END-USER LICENSE AGREEMENT
This End-User License Agreement ("EULA" or “Agreement”) is a contract between the party accepting this EULA ("Client") and IMERZA, LLC, a Florida limited liability company ("IMERZA”), for access to or use of the Licensed Materials (as defined herein).
1. Background. IMERZA has developed a proprietary software platform for use in the sales and leasing of real estate projects (“Application” or “IMERZA Platform”). The IMERZA Platform utilizes project specific content including architectural plans and drawings, images, maps and videos, to produce digital brochures, area maps and virtualized walkthroughs of a project on connected displays that may be viewed on a screen or a virtual reality head mounted display. Client is the owner, developer or marketer of the real estate project identified in the Proposal executed by Client which incorporates the terms of this EULA (the “Proposal”), that Client has entered into with IMERZA (“Project”). Pursuant to the terms of the Proposal, IMERZA has agreed to develop a customized simulation of the Project and other marketing materials using the Application and Client Materials (as defined herein) and to grant a license to Client use the same in connection the marketing of the Project.
2. Definitions. The following capitalized terms shall have the meanings indicated:
“Client Materials” means exterior and interior renditions, floor plans, elevations and other architectural plans, interior design concepts and drawings, maps, photos, aerial video recordings, brochures, advertising and marketing materials, and other documents related to the Project, in each case that may be used in the customization of the Application for the Project. Client Materials may be in electronic or printed form.
“Licensed Materials” means: (i) the customized version of the Application prepared by IMERZA using the Client Materials; and (ii) the Pilot App.
“Pilot App” means the iOS mobile device application provided by IMERZA for use on an iPad to control the operation of the Application running on a separate information technology platform.
3.1 Grant for Licensed Materials. Subject to the terms and conditions of this EULA, IMERZA grants to Client a paid up, non-exclusive, non-transferrable, non-sublicenseable right and license to use: (i) the Application on a designated computer system owned or used by Client, and (ii) the Pilot App on one or more iPad mobile devices used by employees or agents of Client, in each case for the sole purpose of marketing the sale or lease of units in the Project. Client may exercise its rights under this EULA through authorized employees or agents, provided Client shall be responsible for their compliance with the terms and conditions of this EULA. The Licensed Materials may be delivered to Client via download or other means selected by IMERZA. Notwithstanding the foregoing, any right and/or license to use the Licensed Materials may be transferred to any affiliate of Client, to any successor in interest of the Project or the Client, and/or to any purchaser of more than 30% of the Project from Client.
3.2 IMERZA hereby represents and warrants to Client that it is the sole owner of the Licensed Materials and it has the authority to grant Client the license set forth in this Agreement.
3.3 Grant for Client Materials. Client grants to IMERZA the right to: (i) copy, use and process the Client Materials in connection with the customization of the Application for the Project; (ii) modify, adapt and create derivative works of the Client Materials for those purposes, and (iii) copy, use and process any of the foregoing with the Application. IMERZA shall own all rights in any such modification, adaptation or derivative work, subject to Client’s retained rights in the underlying work and Client Materials.
4. Limitations and Restrictions. Apart from the license expressly granted herein, no license or other right is granted by IMERZA to Client under this Agreement, either directly or by implication, estoppel, or otherwise (including, but not limited to, the right to prepare derivative works). Client shall have no right or access to the source code of the Licensed Materials. Client acknowledges that the Licensed Materials contain trade secrets of IMERZA or its suppliers or licensors, including but not limited to the specific internal design and structure of the Application and Pilot App and associated interface information. Client shall only use the Licensed Materials in connection with the marketing the sale or lease of units in the Project. Client shall have no right to, and specifically agrees not to: (i) transfer, assign or sublicense its license rights to any other person or entity (except for transfers to Client’s affiliates which is specifically permitted, as well as any other transfers contemplated in Section 3.1 above), and Client acknowledges that any attempted transfer, assignment, sublicense or use shall be void; (ii) copy, duplicate, translate, modify, adapt, decompile, decrypt, disassemble or reverse engineer, or otherwise reduce the Licensed Materials to human-readable form; (iii) make error corrections to or otherwise adapt the Licensed Materials or create derivative works based upon the Licensed Materials, or permit third parties to do the same; (iv) move, alter, remove or obscure any patent, copyright or trademark notice appearing on or in the Licensed Materials or any materials produced using the Licensed Materials; (v) use the Licensed Materials on any computer system not conforming to the specifications and requirements established by IMERZA or in combination with any other computer system or software not provided or authorized in writing IMERZA; or (vi) use or permit the Licensed Materials to be used to perform services for third parties, whether on a service bureau, software as a service, time sharing basis or other basis.
