LICENSE AGREEMENT
THIS LICENSE AGREEMENT (“Agreement”) is made and entered into with Gather Innovations Inc. (“Gather”) its affiliates, sub-contractors or assigns, with a mailing address of: 1020 North Hickory Ave, Meridian, ID 83642 (“Gather”). Company and Gather are also referred to as “party” and collectively as the “parties.”
WHEREAS, Gather has created software for the purposes of funeral case management platform including but not limited to family collaboration, ; and
WHEREAS, Gather desires to license the software to Company; and
WHEREAS, Company desires to obtain a license to use the software owned by Gather for its internal business purposes, subject to the terms and conditions of this Agreement.
NOW THEREFORE, Subject to and in consideration of the mutual promises, conditions, and agreements contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.1 License Grant. Subject to and conditioned on Company’s payment of its monthly licensing fees and compliance with all other terms and conditions of this Agreement, Gather hereby grants to Company a non-exclusive, non-sublicensable, and non-transferable enterprise license for all users to use the Software solely to assist in planning or pre-planning at-need, pre-need or eminent funerals during the Term. Subject to Section 1.2 below, Company is granted an enterprise license to the Software and, accordingly, Company’s license rights shall extend (a) to all of the designated site(s) and (b) Company’s employees and customers associated with (a) above.
1.2 Scope of Licensed Access and Use. Company may use the cloud-based version of the software located at https://my.gather.app. Any copy of the Software or the contents of the Software made by Company: (a) will remain the exclusive property of Gather; (b) be subject to the terms and conditions of this Agreement; and (c) must include all copyright or other Intellectual Property Rights notices contained in the original.
1.3 Security Measures. The Software may contain technological measures designed to prevent unauthorized or illegal use of the Software. Company acknowledges and agrees that: (a) Gather may use these and other lawful measures to verify Company's compliance with the terms of this Agreement and enforce Gather's rights, including all Intellectual Property Rights, in and to the Software; (b) Gather may deny any individual access to and/or use of the Software if Gather, in its reasonable discretion, believes that person’s use of the Software would violate any provision of this Agreement, regardless of whether that person is an authorized user of the Software; and (c) Gather may collect, maintain, process and use diagnostic, technical, usage and related information, including information about Company's computers, systems and software, for the purpose of improving the performance of the Software or developing Maintenance Releases. This information will be treated in accordance with Gather's privacy policy, as amended from time to time.
1.4 License Restrictions. Except as this Agreement expressly permits Company shall not, and shall not permit any other person to:
1. copy the Software, in whole or in part;
2. modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of any Software, even if derivative work is not in the form of software;
3. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software to any third party;
4. reverse engineer, disassemble, decompile, decode, or adapt the Software, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part;
5. bypass or breach any security device or protection used for or contained in the Software;
6. remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, terms of the warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks, or serial numbers on or relating to any copy of the Software;
7. use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person, or that violates any applicable Law;
8. use the Software for purposes of: (i) benchmarking or competitive analysis of the Software; (ii) developing, using or providing a competing software product or service; or (iii) any other purpose that is to Licensor's detriment or commercial disadvantage;
9. use the Software in or in connection with the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Software could lead to personal injury or severe physical or property damage; or
10. use (i) the Software other than for use in connection with funeral planning or in any manner or for any purpose or application not expressly permitted by this Agreement or (ii) any open source code in any manner or for any purpose or application not expressly permitted by its license.
2. Payment
For the upcoming year, Company shall pay Gather the agreed upon amount per month for the services furnished by Gather via automated ACH or debit/credit card transaction. Company shall have unlimited use of the software during this period, without restriction to the number of cases that can be created by Company on the Gather platform. Company may cancel service at any time. Gather will automatically charge Company on the same day each month which will correspond to the date of initial signup. Gather also reserves the right to modify or add additional features, in its sole discretion, as Gather improves its product offering. Company may choose whether or not to add such additional features. Company shall have 5 (five) days from delivery and receipt of each invoice to notify Company in writing of a bona fide dispute asserted in good faith as to one or more of the invoiced items. The Parties shall resolve any such dispute within (30) days of the date on which written notice of the bona fide dispute was given.
