Software License Agreement - United States
Esports & Online Gaming Association
This SOFTWARE LICENSE AGREEMENT (this “Agreement”) is entered into between ESPORTS & ONLINE GAMING ASSOCIATION, INC. (“ESOGA”), an Oregon corporation located at 16200 SW PACIFIC HWY, STE H503, TIGARD, OR 97224, and Customer’s organization (“Customer”) as an authorized User of the ESOGA System (defined below).
WHEREAS, ESOGA provides, among other things, online database, event management solutions, event and gameplay templates, email marketing and communication services, staff and User management, web and hosting services, video game league management services, and payment processing services including (but not limited to) credit card, debit card, ACH, and international processing.
WHEREAS, ESOGA intends to combine, deploy or integrate certain ESOGA IP Assets, as reasonably determined by ESOGA, to make available to Customer certain functionality and/or solutions in an online, object-code only system configured by or to be configured by ESOGA (collectively “ESOGA System”) through which ESOGA will deliver certain services, as more specifically described in a Pricing Agreement (as defined below).
WHEREAS, Customer desires to license the ESOGA System for use according to the terms and conditions herein.
WHEREAS, the ESOGA System is solely owned by ESOGA. The ESOGA System is licensed, not sold. Customer hereby agrees the ESOGA System, as well as the ESOGA IP Assets, are protected by U.S. and international copyright laws and treaties, as well as other intellectual property laws and treaties.
In consideration of the foregoing and the mutual promises set forth below, the parties agree as follows:
1. Grant of License
1.1 Pricing Agreement
ESOGA and Customer will delineate the services to be provided to Customer (the “Services”) in one or more separate pricing agreements (each a “Pricing Agreement”) which, among other things, shall provide that Customer will pay the fees described in such Pricing Agreement. The date of execution of said Pricing Agreement will become the Effective Date of the relationship between the parties and this Agreement shall be incorporated by reference into such Pricing Agreement as if fully set forth therein. If Customer is using the Services on behalf of an Organization, “Customer” as used herein, includes the Organization. As used herein “Organization” means a national, state or local governing body, league, club, team, school, organization or other business entity including but not limited to those who host and/or conduct traditional and electronic sporting events or tournaments. The terms of this Agreement apply to all visitors, Users, and others who access the Service through or in connection with an Organization (the “Users”).
Customer agrees to use the ESOGA System solely to receive the Services of ESOGA and to provide access to Customer’s members or Users of such Services as authorized by ESOGA and subject to the Terms of Service https://www.esoga.gg/terms-of-service displayed on the company websites of ESOGA, which Terms of Service are hereby incorporated by reference. Except as required to use the ESOGA System in an authorized manner, Customer warrants that it will not modify, publish, retransmit, participate in the transfer or sale of, create derivative works of, distribute, sublicense, perform or display the ESOGA System or any intellectual property or other material owned, licensed or developed by ESOGA, including but not limited to any software, source code, object code, databases, information, communications, graphics or sounds. Customer shall not under any circumstances: copy the ESOGA System; sublicense, distribute, modify, adapt, translate, reverse engineer, decompile, disassemble, or prepare derivative works based on the ESOGA System; use or allow use of the ESOGA System after the termination or expiration of this Agreement, except pursuant to a separate valid license or during a Transition Period (as defined below); allow others to use, copy, or access the ESOGA System in connection with a service bureau, application service provider, public computer bulletin board, shareware or timeshare process, or any similar business or service; access, use, or disclose the ESOGA System source code; remove, obscure or alter any copyright or other proprietary rights notices included in or affixed to the ESOGA System; sell, license, disclose, or distribute any product designed or intended for use with the ESOGA System; publish or disclose the results of any benchmark tests relating to the ESOGA System; or use the ESOGA System in applications or systems when failure of the ESOGA System to perform could reasonably be expected to result in serious physical injury, loss of life, or material damage to property.
