License Agreement

License Agreement

Please read through the terms of this license agreement. If you agree to these terms, add this to your order. You will be asked to confirm that you Accept Terms & Conditions before you can complete your purchase.

NCM Associates, Inc. (“NCM”) owns and operates an online Application at [program].sf.ncmassociates.com (the Application) where it stores and operates various proprietary systems, software routines, and stores data in various databases, and allows Customer access to this material and NCM provides Services in conjunction with the design and operation of the Application.  Customer wishes to subscribe to the Services of NCM, and/or the use of the Application, generally for the purpose of accessing the systems, software and data, and for uploading its own data into the system, and then accessing the data in the operation of its business.  For this purpose, Customer wishes to become a Subscriber to the Application, and NCM wishes to allow Customer to access the Application according to the terms set forth herein.  Because internet-based systems, and the technology used to maintain and use the Application change from time to time, NCM reserves the right to change the terms of this Agreement upon 30 days notice to Customer, and NCM reserves the right to change the operation of the Application at any time as needed.  Customer shall be granted a license as a Subscriber to the Application upon payment to NCM of all monthly or periodic fees charged, and Customer agrees to pay all such fees in exchange for the Subscription entered between the parties. The information maintained on the Application, and all reports, analysis and documents available on the Application, whether or not they include the data of the Customer, shall be referred herein as the NCM Materials.

1. GRANT OF LICENSE. NCM grants to Customer access to the Application, and the resources thereon to which Customer has elected to subscribe on the terms and conditions provided in this Agreement, to use the portions of the Application purchased herein and any other portions of the Application ordered from time to time by Customer subject to Paragraph 2 of this Agreement.  Customer also has responsibility for the selection, use, and results obtained from use of the Application, or other services used with the Application.  This License Agreement allows the Customer at their choosing to use the various portions of the Application set forth in Addendum A.  The Customer, when using any services of NCM under this Agreement, will be bound by the terms and conditions of this Agreement.

 

1. PAYMENTS AND TAXES.  Customer’s right to use the Services of NCM, and/or the Application is conditioned upon Customer executing this Agreement and paying the appropriate license fee in effect at the time of selection for the particular Services selected by the Customer.  In addition, Customer shall be responsible for State or Province and local excise, sales, privilege, storage, use delivery, consumption or transportation taxes, however, or wherever levied. This license terminates if Customer does make all payments called for by this agreement.

 

3. SUPPORT SERVICES.  NCM will provide Support Services in accordance with the Addendum.

 

4. USE OF SERVICES.  The license granted under this Agreement authorizes Customer to use the Application on computer equipment used by Customer via the Internet.  Customer will make no attempt to download any unauthorized software, code, reports or other information from the Application, and Customer will not attempt to reverse engineer the software running on the Application.

 

5. TITLE, LICENSE, TERMS AND CONDITIONS.  Title and full ownership rights to the Application, Data, and all Services thereon remain with NCM.  If Customer shall make any use, transfer or disclosure of the contents of the Application, or any NCM Services in violation of any of the terms and conditions of the Agreement, the license granted under this Agreement shall, at the option of NCM, immediately terminate without demand or notice; and NCM shall have the right to immediate possession of all information of any kind downloaded or stored from the Application, and to destroy or remove any of Customer’s data stored within the Application or NCM’s system. Licensed software programs and related materials supplied by NCM with no compensation owing therefore by NCM to Customer.  Customer shall not take any action that might adversely affect NCM’s proprietary rights or in any manner interfere with NCM’s right to enter into agreements with other prospective users of the licensed software programs.  Customer shall fix or cause to be fixed to the Software such evidence of proprietorship as NCM may reasonably request.  If the Customer shall cease doing business, shall be declared bankrupt, or shall suffer any attachment or lien to remain on the licensed software programs for more than thirty (30) days, the license granted by this Agreement shall terminate. Any and all reports or other information downloaded from the Application, including any customization, enhancements, modifications, or improvements made by the Customer shall be considered derivative works based upon the NCM Material, and shall be the property of NCM.  Use of such derivative works shall be governed by the terms of this Agreement.