5. Ownership and Unauthorized Use.
5.1 Ownership. This is a limited license to use the Licensed Materials. IMERZA, its licensors or vendors shall retain sole and exclusive ownership of all copyright, patent, trademark, trade secret and other intellectual property rights in the Licensed Materials. For the sake of clarity, this EULA shall not grant IMERZA any ownership right in the Client Materials.
5.2 Unauthorized Use. Client shall promptly notify IMERZA of any unauthorized use, reproduction or distribution of the Licensed Materials of which it becomes aware. In the event of any unauthorized use, reproduction or distribution by any of Client’ employees, agents or representatives, Client shall use commercially reasonable efforts to terminate any such unauthorized use and to retrieve any unauthorized copy of the Licensed Materials in the possession or control of the person or entity engaging in such unauthorized use. IMERZA may, at its option and expense, participate in any such proceeding and, in such an event, Client shall provide such authority, information and assistance related to such proceeding as IMERZA may reasonably request.
6. Maintenance and Support. Except as provided otherwise in the Proposal, IMERZA shall have no obligation to modify, update, upgrade, enhance, provide bug fixes or otherwise maintain or support the Licensed Materials, or to provide training or technical assistance to Client with respect to its use of the Licensed Materials. Any such improvement provided by IMERZA to Client will be deemed to be Licensed Materials and subject to the terms and conditions of this EULA.
7. Term, Termination and Suspension.
7.1 Term. This EULA and the license granted herein shall remain effective until terminated.
7.2 Termination. Client may terminate this EULA at any time by giving written notice to IMERZA. Client’s rights under this EULA will terminate immediately without notice from IMERZA upon any breach by Client of any material obligation under this EULA, including non-payment of the fee. IMERZA may only terminate for cause and will provide written notice and right to cure 30 days prior to termination of service.
7.3 Consequences of Termination. Upon expiration or termination of this EULA, the license granted herein shall immediately terminate, and Client shall cease using the Licensed Materials, and delete its copy of the Application from the hard drive of the computer on which it is loaded, and delete all copies of the Pilot App from the iPad mobile devices on which it is loaded. All confidentiality obligations of the parties, all restrictions and limitations imposed on Client with respect to the Licensed Materials, all limitations of liability, disclaimers, restrictions of warranty and indemnification obligations shall survive the expiration or termination of this EULA.
7.4 Temporary Suspension of License. Client acknowledges that the Application contains a feature that allows IMERZA to monitor Client’s use of the Application and compliance with terms of the Proposal and this EULA. Client further acknowledges that, in lieu of termination of the license under Section 7.2(ii) for non-payment or otherwise, IMERZA may suspend Client’s use of the Application until such time Client cures the breach or otherwise provides adequate assurances to IMERZA, as determined by IMERZA in its sole discretion, that the breach will be cured promptly.