1.4 Ownership of System and Intellectual Property
Customer acknowledges and agrees that no title to the intellectual property in the ESOGA System, including any and all proprietary trade secret information and information about business processes, is transferred to Customer under the terms of this Agreement. All right, title, and interest in and to the ESOGA System is the sole property of ESOGA, including any modifications thereto. Other than the limited license explicitly set forth in this Agreement, no interest in or rights or licenses to the ESOGA System are granted to the Customer, and no interest in or rights or licenses to the ESOGA System shall inure in or accrue to the Customer, whether by implication, estoppel, or otherwise. All rights of any kind in the ESOGA System that are not expressly granted in this Agreement are entirely and exclusively reserved to and by ESOGA, and its successors and assigns. ESOGA reserves the right, without notice, (i) to revoke Customer’s or any of its users (“Users”) User identity (“User Identity”) (Username together with a password); (ii) to require Customer or any of its Users to change its User Identity; or (iii) to deny, limit or terminate access to the Service or any portion thereof, whether for security purposes, for violation of the Agreement, including the ESOGA’ Policies, or for any other reason.
1.5 Ownership of Data
As between the parties, Customer shall own all data and content that is placed by Customer and Customer’s members and/or Users on the ESOGA System (including any text, images, or other content created by or for Customer through the ESOGA System). This information (to the extent stored in the ESOGA System by Customer) shall include participant and registration information, membership information, statistics regarding Customer’s site and usage as reported to Customer by ESOGA, credit card information and other commerce-related information provided by Customer, its members and Users (“Data”). Data collected in the ESOGA System shall be subject to the ESOGA Policies. In addition to any terms or policies that the Customer may have, Customer agrees that ESOGA may, in its sole discretion, require any Users of the ESOGA System, including Customer’s members and/or Users, to expressly agree to the ESOGA Policies during the member/User signup process or any time thereafter as a condition of accessing the ESOGA system and receiving the Services. Customer hereby authorizes ESOGA to use the Data in any manner permitted in the ESOGA Policies and may contact or communicate with Customer’s members and Users, including without limitation, regarding their individual User accounts, their login credentials, updates to the ESOGA Policies, or their access to and use of the Services or other features, services and products relevant to their use of the ESOGA System.
1.6 Permitted ESOGA System Uses
ESOGA supports the maintenance of the software product and services to Customers through event fees and other service fees collected from the use of the ESOGA System. Accordingly, Customer agrees to use esports management and online services during the normal course of business when using the ESOGA System and the Customer agrees they will not use any other esports management provider during the Term.
1.7 Organizational Decisions
1.8 Use of Data
Notwithstanding anything contained herein to the contrary, ESOGA will have the right to use any data collected or managed by ESOGA through the Services (e.g., player registration and e-commerce data) (collectively, the “User Data”), for advertising and marketing purposes and such other purposes as may be permitted by law and the ESOGA Policies (collectively, the “Data Usage Rights”). If User Data collected or managed through the Services is provided on behalf of a third party, Customer represents, warrants, and covenants that Customer has notified such third parties of this Agreement and obtained all required consents. In addition, Customer grants ESOGA a limited, fully-paid, royalty-free, worldwide, non-exclusive, irrevocable, right and license to use, reproduce, modify, adapt, enhance, improve, create derivative works of, edit, translate, distribute, and otherwise display the User Data: (i) for Customer’s benefit; (ii) for the purpose of performing the Services; and (iii) as permitted hereunder. ESOGA disclaims all warranties as to the availability of the User Data. ESOGA shall have no liability or responsibility in the event that the User Data is deleted or removed from the Services. Customer represents and warrants that all User Data that is provided by Customer or on Customer’s behalf or uploaded, stored, processed, contained included and/or integrated into the Services by Customer or on Customer’s behalf has been collected in accordance with applicable laws and with Customer’s full consent. Customer hereby consents to ESOGA’s use of the User Data as provided herein. If any of the User Data uploaded, stored, processed, contained included and/or integrated in the Services relates to children under the age of 13 (“Child Users”), Customer represents and warrants that prior to Customer providing such User Data to ESOGA, Customer, as the parent or guardian of such Child User, consent to: (i) send or store such Child User’s User Data in the Services, and (ii) to permit ESOGA to exercise its rights hereunder and under the Agreements with respect to such Child User. If Customer is not the parent or guardian of such Child User, Customer represents and warrants that Customer has obtained verifiable consent of the parent or guardian of such Child User to use the Child User’s User Data as provided herein. Customers shall provide copies of such consents to ESOGA upon request. In the event any such Child User (or the parent or guardian thereof) elects to withdraw such consent, Customer shall promptly notify ESOGA and ESOGA shall remove the Child User’s User Data from the Services. If such express consent is not provided Customer shall not send or store such Child Users’ User Data in the Services; and if Customer previously sent or stored Child Users’ User Data without such express consent, Customer shall immediately notify ESOGA and immediately remove any applicable User Data from the Services until Customer obtains such required express consent.