3. REMEDIES FOR NON-PERFORMANCE
If Gather has not received payment within 30 (thirty) days from the date of an invoice, Gather shall be entitled to claim and pursue all available legal and equitable remedies against Company to recover the invoiced amounts, and shall be entitled to recover from Gather all invoiced amounts, plus Gather’s collection and litigation costs (including attorney fees), plus interest on all amounts owed at the highest rate allowed by law.
4. WARRANTY
All services rendered by Gather hereunder shall be performed in accordance with industry standards. Gather’s software does not infringe on any third-party rights. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, GATHER PROVIDES NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, REGARDING OR RELATING TO SERVICES OR THE DELIVERABLES PROVIDED HEREUNDER OR IN CONNECTION HEREWITH. GATHER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE, WHETHER MADE BY GATHER EMPLOYEES OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT SHALL NOT BE DEEMED TO BE A WARRANTY BY GATHER FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF GATHER WHATSOEVER. Additionally, Company agrees that Gather will not be liable for lost profits, damages arising from products use, consequential damages, and/or liquidated damages.
5. LIMITATION OF LIABILITY.
Regardless of the form of action (whether in contract, tort, breach of warranty or otherwise), and except as otherwise expressly provided herein, except for Gather’s obligations pursuant to Paragraph 4, in no event (i) SHALL GATHER’S MAXIMUM LIABILTY FOR ALL DAMAGES EXCEED ACTUAL, DIRECT DAMAGES CAUSED BY THE SPECIFIC SERVICE OR DELIVERABLES COMPLAINED OF, OR (ii) SHALL GATHER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, SPECIAL OR INDIRECT DAMAGES (INCLUDING BUT NOT LIMITED TO LOST BUSINESS PROFITS AND LOSS, DAMAGE OR DESTRUCTION OF DATA) EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME, OR (iii) SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, OR INCIDENTAL DAMAGES ARISING OUT THIS AGREEMENT OR OUT OF THE USE OR INABILITY TO USE SUCH SOFTWARE (GATHER SOFTWARE APPLICATIONS AND TOOLS) INCLUDING, BUT NOT LIMITED TO, LOST PROFITS AND LOST DATA, EVEN IN THE EVENT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS, OR (iv) SHALL Gather's MAXIMUM LIABILITY FOR ALL DAMAGES RELATED TO THE SOFTWARE, SERVICE OR DELIVERABLES PURCHASED HEREUNDER OR OTHERWISE ARISING IN CONNECTION HEREWITH EXCEED THE TOTAL AMOUNT PAID TO GATHER PURSUANT TO THIS AGREEMENT. Some states do not allow the exclusion or limitation of incidental or consequential damages under certain circumstances and the above exclusion or limitation may not apply in those states.
6. RELATIONSHIP OF PARTIES
Gather shall be deemed an independent supplier with respect to any and all work performed under this Agreement and any purchase order. It is the express understanding and intention of the parties that no relationship of master and servant or principal and agent shall exist between Gather and the employees, agents, or representatives of Company or between Company and the employees, agents, or representatives of Gather, by virtue of this Agreement. Each Party shall be responsible for all its own costs related to services contemplated under this Agreement, including without limitation travel expenses (e.g., airfare, hotel, car rental, meals, etc.). Neither Party shall have the responsibility to arrange for or reimburse the other for any such costs.
7. COMPLIANCE WITH LAWS
Gather and Company each agree to comply with all laws, rules, and regulations applicable to this Agreement or the performance of work hereunder. If either party is required to pay any fine or penalty resulting from the other party’s violation of such laws, rules or regulations, the party who committed the direct violation shall immediately reimburse the other for any such payment. The Parties further agree that they will not engage in human trafficking in any way or exploit workers by means of threat, force, coercion, abduction, or fraud. Company further acknowledges that the use of forced or compulsory labor - slave, prison, indentured, bonded, or otherwise – is explicitly prohibited.