8.1 Definition. “Confidential Information” shall mean this EULA and all information related to the businesses of the parties, including, without limitation, the Client Materials, Licensed Materials and technologies related thereto or embodied therein, design and coding, interfaces, technical drawings, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical plans, the identity of the parties arrangements with any person or entity, financial information of the parties including pricing and cost information, customer lists, customer profiles, project plans, design documents, product strategies and pricing data, research, advertising plans, leads and sources of supply, development activities, new products or plans for new products, marketing plans and materials, and any other information that is or should be known to the receiving party to be the confidential and/or proprietary information of the disclosing party, whether it is presented in oral, printed, written, graphic or photographic or other tangible form (including information received, stored or transmitted electronically) even though specific designation as Confidential Information has not been made.
8.2 Exclusions. Confidential Information does not include information which (i) is already in the receiving party’s possession at the time of disclosure to the receiving party, (ii) is or becomes part of public knowledge other than as a result of any action of the receiving party, (iii) is obtained by the receiving party from an unrelated third party without a duty of confidentiality, to the knowledge of the receiving party, or (iv) is independently developed by the receiving party without access to the disclosing party’s information.
8.2A Non-Use and Non-Disclosure. The receiving party shall maintain Confidential Information of the disclosing party in confidence and use at least the same degree of care it uses to protect its own proprietary information of a similar nature or sensitivity, but no less than reasonable care under the circumstances. The receiving party shall not use Confidential Information of the disclosing party for any purpose other than to perform its obligations under this EULA. The receiving party shall not disclose Confidential Information of the disclosing party to any third parties except: (i) to those third parties who have a need to know such information and who have executed a confidentiality agreement in favor of the receiving party that is substantially similar to the requirements of this Section; (ii) to employees, officers, directors, lawyers, accountants, consultants or similar service providers of the receiving party or any affiliate thereof who have a need to know such information and who are under a general duty of confidentiality; and (iii) as otherwise permitted hereunder.
8.3 Permitted Exceptions. A receiving party may, however, disclose the Confidential Information of the other party if such disclosure is required under laws, rules, regulations, court order, subpoena, or other administrative process of any government entity with jurisdiction over the receiving party; provided, however, that, to the extend permitted by law, such party shall promptly notify the other party and allow such party an opportunity to prevent the disclosure of such Confidential Information.
8.4 Final Disposition. Upon termination or expiration of this EULA for any reason whatsoever, each party shall at the written request of the other party promptly destroy or deliver to the other party, at the other party’s direction, all Confidential Information belonging to the other party that are in its possession, custody, or control. Notwithstanding the foregoing, if such destruction is (i) not practicable with respect solely to electronic data (given the limitation on the permanent destruction of electronic data located on information technology systems), (ii) not permitted by law or (iii) subject to a bona fide internal document retention policy, then it shall be maintained by the receiving party in strict confidence in accordance with the terms of this Agreement.
9.1 Limited Warranty. For a period of 120 days from the date of delivery of the Application to Client (“Warranty Period”), IMERZA warrants that the Licensed Materials will perform substantially in accordance with the specifications and descriptions accompanying the Licensed Materials (“Documentation”). If Client identifies any defect in the Licensed Materials, it shall promptly notify IMERZA but in all events no later than five days following the end of the Warranty Period. Client’s exclusive remedy and IMERZA’s sole obligation for any failure of the Licensed Materials to perform in all material respects in accordance with the Documentation will be for IMERZA to use its commercially reasonable efforts to correct such defect. This warranty does not apply to any defect resulting from misuse, casualty loss, use or combination of the Licensed Materials with any products, goods, services or other items furnished by anyone other than IMERZA (unless recommended by IMERZA in writing), any modification not made by or for IMERZA, or any use of the Licensed Materials by Client in violation of the terms of this EULA.