1.9 Communications Costs of Customer
Customer is solely responsible for all of Customer’s internet, communication, device and other equipment, and any other costs associated with Customer’s use of the Service. Use of the Service may impact Customer’s cellular data usage or other data plan.
2. Payment Processing and Other Fees
2.1 License Fees
In consideration for its license to use the ESOGA System, Customer agrees to pay certain fees related to Customer’s use of or access to the Services, including but not limited to registration processing fees, charge amounts, annual fees, one-time fixed fees, ongoing and credit card processing fees, and/or other applicable fees at the rates in effect when such fees are incurred (collectively, “Fees”). The rates for these Fees are outlined in the Pricing Agreement. Customer is responsible for paying all applicable taxes for the Services. Customer further acknowledges and agrees that Customer may be required to pay Fees related to Customer’s use of or access to the Services subject to any Additional Terms applicable to such services, features, or purchases. Customer acknowledges that ESOGA owns all rights and interest in any collected Fees regardless of the actual costs incurred by ESOGA for providing the Services.
2.2 Payment Processing
It is the intent of both ESOGA and Customer that a material element of this Agreement is to include/use ESOGA’s credit & debit card processing services (“Processing Services”) as part of, or in combination with, the ESOGA System when and where it is available. Therefore, ESOGA and Customer specifically agree that all Processing Services associated with Customer, including but not limited to, all related processing from websites, mobile apps, related club, league, team payments (even if white-labeled sites or apps through the Customer), and any P2P payments, will be handled solely by ESOGA. ESOGA is not a merchant bank. In assisting Users in collecting payments, ESOGA is acting solely as a payment facilitator and/or processor depending on the specific service(s) provided.
2.3 Transactions Initiated by Individuals
If Customer makes a registration or other payment to an Organization via the Service, Customer agrees that such transaction is between Customer and that Organization, notwithstanding ESOGA rights to impose Fees on such transactions; therefore any refund requests, including without limitation unauthorized or incorrect charges, must be made directly to the Organization. Any Fees charged by ESOGA for the Services are non-refundable. Customer agrees to contact ESOGA in the event of a dispute before initiating a chargeback or return with Customer’s bank. In the event Customer makes any chargeback claim, ESOGA may contact Customer and the Organization with regard to the claim. Occasionally, there are technical and human errors that prevent emails from being delivered properly. It is the Customer's responsibility to ensure they have received their invoice. The lack of receipt of an invoice by Customer is not a valid reason for lack of timely payment. ESOGA reserves the right at any time and at ESOGA’s sole discretion to increase or decrease Customers Initial Credit Limit. Any past due amounts are subject to a late charge in the amount of one and one-half percent (1.5%) per month compounded monthly, or the maximum rate allowable by law, whichever is greater. Customers will also pay all reasonable attorneys’ fees and other costs of collection if any are incurred by ESOGA. Customer agrees that the Package expires twelve (12) months after the original due date of the invoice.