8. FORCE MAJEURE.
Except for the duty to make payments hereunder when due, and the indemnification provisions under this Agreement, neither Gather nor Company shall be responsible to the other for any delay, damage, or failure caused by or occasioned by a Force Majeure Event. As used in this Agreement, “Force Majeure Event” shall mean: Any act of God, act of nature or the elements, terrorism, insurrection, revolution or civil strife, piracy, civil war or hostile action, labor strikes, acts of public enemies, federal or state laws, rules and regulations of any governmental authorities having jurisdiction over the premises, inability to procure material, equipment, or necessary labor in the open market, acute and unusual labor, material, or equipment shortages, or any other causes (except financial) beyond the control of either party. Delays due to any of the above causes shall not be deemed to be a breach of or failure to perform under this Agreement. Neither Gather nor Company shall be required against its will to adjust any labor or other similar dispute except in accordance with applicable law.
9. INTELLECTUAL PROPERTY
a. Gather’s Intellectual Property. Gather retains all right, title and interest in and to the products, services and software licensed to Company pursuant to this Agreement, including, without limitation, all developments, improvements and modifications thereto (if any) created by or for Company during the course of providing any services to Company hereunder.
b. “Gather Pre-Existing IP” means Intellectual Property owned or controlled by Gather prior to Gather’s dealings with Company (including all Intellectual Property related to the products and services contemplated under this Agreement).
c. “Company’s Pre-Existing IP” means Intellectual Property owned or controlled by Company prior to the date of Gather’s dealings with Company.
d. “New IP” means Intellectual Property created at any time after Gather commenced business dealings with Company that relates to any product or service contemplated under this Agreement
e. License to Company. Gather hereby grants to Company a non-exclusive, non-sublicensable license to use all Gather Pre-Existing IP and all New IP, solely to the extent necessary for Company to utilize the Software under this Agreement.
f. License to Gather. Company hereby grants Gather and its affiliates a non-exclusive, royalty-free license, in all of Company’s Pre-Existing IP for Gather to facilitate Company’s use of the Software under this Agreement.
g. No Other Rights. Each party acknowledges and agrees that, except as expressly set forth in this Agreement, no rights or licenses, express, implied or otherwise, covering or relating to any Intellectual Property, are granted to either party by the other party.
h. Data. Company shall retain exclusive ownership of the customer data and/or materials Company or its customers uploads onto the Software as part of the funeral planning process. Company grants Gather a non-exclusive, non-sublicensable license to use such data to the extent necessary to fulfill Gather’s obligations under this Agreement.
i. Survival. The terms of this Section 10 shall survive the expiration or termination of this Agreement and shall be binding upon and inure to the benefit of the successors and assigns of the parties.
10. TAXES AND CLAIMS.
a. Company agrees to pay all taxes, licenses, and fees levied or assessed on Company incident to the performance of this Agreement by any governmental agency and unemployment compensation insurance, old age benefits, social security, or any other taxes upon the wages of Company, its agents, employees, and representatives.
b. Gather agrees to pay all taxes, licenses, and fees levied or assessed on Gather incident to the performance of this Agreement by any governmental agency and unemployment compensation insurance, old age benefits, social security, or any other taxes upon the wages of Gather, its agents, employees, and representatives.
11. INDEMNITY
a. Company agrees to protect, defend, indemnify and hold harmless Gather, its officers, directors, employees or their invitees, and any working interest owner or outside party for whom Gather is obligated to perform services, from and against all claims, demands, and causes of action of every kind and character without limit arising out of Company ’s or its subcontractor’s performance or nonperformance of this Agreement, except for such as may be caused by the negligence of Gather, its agents or employees. Company’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by Gather. If it is judicially determined that the monetary limits of the insurance required hereunder or of the indemnities voluntarily assumed in this Paragraph (which Company and Gather hereby agree will be supported either by available liability insurance under which the insurer has no right of subrogation against the indemnitees, or voluntarily self-insured, in part or whole) exceed the maximum limits permitted under applicable law, it is agreed that said insurance requirements or indemnities shall automatically be amended to conform to the maximum monetary limits permitted under such law. Company’s agreement to defend and indemnify Gather includes, but is not limited to, any third party claim against Gather that arises due to a claim that any product or service provided by Company to Gather infringes any valid copyright, trademark, patent, or involves the misappropriation of a trade secret.
