LICENSE SERVICE AGREEMENT /
TERMS OF USE
This License Service Agreement (Agreement) is made and effective as of Account Set Up Date by Licensor, (Effective Date) by and between Azzini Communications LLC, A Nevada Corporation (Licensor) and Organization(s) / Individuals listed in Account Set Up / License Service Agreement / Terms of Use form, and License Service Agreement / Users Code Set Up Form (Licensee).
1.
Basic Terms: The Basic
Terms of this Agreement include the following which are further developed in
the Agreement:
A.
Service: Coaches Call
B.
Licensor: Azzini
Communications LLC
Address:7235 Algonquin Dr, Cincinnati, Ohio 45243, USA
C.
Licensee: As Exhibited in
Account Set Up / License Service Agreement / Terms of Use Form, and License
Service Agreement / Users Code Set Up Form.
D.
Term: As Exhibited in
Account Set Up / License Service Agreement / Terms of Use Form
E.
Exhibits: Account Set Up
/ License Service Agreement / Terms of Use Form
2.
License: Licensee is granted a non-exclusive license (the License) to use the Service for Licensee's own purposes pursuant to this Agreement. Licensee is fully responsible for the use by any person or
entity whom Licensee authorizes or permits to use the Service, as well as
anyone who accesses the Service by utilizing Licensee's Confidential access
codes. The Licensee shall not
modify the Service, disable its control features, assign, license, sublicense,
rent, sell, resell or transfer the Service or this Agreement, or any portion
thereof or utilize the Service except as expressly permitted in this Agreement.
Further, Licensee will not use the service for any unlawful, abusive or
fraudulent purpose. If Licensor
determines in its sole judgment that Licensee is violating the terms of this
License, Licensor reserves the right, without advance notice, to immediately
terminate or modify the Service and in addition to assess additional charges.
The Licensor reserves the rights of Sponsorship. The License includes access
codes as noted in the product plan
purchased. Additional users access codes may be obtained at an additional
annual fee.
3.
Ownership/
Copyright/Trademark/Unauthorized Usage:
The Service is owned and copyrighted by Licensor and/or its affiliates. This Agreement confers no title or
ownership in the Service whatsoever and Licensee specifically disclaims any
form of ownership or right.
Trademark, and other intellectual property laws and international
copyright treaty provisions protect the Service. All websites, corporate names, trademarks, service marks, trade names, domain names and logos (the Marks) of Licensor or its affiliates remain their exclusive property, and nothing in this Agreement grants Licensee the right to such Marks. Except
for the limited license described in this Agreement, Licensor reserves all
rights in the Service and all underlying data, compilations, and information
maintained by Licensor relating to the Service, including, without limitation,
the source or object code.
4.
Function/Access: The
Service permits the ability to access pre-defined, calling or listed databases
via a Web based software application accessible over the Internet. Service may also be provided for Audio
Conferencing and Web Conferencing. The Service will also use a toll free
interactive voice response telephone service used to record prerecorded
messages and initiate calls out.
The Service is designed for 24 hours per day 365 days per year, but it is acknowledged by Licensee that the Service is provided AS IS and no credit allowance, refunds or other adjustments will be provided for interrupted service. The Service will be
available only in the USA or Canada individually.
5.
Term; Extension:
5.1.
Term: The
License will extend for a period as called for in the Account Set Up / License
Service Agreement / Terms of Use Form, beginning on the date called for in this
Agreement as accepted by both Licensee and accepted by Licensor. On termination
of this Agreement Licensee forfeits any Prepaid System Minutes remaining on
account.
5.2.
Contract Extension: At the option of parties Service may be extended for additional periods. Extension of the initial Agreement is acceptance of terms off use at that date. Upon activation of the extension provision, the following events will take place: 1) Licensee will notify the Licensor of the total number of participants in the up coming seasonal periods). 2) Licensor will update its systems to extend the active software license and assign new access codes for one additional period of use, 3) Licensor will invoice Licensee for one periods service extension at the current rate of service. Licensee is responsible for payment to Licensor of the service extension fee upon receipt of invoice and before service begins.Because of past use history of service, the Licensor reserves the right not to renew service to a Licensee, or at the published minimum pricing. An additional premium surcharge might be added or the Licensee must use a Pay per Call Plan. Licensee should reconfirm surcharges and Pay per Call Pan pricing in the Comments sections of the License Agreement Set Up Form.
6.
Costs for The Service: Licensee agrees to pay all costs for utilizing the Service as described in the most current Account Set Up / License Service Agreement / Terms of Use Form and made a part of this agreement.
7.
Acknowledgement: Licensee acknowledges that there are limitations in the availability of various components of the Service which may affect it including, but not limited to, power outages, Internet service outages, broadband failures, Telephone failures and other events of force majeure. Further, Licensee acknowledges that Internet and third party networks are not fully secure and are subject to interception, loss, etc there are also inherit limitations in all of the components of the Service. Licensor shall not be liable to Licensee in the event of any interruption of service or lack of presence on the Internet as a result of any disruption by the third party Internet Service Provider or public utility. In the event of any disruption of service, Licensor will use its best efforts to notify Licensee and to expedite resumption of service. Licensor cannot guarantee that the Service is fully secure.