All payments will be processed via the Services and will be held by ESOGA (unless Customer has set up Customer’s own third party merchant). ESOGA will transfer registration fees collected by ESOGA (net of charges due to ESOGA, including all applicable Fees and taxes or other governmental charges) to the designated Organization account through Automated Clearing House (“ACH”) transfer. ESOGA will debit against Customer’s designated Organization account all applicable Fees, taxes, or other governmental charges, and/or any applicable return or chargeback fees incurred by ESOGA arising from the processing and/or resolution of any return or chargeback claim relating to Customer’s Organization. All Fees debited by ESOGA are non-refundable. Customer is responsible for presenting or re-presenting to the credit card issuer any challenge Customer may wish to bring to any return or chargeback claim. Customer agrees at Customer’s own expense to assist ESOGA when ESOGA is requested to investigate any transactions processed through the Service that are the subject of a return or chargeback claim; however, ESOGA shall have no obligation to conduct any such investigation. In the event of a return or chargeback claim, Customer is responsible for collecting any unpaid fees or charges directly from the Individual User initiating the chargeback.
2.5 Invoiced Fees; Chargebacks.
All invoiced fees are due within 30 days of the invoice date. All late payments will accrue interest at a monthly rate of one percent (1.5%) or such lower amount as may be required by applicable law. ESOGA assumes no responsibility to resolve disputes regarding refund requests or return or chargeback claims, or to present or re-present any challenge to any return or chargeback claim. Customer is responsible for presenting or re-presenting to the credit card issuer any challenge Customer may wish to bring to any return or chargeback claim. In the event of a return or chargeback claim, Customer is responsible for collecting any unpaid fees or charges directly from the individual initiating the return or chargeback. At Customer’s sole discretion, Customer may elect to refund the Individual’s User charge amounts, processing, and other fees through the Service, which will be debited against a subsequent Customer ACH transfer.
2.6 Subscription Services
Any Fees to register to access subscription-based Services shall be paid through third-party payment systems, app-stores utilized by ESOGA, or otherwise through the Services. All Fees paid for the Services are non-refundable, regardless of whether or not Customer actually uses the Services. Customer is responsible for paying all applicable taxes for the Services and any other costs incurred in connection with the use of or access to the Services. If Customer registers for a recurring subscription, Customer will continue to be charged for the Services until Customer cancels the Services. Customers may cancel recurring subscriptions at any time by emailing firstname.lastname@example.org and shall include the name and email address associated with Customer’s account. Some cancellations may require Customer to contact the third-party app-store where Customer registered for the recurring subscription. Cancellation of Customer’s subscription will not release Customer from Customer’s responsibility to pay all charges incurred prior to cancellation. ESOGA reserves the right to issue refunds or credits in its sole discretion. If ESOGA issues a refund or credit, it is under no obligation to issue the same or similar refund in the future. All questions and requests related to the Services shall be submitted to email@example.com
2.7 Processing Partners
Based on the stated processing needs of the Customer, the ESOGA Services chosen by the Customer and listed in the Pricing Agreement, the geographical location and currency the Customer accepts, ESOGA will place the Customer with one of the approved processing partners of ESOGA (“Processing Partners”) when and where processing is available. Once a Processing Partner is chosen, Customer hereby agrees to provide the necessary information required by that Processing Partner to set-up the merchant account.
2.8 Modifications; Custom Development
ESOGA retains the right, in its sole discretion, to enhance, modify or alter the Service at any time (“ESOGA Modifications”). It shall be in ESOGA’s sole discretion to determine which ESOGA Modifications Customer receives.
If Customer wants to add additional features beyond the features included in the ESOGA System or have ESOGA provide specific design, development, or implementation services, Customer agrees to pay costs and fees for such features and services upon receipt of invoice from ESOGA. ESOGA will present Customer a separate statement of work confirming the details of the work, the estimated timeline to implement, and the cost associated with the project (“SOW”). ESOGA will proceed once both ESOGA and Customer agree to and execute the SOW. Once the SOW is acknowledged, it will be deemed to be an amendment to this Agreement.
3. System Support
Customer shall receive email support within the posted hours found on the ESOGA website.