9.2 WARRANTY DISCLAIMERS AND LIMITATIONS. EXCEPT FOR THE WARRANTY EXPRESSLY SET FORTH IN SECTION 9.1, THE LICENSED MATERIALS ARE PROVIDED “AS IS”, “WITH ALL FAULTS” AND WITHOUT WARRANTY OF ANY KIND AND IMERZA AND ITS LICENSORS MAKE NO WARRANTIES WHETHER EXPRESSED, IMPLIED OR STATUTORY REGARDING OR RELATING TO THE LICENSED MATERIALS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IMERZA EXPRESSLY DISCLAIMS ALL WARRANTIES, INDEMNITIES AND CONDITIONS, ORAL OR WRITTEN, EXPRESS OR IMPLIED, WHETHER ARISING UNDER CUSTOM, COMMON LAW OR STATUTE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FURTHER, IMERZA DOES NOT WARRANT THAT THE LICENSED MATERIALS WILL OPERATE WITHOUT ERROR OR INTERRUPTION, THAT IT WILL IDENTIFY OR FILTER OUT ALL KNOWN SPAM, VIRUSES OR OTHER PROGRAMMING ROUTINES THAT MIGHT CAUSE DAMAGE TO CLIENT, THAT IT WILL PRODUCE ANY PARTICULAR RESULT, MEET CLIENT’S REQUIREMENTS OR OTHERWISE SATISFY ALL OF CLIENT’S NEEDS, OR THAT IT WILL OPERATE WITH ALL COMBINATIONS OF HARDWARE AND SOFTWARE USED BY CLIENT.
9.3 LIABILITY LIMITATIONS AND DISCLAIMERS. IN ADDITION TO THE LIMITATION OF LIABILITY IN THE PROPOSAL, TO THE FULLEST EXTENT PERMITTED BY LAW, EITHER PARTY WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, OR DAMAGES FOR LOST SALES, LOST REVENUE, LOST PROFITS, LOST SOFTWARE OR DATA OR THE COST OF PROCURING REPLACEMENT PRODUCTS OR SERVICES, HOWEVER CAUSED. THE LIMITATIONS REFERRED TO IN THIS PARAGRAPH WILL APPLY TO ALL ACTS AND OMISSIONS OF IMERZA, REGARDLESS OF THE FORM OR BASIS OF ANY LEGAL ACTION, WHETHER STATUTE, CONTRACT, TORT OR OTHERWISE. IF NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IMERZA IS HELD TO BE LIABLE TO CLIENT FOR ANY REASON, IMERZA’S ENTIRE AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS EULA OR ITS SUBJECT MATTER WILL NOT IN ANY EVENT EXCEED THE TOTAL AMOUNT OF THE FEE SET FORTH IN THE PROPOSAL TO WHICH THIS AGREEMENT APPLIES. NOTWITHSTANDING THE FOREGOING, THIS LIMITATION SHALL NOT APPLY IN CONNECTION WITH A BREACH BY IMERZA OF THE REPRESENTATION SET FORTH IN SECTION 3.2 ABOVE.
9.4 ACKNOWLEDGEMENTS. CLIENT AGREES THAT THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE A REASONABLE ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF THE REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
10. Indemnification. Client shall indemnify, defend and hold IMERZA and its directors, officers, employees, agents and independent contractors (“Indemnitees”) harmless from and against, any and all suits, actions and proceedings, claims, liabilities, losses, damages, expenses (including attorneys’ fees) and costs (collectively, “Claims”), made against an Indemnitee by a third party arising out of or related to (i) the Client Materials provided to IMERZA by Client, including IMERZA use of the Client Materials to create a customized version of the Application for Client or the processing of Client Materials by the Application; (ii) and Client’s use of the Licensed Materials.
10.1 IMERZA shall indemnify, defend and hold Client and its directors, officers, employees, agents and independent contractors (“Indemnitees”) harmless from and against, any and all suits, actions and proceedings, claims, liabilities, losses, damages, expenses (including attorneys’ fees) and costs (collectively, “Claims”), made against an Indemnitee by a third party arising out of or related to (i) the use of Licensed Materials.