b. Gather agrees to protect, defend, indemnify and hold harmless Company , its officers, directors, employees or their invitees, and any working interest owner or outside party for whom Company is obligated to perform services, from and against all claims, demands, and causes of action of every kind and character without limit arising out of Gather’s or its subcontractors’ performance or nonperformance of this Agreement, except for such as may be caused by the negligence of Company , its agents or employees. Gather’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by Company pursuant to Section 6 above. If it is judicially determined that the monetary limits of insurance required hereunder or of the indemnities voluntarily assumed under this Section (which Company and Gather hereby agree will be supported either by available liability insurance, under which the insurer has no right of subrogation against the indemnitees, or voluntarily self-insured, in part or whole) exceed the maximum limits permitted under applicable law, it is agreed that said insurance requirements or indemnities shall automatically be amended to conform to the maximum monetary limits permitted under such law.
12. TERM; CANCELLATION
This Agreement shall remain in effect for one (1) year from the date it was signed and shall automatically renew for consecutive one (1) year terms unless Company cancels ongoing subscription. Should Company cancel its subscription with Gather, Gather may remove any Company-specific programming, white labeling or branding from Gather’s site.
13. NOTICE
Unless otherwise specified in this Agreement or any purchase order, any notice required under this Agreement shall be in writing, addressed as follows:
If to Company: Company Address. If to Gather: Gather Innovations Inc., Attn: Legal, zach@gather.app
14. CONFIDENTIALITY
The parties shall hold the terms of this Agreement and any purchase order issued hereunder confidential and shall only disclose the same as required by law. Information obtained by Company in the conduct of work under this Agreement shall be considered confidential and shall not be divulged by Company or its employees, agents or subcontractors, to any person, firm, or corporation other than Gather’s designated representatives.
15. NO WAIVER
No waiver by either party of any of the terms, provisions or conditions of this Agreement shall be effective unless the waiver is in writing and signed by an authorized representative of both parties.
16. ASSIGNMENT
This agreement cannot be assigned by Company to another party without the express written consent of Gather.
17. SEVERABILITY
In the event any provision of this Agreement is inconsistent with or contrary to any applicable law, rule, or regulation, the provision shall be deemed to be modified to the extent required to comply with the law, rule, or regulation, and this Agreement, as so modified, shall continue in full force and effect.
18. JURISDICTION; VENUE; WAIVER OF JURY TRIAL
This Agreement shall be governed, construed, and interpreted in accordance with the laws of the state of Idaho without regard to any choice of law provisions. Any claim or lawsuit arising from or relating to this Agreement shall be filed and maintained in a court of competent jurisdiction in Ada County, Idaho. To the extent allowed by law, the parties each waive their right to a jury trial for any matter arising from or relating to this Agreement.
19. ATTORNEY’S FEES
In the event of any dispute or litigation between the Parties, each Party will bear its own costs and attorneys’ fees, regardless of which Party, if either of them, is deemed the prevailing party.
20. OTHER CONTRACTS
This Agreement shall supersede any other written Agreement between the parties. In the event that the terms of this Agreement conflict with or are contrary to the term of any other Agreement, contract, purchase order, or any other agreement, written or oral between the parties, the terms of this Agreement shall control. However, any other written agreements between the parties shall be fully effective and enforceable where they do not conflict with the terms of this Agreement.
21. NON-SOLICITATION
For a period of one (1) year from the date of the termination of this Agreement, Company will not in any manner solicit, induce or encourage, or cause any Related Party to solicit, induce or encourage any employees of Gather to terminate their employment with Gather unless that person had ceased to be an employee of Gather for at least six (6) months. Related Party shall mean any entity related to or affiliated with Company or any of Company ’s trustees, directors, officers, shareholders, employees, agents or representatives, including without limitation independent Contractors, attorneys, financial advisers, brokers, analysts and independent accountants, and any or all of them, to the extent such entities or persons receive Confidential Information.
22. SURVIVABILITY
The terms of Sections with the Heading “Warranty,” “Non-Disclosure,” “Intellectual Property,” “Indemnity,” “Notice,” “Confidentiality,” “Jurisdiction; Venue; Waiver of Jury Trial,” “Other Contracts,” and “Non Solicitation,” shall survive the expiration or termination of this Agreement, and shall be binding upon and inure to the benefit of the successors and assigns of the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date of initial agreement by Company. Both parties agree that a single original of this Agreement will be executed.