4. Term, Termination and Transition
The term of this Agreement shall be for the period set forth in the Pricing Agreement and shall commence as of the Effective Date (“Initial Term”). Following the Initial Term, this Agreement shall automatically renew, for successive twelve (12) month periods (each a “Renewal Term”), unless: (i) either Party provides the other with written notice of its intent not to renew at least thirty (30) days prior to the expiration of the Initial Term or any Renewal Term; or (ii) earlier terminated pursuant to the terms of this Agreement. Renewal Terms may be subject to reasonable cumulative annual fee increases of a minimum of five percent (5%) unless expressly modified in the Pricing Agreement or otherwise superseded by applicable contractual pricing arrangements between ESOGA or other governing body in so far as such arrangements relate to specific service items for which Customer is an intended beneficiary.
Either party shall have the right to terminate this Agreement prior to the end of the Term upon a material breach of this Agreement by the other party. The non-breaching party shall provide written notice to the breaching party setting forth the basis for such party’s claim of material breach, setting forth in reasonable detail the act(s) or omission(s) or circumstances giving rise to such claim, and stating the desire of the non-breaching party to terminate if the breaching party fails to cure such breach. The breaching party shall have thirty (30) days in which to cure the breach; or commence to cure and present the non-breaching party with an acceptable remediation and cure plan if the breach is curable but cannot be cured within such thirty (30) day time period, If the breach is not cured within thirty (30) days or if the remediation and cure plan presented by the breaching party is rejected by the non-breaching party, then this Agreement shall terminate. Notwithstanding the opportunity to cure provided in the previous sentences, if the material breach is of such a nature that it may not be cured, regardless of the action taken by the breaching party or the passage of time, then the non-breaching party may terminate this Agreement effective immediately upon written notice. In addition, ESOGA may terminate this Agreement upon written notice for Customer’s violation of Section 1 (“Grant of License”) or failure to pay the Fees as set forth in the Pricing Agreement.
4.3 Effect of Termination
Termination of this Agreement for any reason (except the sole material breach by ESOGA) shall not allow Customer a refund of Fees and Customer agrees to pay all Fees due and owing to ESOGA up to and until the date Customer ceases all use of the ESOGA System. Upon termination of this Agreement for any reason, Customer shall make no further use of the ESOGA System whatsoever. Customer acknowledges that upon disconnection from the ESOGA System, Customer shall no longer be able to use the features of the ESOGA System. All Customer Content shall be accessible by Customer notwithstanding termination of this Agreement for a period of thirty (30) days following termination of this Agreement for archiving by Customer or conversion to another system by Customer.
4.4 Transition Period
If this Agreement expires pursuant to Section 4.1 or if Customer terminates this agreement due to the sole material breach by ESOGA pursuant to Section 4.2, Customer may request that ESOGA continue to provide the ESOGA System for up to three (3) months (the “Transitional Period”). Customer agrees to continue to pay any and all Fees associated with the ESOGA System that are in place immediately prior to the Transition Period.
4.5 Acceleration of Payments
Any expiration or termination of this Agreement shall not release Customer from its duty to pay any amount which may then be, or with the passage of time will become, owing to ESOGA. Furthermore, immediately upon termination of this Agreement, Customer shall pay to ESOGA any and all amounts that are or with the passage of time will become due and payable.
5. Confidential Information
ESOGA and Customer acknowledge that they may be exposed to confidential information relating to the other party’s business in connection with the Services, the use of the ESOGA System, and the performance of this Agreement. Such confidential information may include but is not limited to business methods and processes, products, customers, technology, and financial status to the extent that the same constitutes the non-public proprietary information or trade secrets of a disclosing party. Customer expressly acknowledges that the ESOGA System is the confidential and proprietary intellectual property and trade secret information of ESOGA. The parties agree that, for the Term and subject to the provisions of this Agreement and for a period of ten (10) years from the termination or expiration of this Agreement, neither party will disclose the confidential information of the other to third parties without the prior written consent of the disclosing party.
Customer agrees to indemnify and hold harmless ESOGA from any third party claims: (i) based on Customer’s or its members’/Users’ use of the System, including any Data provided by Customer or its member/Users; and (ii) based on or alleging any violation of Customer’s representations and warranties under Section 7, provided that ESOGA, as applicable, notifies Customer promptly in writing of the claim (provided further that any failure by ESOGA to provide such prompt notice shall only relieve Customer of its obligations under this Section to the extent that it has actually been prejudiced by such failure), gives Customer reasonable assistance in the defense and allows Customer to control the defense or settlement. Customer may not settle any such third-party claim without the prior written consent of ESOGA.