 

6. COPYING OR MODIFICATION OF NCM MATERIAL.  Customer shall not modify, reproduce or copy the NCM Materials, or the reports, information or documents received by Customer from or through the Application in any manner in whole or in part, other than as provided by Paragraph 5 above.  Additional copies may be obtained from NCM in accordance with the terms hereof.  Customer assumes all risks from any modification, enhancements, or improvements Customer makes, and making any improvement, modification, or enhancement voids all warranties provided in Paragraph 7 below.

 

7. WARRANTY.  NCM warrants that it will make reasonable efforts to allow access to the Application by Customer, subject to routine maintenance periods.  It is understood that outages, and periods of inability to access the Application, or the data stored thereon, may occur from time to time.  Loss damage or corruption of the data stored on the NCM servers is possible and no warranty is given that the same may not occur. NCM makes no promise or warranty that its servers or internet connections will not be subject to periodic malfunctions or irregularities. NCM’s sole obligation and liability under this warranty shall be to use its best efforts to correct defects in the Application so that it will substantially conform to the documentation.   THE FOREGOING EXPRESS WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND EXCEPT AS PROVIDED HEREIN THE LICENSED SOFTWARE PROGRAM IS LICENSED “AS IS”.  NCM DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE LICENSED SOFTWARE PROGRAM WILL OPERATE IN THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY CUSTOMER OR WILL MEET CUSTOMER’S REQUIREMENTS.  NCM DOES NOT WARRANT THAT CUSTOMER’S OPERATIONS OR LICENSED SOFTWARE PROGRAM WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL PROGRAMMING ERRORS WILL BE CORRECTED.

NCM’S LIABILITY FOR DAMAGES INCLUDING BUT NOT LIMITED TO PATENT OR COPYRIGHT INFRINGEMENTS, REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED THE CHARGES PAID BY CUSTOMER FOR THE PARTICULAR LICENSED SOFTWARE PROGRAM INVOLVED.  NCM WILL NOT BE LIABLE FOR ANY LOST PROFITS, OR FOR ANY CLAIM OR DEMAND AGAINST CUSTOMER BY ANY OTHER PARTY, EXCEPT A CLAIM FOR PATENT OR COPYRIGHT INFRINGEMENT AS PROVIDED HEREIN.

IN NO EVENT WILL NCM BE LIABLE FOR CONSEQUENTIAL DAMAGES EVEN IF NCM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8. REMEDIES.  No remedy herein conferred upon or reserved to NCM is intended to be exclusive of any other remedy herein or by law provided, but each shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute.

 

9.   APPLICABLE LAW.  This Agreement shall be interpreted in accordance with the laws of the State of Missouri.

 

10. INVALIDITY.  If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the remainder of this Agreement shall not be affected thereby.

 

11. SECTION HEADINGS.  Section headings have been included in this Agreement merely for convenience or reference.  They are not to be considered part of or to be used in interpreting this Agreement.

 

12. ASSIGNMENT.  NCM and Customer represent that the execution and performance of the terms of this Agreement have been duly authorized and this Agreement is a valid and legally binding obligation of the parties in accordance with its terms.  Neither this Agreement, nor any interest therein, shall be assigned by Customer without prior written consent of NCM.  Any attempt to assign any of the rights, duties, or obligations without such consent is void.

 

13. NOTICES.  All notices required by this Agreement will be in writing, addressed to Customer and NCM respectively.

 

14. WAIVER.  The toleration or sufferance of a breach or default under this Agreement shall not be construed to be a waiver of such breach or default.

 

15. TERMINATION BY CUSTOMER. In addition, Customer shall have the right to terminate this License Agreement for any reason whatsoever upon providing a thirty (30) day written notice to NCM.  Upon NCM’s receipt of written notice from Customer, this License Agreement will terminate thirty (30) days from the date of such receipt (“Termination Date”).  The Customer hereby acknowledges that there is no transfer of ownership at any time with the execution of this License Agreement and that the ownership of the proprietary information of NCM shall always be with NCM.

 

16. ENTIRE AGREEMENT.  This Agreement contains the entire agreement between Customer and NCM with respect to the subject matter of this Agreement.  All prior arrangements or understandings are superseded by this Agreement.  This Agreement may be modified or amended only in writing signed by each of the parties.  The terms of this Agreement shall extend to and inure to the benefit of and be binding on all respective successors and assigns of Customer and NCM.

