expense, as set forth in the Department of Defense, Rights in Technical Data Computer Software clause at DFARS 252.227-7013 or any successor clause; and for all government agencies, the Commercial Computer Software-Restricted Rights clause at FAR 52.227-19 or any successor clause. Use of the Software shall be limited to the facility for which it was acquired. All other U.S. Government personnel Using the Software are hereby on notice that the Use of the Software is subject to restrictions which are the same as, or similar to, those specified above. For U.S. Government End Users, Sprwt agrees to comply with all applicable equal opportunity laws including, if appropriate, the provisions of Executive Order 11246, as amended, Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 USC 4212), and Section 503 of the Rehabilitation Act of 1973, as amended, and the regulations at 41 CFR Parts 60-1 through 60-60, 60-250, and 60-741. The affirmative action clause and regulations contained in the preceding sentence shall be incorporated by reference in this Agreement.
12.15 Compliance with Laws. If You are a business or organization, You agree that upon request from Sprwt or Sprwt’s authorized representative, You will within five (5) days fully document and certify that Use of any and all Sprwt Software at the time of the request is in conformity with Your valid licenses from Sprwt.
12.16 Binding Effect. All rights, obligations, duties, restrictions and qualifications herein provided for shall insure to, and be binding upon, the parties hereto, each of their heirs, executors, administrators, legal representatives, successors and permitted assigns.
12.17 Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO: (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. If You have any questions regarding this Agreement or if You wish to request any information from Sprwt please use the address and contact information included with this product to contact the Sprwt office serving Your jurisdiction.
12.18 Trademarks. Sprwt LLC, Slickmeals and Slickview LLC are either registered trademarks or trademarks of Sprwt LLC & Slickview LLC in the United States and/or other countries.