7. Representations and Warranties
7.1 By Customer
Customer represents and warrants the following: (i) all information or content provided by Customer or its members/Users to ESOGA and/or displayed on the Customer Site is true and accurate in all material respects and does not infringe upon the intellectual property and/or proprietary rights of any third parties; (ii) Customer has received all necessary permission from third parties to post all content on Customer System, Site, and associated Services; (iii) Customer is in compliance in all respects with all applicable laws and regulations; (iv) Customer shall comply with all terms and conditions of this Agreement; (v) Customer shall at all times comply with all applicable laws and regulations related to the collection, use, and storage of personal information, and (vi) Customer has the authority to represent and enter into this agreement on behalf of its members/Users and access their Data without restriction.
7.2 “AS IS” Warranty
The Service is controlled and operated from facilities in the United States. ESOGA makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. Customer may not use the Service if Customer is a resident of a country embargoed by the United States, or is a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
THE SYSTEM AND ITS CONTENT IS PROVIDED “AS IS” AND CUSTOMER USES THE ESOGA SYSTEM AT ITS OWN RISK. FURTHERMORE, SHOULD THE CUSTOMER REQUEST THAT ESOGA IMPORT CUSTOMER DATA OR USES THE ESOGA SYSTEM TO IMPORT CUSTOMER DATA INTO THE ESOGA SYSTEM, CUSTOMER ASSUMES ALL RESPONSIBILITY FOR PROVIDING THE DATA IN A FORMAT THAT MEETS THE IMPORT REQUIREMENTS OF THE ESOGA SYSTEM AND PROVIDES THE FORMAT ACCORDING TO THE CUSTOMER NEEDS. ESOGA SHALL NOT BE RESPONSIBLE FOR ANY ERRORS IN DATA, THE QUALITY OF THE DATA, OR CORRECTIONS TO IMPORTED DATA IN THE SYSTEM. CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT THE ESOGA SYSTEM MAY NOT PERFORM OR MEET THE CUSTOMER’S OR END USER’S EXPECTATIONS. ESOGA DOES NOT WARRANT THAT THE USE OF THE ESOGA SYSTEM WILL BE UNINTERRUPTED OR ERROR-FREE. ESOGA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. Limitation of Liability
IN NO EVENT SHALL ESOGA BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS AND/OR LOSS OF BUSINESS, ARISING OUT OF OR IN ANY WAY RELATED TO (I) THIS AGREEMENT; (II) THE PERFORMANCE OF THIS AGREEMENT; (III) THE USE OF ANY PRODUCT, SERVICE OR ESOGA SYSTEM PROVIDED UNDER THIS AGREEMENT; AND/OR (IV) AN ALLEGED BREACH OF THIS AGREEMENT, WHETHER OR NOT THAT PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ESOGA, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO CUSTOMER FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT DIRECTLY PAID BY CUSTOMER TO ESOGA HEREUNDER WITHIN THE PREVIOUS SIX MONTHS OR $100.00, WHICHEVER IS GREATER. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF ESOGA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO CERTAIN INDIVIDUALS. THIS AGREEMENT GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
The following provisions shall survive termination of this Agreement for any reason: Section 1.3 (“Restrictions”); Section 1.4 (“Ownership of System and Intellectual Property”); Section 1.5 (“Ownership of Data”); Section 4.3 (“Effect of Termination”); Section 5 (“Confidential Information”); Section 6 (“Indemnification”); Section 7 (“Representations and Warranties”); Section 8 (“Limitation of Liability”); Section 9 (“Survival”) and Section 10 (“General”).
The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
In the event of invalidity of any provision of this Agreement, the parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement.
10.3 No Agency
Nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties.
This Agreement and any rights and responsibilities hereunder may not be assigned or delegated by Customer, including by action of law, without the prior express written consent of ESOGA but may be assigned by ESOGA without restriction. Any assignment or delegation in violation of this Section will be void and of no effect.