 

17. PURCHASED DATA. Customer may purchase one or more discrete pieces of data via the Application. Use of any such purchased data is strictly limited to use by Customer, and its employees for internal use only. No publication, distribution, public performance or public display of any purchased data, either in their original condition or after the preparation of a derivative work by Customer based upon the original purchased data is permitted.  Customer shall not remove or alter the copyright notice or other indication of the proprietary nature of the purchased data in any way.

LICENSE:

You may:

1. Access the Application via the internet. Store your data on the Application.  Use the Application to access, manipulate and consult your data, and the reports and materials available on the Application.
2. Follow the terms and conditions of this agreement, as modified from time to time.

You May Not:

1. Transfer your rights under this agreement to any third party without the express written consent of NCM.
2. Attempt to reverse engineer, improperly publish, or improperly distribute any NCM Materials

 

Third Party Software

Customer understands that access to the Application as contemplated by this Agreement may require system software owned by a third party and that, in certain instances, it may be necessary for Customer to enter into separate license agreements with certain third parties in order to use such system software or into a separate agreement with NCM.  Customer agrees to execute such separate license agreement or sublicense agreement upon presentation thereof for execution.  For those third-party system software products for which no separate license agreement or sublicense agreement is required, NCM hereby grants to Customer, and Customer hereby accepts from NCM, a nonexclusive, nontransferable and non-assignable sublicense to use the Sublicensed Software on the terms and conditions set forth in the license granted to NCM with respect to such Sublicensed Software by the third party.  EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN ANY SEPARATE SUBLICENSE AGREEMENT BETWEEN NCM AND CUSTOMER, NCM MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS, WITH RESPECT TO ANY SUBLICENSED SOFTWARE FURNISHED TO CUSTOMER HEREUNDER.

ADDENDUM A
SOFTWARE SUPPORT SERVICES

Software Support Services for licensed software programs are provided to Customer subject to the provisions of the appended License Agreement and to the following provisions:

1. LICENSED PROGRAMS Software Support Services apply to licensed software programs.

2. FEES The fee for Software Support Services is as follows:

Flat Rates Express and/or Flat Rates Premium, $0.00 per month
JobTRACK® System, $0.00 per month
Profit Planner Express and/or Profit Planner Premium, $0.00 per month

All fees are payable within Fifteen (15) days of the date of invoice. The above monthly fees may be increased by NCM on December 31st, the operating year-end of NCM, or on the anniversary date of the License Agreement by giving to Customer written notice of the increase thirty (30) days prior to the anniversary date.

3. TERM As long as the appended License Agreement is in effect between NCM and the Customer, NCM will provide all software support services to the Customer for NCM programs. The Customer will not be allowed to contract for any other software support services for NCM programs other than those provided exclusively by NCM.

4. SOFTWARE SUPPORT SERVICES Subject to the limitations in Paragraph 6, the following services are provided:

A toll-free consultation hotline and email address for software and application inquiries, between the hours of 8:30 a.m. and 5:00 p.m., C.T. on NCM workdays. Additional documentation and/or follow-up will be provided as applicable.

5. PROTECTION OF LICENSED PROGRAMS Customer recognizes and agrees that all documents and materials provided to Customer by NCM under the Software Support Services furnished hereunder are part of the licensed software program as defined in the appended License Agreement, shall remain the property of NCM and shall be held in confidence by Customer in accordance with the provisions of Paragraph 5 of the appended License Agreement.

6. LIMITATIONS The following limitations apply to the provision of Software Support Services:

A. Software Support Services are conditioned upon licensed software programs being at NCM current revision level and used on appropriate equipment under normal operating conditions.

B. Any Software Support Services are provided under the condition that the defect occurs in an unaltered licensed software program and Customer must provide NCM with documented evidence of the defect; and

C. NCM will not be liable for delays in delivery of Support Services hereunder due to any cause beyond its reasonable control, including without limitation, acts of God, acts of Customer, strikes or other labor disturbances.

D. If the appended License Agreement is terminated by either of the parties and subsequently the Customer requests to become, and does become a licensee of NCM subsequent to such termination, the Customer will be required to execute the current Software Support Services Agreement in effect at the time of re-licensure and pay the then current support service rates.

7. DEFAULT Software Support Services are terminable by NCM upon thirty (30) days’ notice for failure of Customer to pay charges when due or upon termination of the appended License Agreement.