11.1 Assignment. Client or its Affiliates may not assign this Agreement, in whole or in part, without the prior written consent of IMERZA, provided however, that Client shall have the right to assign the license to Client’s affiliates, any successor in interest of the Project or the Client, and/or any purchaser of more than 30% of the Project from Client.. Any assignment in violation of this Section 11.1 shall be void ab initio and of no effect. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by the parties and their respective successors and assigns. Client may assign rights to use any images, videos, or derivative content produced from Licensed Materials without written notice to IMERZA.
11.2 Governing Law, Disputes. This Agreement will be governed by the laws of the State of Florida, without regard to its conflict of laws principles. This Agreement shall not be governed by the 1980 UN Convention on Contracts for the International Sale of Goods. All suits hereunder will be brought solely in Federal Court for the Central District of Florida located in St. Petersburg, Florida, or if that court lacks subject matter jurisdiction, in any Florida State Court located in Sarasota County. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any such action or proceeding in any of such courts based upon any alleged lack of personal jurisdiction, improper venue, forum non-conveniens or any similar claim or defense. If there is any breach of this EULA by IMERZA, Client’s remedies are expressly limited to those in this Agreement. The parties acknowledges and agrees that a breach of Section 3, Section 4 or Section 8 of this EULA would cause irreparable injury to the non breaching Party for which such non breaching partyshall be entitled to seek injunctive relief. In any judicial proceeding between IMERZA and Client arising out of or relating to this Agreement, the prevailing party shall be entitled to recover all reasonable expenses incurred as a result of the proceeding, including reasonable attorneys’ fees.
11.3 Severability. If any provision(s) of this EULA is held to be illegal, unenforceable, or in conflict with any other law or regulation applicable to this Agreement, the validity an enforceability of the remaining provisions will not be affected, and this EULA will be interpreted to reflect the original intent of the parties.
11.4 Non-waiver. Any failure of a party to insist upon or enforce performance by the other party of any of the provisions of this EULA or to exercise any rights or remedies under this EULA will not be interpreted or construed as a waiver or relinquishment of the party’s right to assert or rely upon such provision, right or remedy in that or any other instance.
11.5 Entire Agreement, Changes. This EULA and the Proposal completely and exclusively states the entire agreement of the parties regarding the subject matter hereof, and it supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. This EULA and the Proposalmay be amended, but only in writing by authorized representatives of the parties.
11.6 Interpretation. The section and subsection headings used in this EULA are intended for reference purposes only and shall not affect the interpretation or construction of any provision of this EULA. The term “including” or “include,” as used in this Agreement, shall mean “including, but not limited to.” Each party acknowledges that this EULA shall not be construed against or in favor of either party.
11.7 Binding Effect and Remedies. This EULA is binding on IMERZA and Client, and both IMERZA and Client will remain fully responsible for all its obligations under this EULA, and for any breach of such obligations, unless or until they are satisfied by Client or IMERZA or waived by Client or IMERZA, as applicable. If there is any breach of this EULA by either party, such party's legal remedies are limited to those expressly provided for in this EULA.
11.8 Notices. All notices, requests, demands, or other communications under this EULA will be in writing and will be deemed given if delivered personally, upon delivery by delivered by an overnight courier service with confirmation of delivery, or five (5) days after mailing to the correct address. The designated persons to receive notices and their addresses are set forth on the Proposal and may be changed by giving notice to the other party.
11.9 Export Control. Client acknowledges that the Licensed Materials may be subject to export controls imposed by the US Export Administration Act of 1979 and the US Department of Commerce (“US Export Regulations”). Client will not knowingly export, re-export or transship the Licensed Materials or disclose any technical information provided by IMERZA where this would be in contravention with US Export Regulations. Client acknowledges that in certain circumstances remote access to the Licensed Materials may be considered a re-export of the Licensed Materials.
11.10 Order of Precedence. In the event of any conflict between the provisions of this EULA or the Proposal, and the provisions of any purchase order or other document delivered by Client, the provisions of this EULA shall prevail.