10.5 Injunctive and Other Equitable Relief
The Customer agrees that the remedy at law for any breach or threatened breach of this Agreement by the Customer would, by its nature, be inadequate and that in that event ESOGA shall be entitled, in addition to damages, to a restraining order, temporary or permanent injunctive relief, specific performance, and other appropriate equitable relief, without showing or providing that any monetary damage has been sustained.
10.6 Commercial Transaction
If this Agreement is between ESOGA and an Organization, Organization hereby certifies that this Agreement is a commercial transaction between two corporations or business entities and Organization’s use of the Service is for commercial purposes.
10.7 Notification Procedures and Changes to the Agreement
ESOGA may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to Customer via email notice, written or hard copy notice, or through posting of such notice on ESOGA’s website, as determined by ESOGA in its sole discretion. ESOGA reserves the right to determine the form and means of providing notifications to Customers and Users, provided that Customers may opt-out of certain means of notification as described in this Agreement. ESOGA is not responsible for any automatic filtering Customer or Customer’s network provider may apply to email notifications ESOGA sends to the email address Customer provides to ESOGA. ESOGA may, in its sole discretion, modify or update this Agreement from time to time; Customer should review this page periodically. When ESOGA changes the Agreement in a material manner, ESOGA will update the ‘last modified’ date at the bottom of this page. Customer’s continued use of the Service after any such change constitutes Customer’s acceptance of the new terms of the License Agreement. If Customer does not agree to any of these terms or any future License Agreement, do not use or access (or continue to access) the Service.
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
10.8.1 ESOGA and Customer agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.
10.8.2 In the event of a dispute, claim, or controversy arising out of or in connection with Customer’s access to, and/or use of the Services, and/or the provision of content, services, and/or technology on or through the Services, ESOGA or Customer must give the other notice of the dispute, claim, or controversy which notice will include a brief written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the dispute, claim, or controversy, and the relief requested. Customer must send any such notice to ESOGA by email to firstname.lastname@example.org AND by U.S. Mail to, ESOGA, 16200 SW PACIFIC HWY, STE H503, TIGARD, OR 97224 Attn: Legal. To the extent that ESOGA has Customer’s contact information, ESOGA will send any such notice to Customer by U.S. Mail or to Customer’s email address. Customer and ESOGA will attempt to resolve any dispute, claim, or controversy through informal negotiation within sixty (60) days from the date that any notice of dispute, claim, or controversy is sent. Customer and ESOGA shall use reasonable, good faith, efforts to settle any dispute, claim, or controversy through consultation and good faith negotiations. After said sixty(60) days, Customer or ESOGA may resort to the other alternatives described in this Section 10.8 Notwithstanding the foregoing, the notice and sixty (60)-day negotiation period required by this Section 10.8 shall not apply, however, to disputes, claims, or controversies concerning patents, copyrights, moral rights, trademarks, trade secrets, and claims of piracy or unauthorized use of the Service.
10.8.3 Except as otherwise specifically set forth below, any dispute, claim, or controversy of any kind between ESOGA and Customer arising under these Terms or in connection with Customer’s access to, and/or use of the Service, and/or the provision of content, services, and/or technology on or through the Service, if unresolved through informal discussions within sixty (60) days of receipt of notice, shall be resolved by binding arbitration to be held in the state in which Customer resides, or if Customer is an Organization, domiciled. Notwithstanding the foregoing, nothing in this Section shall be deemed as preventing ESOGA from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of ESOGA’s data security, Intellectual Property Rights or other proprietary rights.
10.8.4 For residents outside the United States, arbitration shall be initiated in Portland, Oregon, or nearby surrounding area up to 10 miles and Customer and ESOGA agree to submit to the personal jurisdiction of any state or federal court in Oregon to compel arbitration, stay of proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
10.8.5 Customer and ESOGA each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided herein) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com.