8.
Appropriate Use of The Service: Licensor will provide Licensee with unique user name(s) and password(s) for access. Licensee agrees to maintain these as private and confidential, since login identification is of substantial importance to Licensor. Licensee, among other things, is responsible to train those with access to do so in a safeguarded, secure manner. Further, Licensee agrees to use the Service in a way that conforms with all applicable laws and regulations. Licensee shall not to make any attempt to gain unauthorized access to any of Licensor's system or networks. Licensee agrees that Licensor shall not be responsible in any way with respect to, nor liable for, the content of the prerecorded call out message(s) or Text delivered by the Service.
9.
Warranty; Disclaimer:
9.1.
Warranty: (a) Licensee acknowledge that software in general is not error-free and agrees that existence of such errors in software used in conjunction with the Service shall not constitute a breach of this License.
(b) If Licensee discovers a material error which substantially affects License's use of the Service and notifies Licensor of the error Licensor shall use reasonable measures to correct that part of the Service which does not so comply, provided that such non-compliance has not been caused by any modification, variation or addition to the Service not performed by Licensor, its agents or contactors, or caused by its incorrect use, abuse or corruption of the Service software, or by use of the Service with other software or on equipment with which it is incompatible.
(c) Licensee is responsible for maintaining access to the Internet. Licensor in no way warrants Licensee's access to the Internet via License's Internet Service Provider or the uninterrupted use thereof.
9.2.
Warranty Disclaimer: To the extent permitted by law, Licensor declaims all other warranties with respect to the Service, either express or implied, including but not limited to any implied warranties of merchantability or fitness for any particular purpose. In no event (even if circumstances cause any or all of the exclusive remedies to fail of its/their essential purpose and even if Licensor has been advised of the possibility of such damages) shall Licensor be liable for any special, indirect, incidental or consequential damages of any nature (regardless of whether such damages are alleged to arise in contract, tort or otherwise), including, but not limited to, loss of anticipated profits or other economic loss in connection with or ensuing from the existence, furnishing, function, or Licensee's use of provided for in this Agreement. Licensee agrees that the cumulative liability of Licensor for any and all claims relating to the Service provided by Licensor, in contract, tort or otherwise, shall not exceed that total amount paid by Licensee for the most recently purchased period term expense..
10.
Indemnification: To the extent permitted by law Licensee agrees to defend, indemnify and hold harmless Licensor and its affiliates, employees, resellers and agents, from any and all liabilities, costs and expenses, including reasonable attorneys¹ fees, arising from any violation of this Agreement by Licensee or those who access the Service through Licensee's account, or the use of the Service or the placement or transmission of any message, information or other materials by Licensee or by those who have access to the Service through Licensee's account or any violation by Licensee or those who have access of any laws, rules and regulations. Licensee is responsible for compliance with all applicable laws, rules and regulations including those regarding outbound telemarketing, which may include, but are not limited to the Federal Telephone Consumer Protection Act of 1991, and the Telemarketing and Consumer Fraud and Abuse Prevention Act of 1999 and under the State and Local laws and requirements. The provisions of this Section shall survive termination of this Agreement. Among other things, Licensee agrees that Licensor is not to be responsible for any third party claims against Licensee that arise from Licensee's use of the Service and Licensee will be responsible for reimbursing Licensor for all costs and expenses related to the defense of such claims including attorneys fees.
11.
Confidentiality/Non-Disclosure; No Duplication:
11.1.
Confidentiality/Non-Disclosure: (a) Licensee acknowledges and agrees that in providing the Service, Licensor may disclose to Licensee certain confidential, proprietary trade secret information of Licensor (Confidential Information). Confidential Information may include, but is not limited to, the Service, computer codes and programs, flowcharts, diagrams, manuals, schematics, development tools, specifications, pass codes, design documents, marketing information, financial information or business plans. During this Agreement and for a period of five (5) years thereafter, Licensee agrees that it will not, without the express prior written consent of Licensor, disclose any Confidential Information or any part thereof to any third party. At the termination of this Agreement, Licensee will cease utilizing the Service and will return all Confidential Information to Licensor unless Licensee renews the Service as outlined in this Agreement. Nothing in this Agreement will be deemed to prohibit the disclosure of any information in response to a subpoena or other similar order by a court or agency with jurisdiction to issue it which is relevant to the resolution of any dispute between the parties. The Licensee will promptly notify the Licensor of the receipt of any subpoena or other similar order and of any request under the Public Information Act or any other similar law. The Licensee will cooperate with the Licensor in defending against disclosure of any confidential information under any such subpoena, order or request.
11.2.
No Duplication: (b) Licensee also agrees that it shall not duplicate, translate, modify, copy, printout, disassemble, decompile or otherwise tamper with the Service or any software or other information provided to it.
12.
