TEAM OCTAVE MASTER PRODUCT AND SERVICES AGREEMENT
This TEAM OCTAVE PRODUCT AND SERVICES AGREEMENT (this “Agreement”) is entered as of Date of Initial Sign update (the “Effective Date”) by and between TEAM OCTAVE DIV. OF REALITY RESEARCH LLC / AND OR ASSIGNS. , a Utah Company ( “ Octave ” ), and You (“Customer”). In this Agreement, we shall outline products and service Octave provide and will be listed and referred to as the Apple, Android and Web Applications Ecosystem (“App”) ( In consideration of the mutual covenants and agreements set forth herein, the receipt and sufficiency of which is hereby acknowledged by the parties, Octave and Customer hereby agree as follows:
1. Agreement to Provide Products and Services know as the app. Subject to the terms and conditions of this Agreement, Octave hereby agrees to provide the products and services as designated on Octave Invoice and Customer payments required thereunder are current. All products and services provided to Customer by Octave shall be subject to the terms, conditions, and limitations of this Agreement. In connection with this Agreement, Customer must purchase from Octave and use only Octave provided and approved products and services.
2. Ownership and License Limitations. Octave retains all ownership and intellectual property rights to Octave Functionality, Licensed Pattern, and those parts of the applications and services related thereto that originate from Octave’s App and its licensors.
You may not:
(i) Assign, sublicense, distribute or otherwise transfer the rights under this Agreement to third parties;
(ii) Make Licensed Pattern or documentation provided by Octave or the Supplier available to any third party, unless expressly permitted in writing by Octave or the Supplier;
(iii) Modify, copy, disassemble, reverse engineer or decompile Licensed Pattern or any software or hardware related to Licensed Pattern or Digital Pen, unless expressly permitted by applicable law without the possibility of contractual waiver; or (iv) Remove any proprietary, copyright, trade secret or warning legend from Licensed Pattern, Software, hardware or documentation provided by Octave or the Supplier.
3. Customer Content Ownership. Client retains all ownership rights to its
educational content, imagery, marketing material, and data client inputs into App and client portal.
4. Deliverability of app. Octave will do it very best to have clients App and in the Stores within 30 days of delivery of COMPLETED “Online Intake Forms”. Customer Intake form gives Octave all the necessary information to create the app and get the app published in the Apple and Google stores. The packet will be delivered to the client through the client's online Portal within two business days of clients set up fees have been paid.
5. Definitions of Licenses and Products and Services. Octave provides a single level of licensing of Software. Service Maintenance Purchase of Renewable license comes with software maintenance and support for the same time period purchased for a renewable license. To such purchasers, Octave grants Customer support and Software and App maintenance. Octave will respond to and resolve Customer interface and operational questions, errors, problems, escalation, software bugs, and service failures related to the Octave software. Maintenance & support does not extend to services or Software that is not part of the Octave software, such as hardware configuration problems or problems with third-party software. Support hours are as determined by Octave from time to time. Octave only supports and provides maintenance for current versions of the Software and Software for which available updates have been installed. Octave maintains and hosts the app on its servers. Octave also will maintain and keep up-to-date all critical Apple, and Android updates that affect the applications as longs and the Customer's license is paid and current. Octave reserves the right to charge for responding to support calls or inquiries relating to non-current versions of the Software.
6. Portal Access. For the use of the Octave hosted Internet website and related functionality (the “Portal”), the Customer shall maintain a persistent Internet connection at the rate of 1.5 mbps.
7. Certain Terms Related to Services. As reasonably required, in order to adapt to evolving technical standards, Octave may change any technical requirements at any time upon written notice. Subject to the terms and conditions of this Agreement, Octave hereby grants to Customer a personal, nonexclusive and nontransferable right to use any Octave software and third-party software embedded in any services for which Customer subscribes during the Term, but only as is required in order to use such services and only for Customer’s internal use at or from Customer’s site(s) identified in this Agreement.
8. Apple and Google Store. Octave does NOT warrant that client's content or services will be approved in the Apple and Google Stores. Clients Content is the responsibility of the client. In the event clients, content is not accepted; there will be no refunds or partial refunds given. Octave is a software service provider and does not represent Google or Apple's interest in any way.
9. Charges & Fees.
(a) Products and Services. In exchange for the Products and Services, the Customer shall pay the respective fees and licensing fees set forth on this page. Octave reserves the right to increase services fees annually upon 30 days written notice.