10.8.6 ESOGA shall bear the cost of any arbitration filing fees and arbitration fees up to Five Hundred Dollars ($500.00). Customer is responsible for all other additional costs that Customer may incur in the arbitration including, but not limited to attorneys’ fees and expert witness costs unless ESOGA is otherwise specifically required to pay such fees under applicable law. The decision of the arbitrator will be in writing and binding and conclusive on ESOGA and Customer, and judgment to enforce the decision may be entered by any court of competent jurisdiction. Customer and ESOGA agree that dispositive motions, including without limitation, motions to dismiss, and motions for summary judgment will be allowed in the arbitration. The arbitrator must follow these Terms and can award the same damages and relief as a court, including injunctive or other equitable relief and attorneys’ fees. Notwithstanding the foregoing, Customer and ESOGA agree not to seek any attorneys’ fees and expert witness costs unless the arbitrator finds that a claim or defense was frivolous or asserted for an improper purpose, provided that if Customer is using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Customer and ESOGA understand that, absent this mandatory arbitration provision, Customer and ESOGA would have the right to sue in court and have a jury trial. Customer and ESOGA further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
10.8.7 If Customer’s claim is solely for monetary relief of Ten Thousand Dollars ($10,000) or less, and does not include a request for any type of equitable remedy, Customer may choose whether the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the JAMS Rules.
10.8.8 Customer may choose to pursue Customer’s claim in small claims court in Washington County, Oregon where jurisdiction and venue over ESOGA and Customer otherwise qualifies for such small claims court and where Customer’s claim does not include a request for any type of equitable relief.
10.8.9 Customer has the right to opt-out and not be bound by these arbitration provisions by sending a written notice of Customer’s decision to opt-out to the following address: ESOGA, 16200 SW PACIFIC HWY, STE H503, TIGARD, OR 97224 Attn: Legal, AND, the following Email address: email@example.com. The notice must be sent within the later of thirty (30) days of Customer’s first use of the Services or within thirty (30) days of changes to this Section being announced on the Services, otherwise Customer shall be bound to arbitrate any disputes, claims, or controversies in accordance with the terms of this Section 10.8. If Customer opts-out of these arbitration provisions, ESOGA also will not be bound by them. If Customer does not affirmatively elect to opt-out as described above, Customer’s use of the Services will be deemed to be Customer’s irrevocable acceptance of these Terms and any changes/updates to this Section 10.8 or otherwise.
10.8.10 If any clause within these arbitration provisions is found to be illegal or unenforceable, that specific clause will be severed from these arbitration provisions, and the remainder of the arbitration provisions will be given full force and effect. In the event some or all of these arbitration provisions are determined to be unenforceable for any reason, or if a claim, dispute, or controversy is brought that is found by a court to be excluded from the scope of these arbitration provisions, Customer and ESOGA agree to waive, to the fullest extent allowed by law, any trial by jury.
10.8.11 The terms of these arbitration provisions will apply to any claims asserted by you against ESOGA and its affiliates to the extent that any such claims arise out of Customer’s access to, and/or use of the ESOGA System and associated Services, and/or the provision of content, services, and/or technology on or through the Service.
10.9 Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
10.9.1 Customer and ESOGA agree that Customer and ESOGA will resolve any disputes, claims, or controversies on an individual basis and that any claims brought under these Terms in connection with the Services will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. Customer and ESOGA further agree that Customer and ESOGA shall not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third party arising under these Terms of Service or in connection with the Services.
10.9.2 If any court or arbitrator determines that the class action waiver set forth in this section is void or unenforceable for any reason or that arbitration can proceed on a class basis, then the disputes, claims, or controversies will not be subject to arbitration and must be litigated in federal court located in Portland, Oregon, or nearby surrounding area up to 10 miles.
10.9.3 The terms of this Section will apply to any claims asserted by you against ESOGA to the extent that any such claims arise out of your access to, and/or use of the Services, and/or the provision of content, services, and/or technology on or through the Services.
11. Entire Agreement
This Agreement, together with the ESOGA Policies and any amendments and any additional agreements Customer may enter into with ESOGA in connection with the Service, is the entire agreement between the parties which supersedes any prior agreement, whether written or oral, relating to the subject matter of this Agreement. This Agreement may only be modified by mutual agreement of the parties in writing.
This Software License Agreement was last modified 3/31/2021.