Limit of Liability: LICENSEE ACKNOWLEDGES READING THIS AGREEMENT. LICENSEE WILL NOT BE ENTITLED TO ANY OTHER DAMAGES, INCLUDING INDIRECT OR CONSEQUENTIAL DAMAGES FOR LOST PROFITS OR REVENUE OR OTHERWISE REGARDLESS OF THE FORM OF ACTION. LICENSOR AND ITS EMPLOYEES, AGENTS, CONTRACTORS AND REPRESENTIVES WILL HAVE NO LIABILITY WHATSOEVER FOR LOSS OF PROFITS OR REVENUE OR ANY DAMAGES OR MODIFICATIONS TO, OR LOSS OR DESTRUCTION OF LICENSEE'S SOFTWARE, FILES, EQUIPMENT OR PERIPHERALS. THE LIMITS OF LIABILITY SET OUT IN SECTION 10.2 WILL APPLY IN ALL EVENTS.
13.
Termination: License may terminate this Agreement by communicating Licensee's desire to terminate to Licensor in writing and by returning the Service, including all Confidential information and copies to Licensor. All Pre-paid System usage will be forfeited upon termination of this Agreement by Licensee, and Licensee will not receive a refund. Licensee understands that Licensor reserves the right to terminate Licensee's account at any time for reasons including, but not limited to, failure to abide by the terms of this Agreement or failure to pay any fees or charges when due. In the event that Licensor terminates for reasons other than Licensee's failure to comply with this Agreement, Licensor will refund to Licensee the balance proportionate percentage of Prepaid System rights in Licensee's account. Upon any termination, Licensee shall remove from Licensee's computer(s) any files related to the Service and take all actions consistent with this Agreement.
14.
Sole Agreement: This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. Only a further writing that is duly executed by both parties may modify this Agreement.
15.
Notices: All notices or requests, demands and other communications hereunder shall be addressed to the address set out in section 1 above.
16.
General: This Agreement does not provide any third party with a remedy, claim or right of reimbursement. All matters pertaining to the validity, construction and effect of this agreement shall be governed by the laws of the State of Ohio, USA. The parties hereby agree that the venue and jurisdiction of any dispute arising hereunder shall be in Hamilton County, Ohio, USA. If any dispute arises the prevailing party shall be entitled to the costs and attorney's fees from the losing party for enforcement of any right included in this agreement, both a Court of first jurisdiction and all Courts of Appeal.
17.
Force Majeure: Neither Licensor nor Licensee will be responsible to the other for any delay, failure in performance, loss or damage due to fire, explosion, power blackout, earthquake, utility failure, volcanic action, flood, the weather elements, strike, embargo, labor disputes, civil or military authority, war, acts of God, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, or other causes beyond Licensor's reasonable control. Notwithstanding the foregoing, Licensee must pay for any Service used.
18.
Changes to this Agreement: Licensee may change this Agreement from time to time. If Licensee make any changes to the prices or charges, Licensee will comply with our notice commitments described in this Agreement. IF LICENSEE CONTINUES TO BE ENROLLED IN, USE, OR PAY FOR THE SERVICES AFTER ANY CHANGES IN THE PRICES, CHARGES, TERMS OR CONDITIONS, LICENSEE AGREES TO THE CHANGES.
19.
Service Provider: Certain obligations Licensee under this Agreement will be carried out by Azzini Corporation which has no liability hereunder. All references to Licensee in sections 3, 4, 7, 9, 10, 11, 12, 13 and 18 cover Licensor's subsidiaries, affiliates and assigns, including Azzini Corporation.
20.
Additional Terms of Use: This Service is for the use of communicating relevant time saving and emergency information only. All other uses are prohibited. Service includes as many calls as needed during the term period as contracted. Each message can be up to one minuet in length. The service term period will be for various Months as purchased. Term periods covering longer periods will be priced additionally and individually. Without extension and payment of additional services; Master Lists, Dial Lists, and Messages will be deleted form the Licensor's system at the end of the term period. There is no credit or refunds for cancelled Tournaments unless rescheduled and played with in thirty days of original date. Sales Tax may be added in certain States to the costs, Tax Exempts must provide Certificates. All service is prepaid. Certain filters used by Licensee Contacts' internet providers may affect delivery of emails and is out of Licensors control.
21.
Payment by Credit Card: Licensee's Card Member acknowledges Receipt of service goods and or services when Account Number and User Number are assigned and processed in the amount of the total amount shown on the License Service Agreement and processed against the Licensee's Card Members Credit Card, and agrees to perform the obligations set forth by the Card Member's agreement with the Issuer.
Database Accuracy Updates
Licensee is responsible for use, importing and maintenance of all Contact Data, Master Lists, Dial Lists, Messages, and deployments in their Service.
Licensor, at Licensee's request, can handle data importing, maintenance of Contact Data and Master Lists for an hourly rate, quoted as needed.
In WITNESS WHEREOF, as indicated by Acceptance of Terms of Use by the Licensee and then Acceptance by the Licensor, the parties execute this Agreement on the dates indicated by the Licensor.