10. Contract Termination. This contact maybe canceled by either party by giving 30 days written notice before the next billing date. If Customer fails to pay Octave any amount due under this Agreement within thirty business days after the due date thereof, Octave may immediately terminate this contract or lock access in part or in full to the client portal until fees are made current. This Agreement shall automatically renew at the end of the Term of Agreement period unless either Party provides to the other Party notice of non-renewal at least 30 days prior to the Initial Expiration Date or any anniversary thereof.
11. Ownership & Use of Customer Data. All data of any kind produced by Customer using any Octave services, stored by Customer on any servers hosted by Octave or transmitted by or at the direction of Customer through the Portal or using any Services shall be referred to as “Customer Data.” As between Octave and Customer, Customer Data is the exclusive property of Customer and shall be and remain the property of Customer subject to the terms and conditions of this Agreement.
12. Intellectual Property Rights. All right, title and interest in and to Octave intellectual property are the exclusive property of Octave. Except as expressly provided in, and subject to the terms and conditions of this Agreement, Customer shall not have any right to use, or any right, title, or interest in or to, any Octave intellectual property. Any rights to use any Octave intellectual property shall terminate upon termination of this Agreement.
13. Liability Limits. OCTAVE SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF THE PRODUCTS OR THEIR USE, OR ARISING OUT OF OR IN CONNECTION WITH OCTAVES FAILURE TO PERFORM ITS OBLIGATIONS HEREUNDER, INCLUDING BUT NOT LIMITED TO ANY LOSS OF BUSINESS, PROFITS, OR GOODWILL, EVEN IF OCTAVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OCTAVES AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR THE PRODUCTS PROVIDED HEREUNDER (REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY) EXCEED THE AMOUNT OF LIABILITY INSURANCE COVERAGE MAINTAINED BY OCTAVE. THIS AGREEMENT
PROVIDES THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER AND ALLOCATES THE RISKS BETWEEN PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OF THE PRODUCTS.
14. Force Majeure. Neither party shall be liable for any default or delay in, and shall be excused from, the performance of its obligations under this Agreement (other than performance relating to payments to be made hereunder), and the time of any performance shall be extended, to the extent reasonably necessary under the circumstances, if and to the extent such default or delay is caused, directly or indirectly, in whole or in part, as a result of acts or omissions by fire, flood, earthquake, terrorism, outbreak, elements of nature or acts of God, acts of any governmental authority, court order, strikes, lockouts or work stoppages, any outbreak or escalation of hostilities, war, riots, civil disorders, rebellions or revolutions in any country, or any other similar cause beyond the reasonable control of such party (an “Event of Force Majeure”).
15. General Provisions.
(a) Choice of Law; Jurisdiction, Venue, and Waiver of Jury Trial. This Agreement and performance under it shall be governed by and construed in accordance with the laws of the State of Utah, United States excluding any applicable principles of conflicts of laws that would require the application of laws of another jurisdiction. Each of the parties submits to the exclusive jurisdiction of any state or federal court sitting in Salt Lake City, Utah, in any action or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and determined in any such court. Each of the parties waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety, or other security that might be required of the other party with respect thereto. Each of the parties hereby waives any right to a trial by jury in connection with any action arising under or with respect to this Agreement. Customer agrees that any award, judgment or judicial order entered in the courts above may be enforced fully in any other court of competent jurisdiction. (b) Assignment. This Agreement may not be assigned or otherwise transferred by a party, whether by operation of law or otherwise, without the other party’s prior written consent, provided that the foregoing restriction shall not apply to assignments made pursuant to a merger,
consolidation, conversion, reorganization, sale or exchange of equity, sale of all or substantially all of a party’s assets or a similar or related transaction. (c) Attorneys Fees. If either party is in default of the terms or conditions of this Agreement, and legal action is initiated, or suit be entered as a result of such default, the prevailing party shall, subject to the limitations set forth in paragraph 11 herein, be entitled to recover all costs incurred as a result of such default, including reasonable attorneys fees, expenses and court costs through trial, appeal and to final dispositions. (d) Entire Agreement. The provisions of this Agreement supersede all prior agreements between Octave and Customer with respect to the subject matter herein. This Agreement, together with any Octave Invoice, contains the entire Agreement between Octave and Customer concerning the subject matter hereof and any prior agreements, promises, or negotiations (whether written or oral) not expressly set forth in any of the foregoing are of no force or effect.
