Software License Agreement for ForeSee® Services
If you, as the purchaser of the ForeSee® Software and Services (as defined below), have a mutually agreed written agreement in place between ForeSee Results, Inc. and/or its parent company Answers Corporation, the terms of such mutually agreed written agreement prevail over this Software License Agreement.
By installing the ForeSee® Software (as defined below), you, the purchaser of the ForeSee® Software and Services (as defined below), on behalf of yourself and your affiliates, agents, employees and representatives (collectively, the “Client”) hereby agree as follows:
ForeSee Results, Inc., a Delaware corporation (“ForeSee”) shall collect, process, and/or compile data from Client's websites and other sources, using its proprietary software (such software, together with all later releases, updates and upgrades thereto, collectively, the “ForeSee® Software”), and use such information to provide the Client with access to data and reports, measuring customer satisfaction and future behaviors of users of the Client’s web site(s) (a "Measurement"). In addition, ForeSee shall provide any additional measurements (“Additional Measurements”) requested by the Client for a price agreed between the parties (the Measurement and any Additional Measurements collectively, the "Services").
Subscriber Licenses. To enable Client to receive the Services, ForeSee grants Client, and Client accepts, a non-exclusive, non-transferable, license to install, store, operate and/or use the version of the current release of the client portion of ForeSee’s proprietary software and Services, including: (a) any program routines or programming code that may be distributed as part of the Services, including but not limited to survey trigger code, mobile software development kit and cxReplay code (the “Subscriber Software”); (b) any URL link that may be distributed as part of the Services (the “Subscriber Survey URL”); (c) ForeSee’s data access portal, including the analytics tools and automated reporting described in an applicable Order Form (the “Online Portal”); and (d) ForeSee’s aggregated customer satisfaction data (the “Aggregated Indices,” described in Section 3). Client agrees to use the Subscriber Software, Subscriber Survey URL, the Online Portal, and the Aggregated Indices for no other purpose than the provision of the Services to the Client. Subscriber Software may be installed, stored, and operated only on websites identified in an applicable Order Form or otherwise approved in writing by ForeSee.
Subscriber Software for deploying web-based services may be implemented with any of the following code hosting options:
Additional information regarding Subscriber Software can be found at https://developer.foresee.com/
The Client shall be responsible for the installation and maintenance of any Subscriber Software pursuant to the instructions provided to the Client by ForeSee, and for Client’s equipment necessary to access ForeSee’s Online Portal, including all computer equipment, software, telecommunications, including high-speed connections to the Internet, to the extent they are needed to operate and/or access the Services from Client’s site of business. For all Web Measures, Client is responsible for the operation and maintenance of Client’s web environment. For all In-Location Measures, Client is responsible for incorporating the Client Survey URL into Client’s receipt, or otherwise facilitating delivery of the Subscriber Survey URL. For all Call Center Measures, Client is responsible for incorporating the survey invitation into Client’s Call Center workflow. For email delivered surveys, the Subscriber Survey URL may be delivered by Client or ForeSee, as described in the applicable Order Form. Client is responsible for ensuring that any email addresses provided by Client may be used without violation of law or regulation. If Client purchases ForeSee’s cxReplay product, Client shall be responsible for identifying web pages that collect and/or display potentially secure information, such as names and account information (“Personal Data”).
The price and payments terms that Client shall pay to ForeSee are contained in a separate written document which is herein incorporated in its entirety by reference.
Client agrees that FORESEE SHALL NOT BE LIABLE ON ACCOUNT OF ANY ERRORS, OMISSIONS, DELAYS, OR LOSSES UNLESS CAUSED BY FORESEE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. IN NO EVENT SHALL FORESEE BE LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF FORESEE FOR ANY CLAIMS, LOSSES, OR DAMAGES ARISING UNDER THIS AGREEMENT EXCEED THE TOTAL CHARGES PAID TO FORESEE DURING THE TERM, EVEN IF FORESEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL CLAIM, LOSS, OR DAMAGE. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.
Notwithstanding any statement to the contrary in any written document incorporated herein by reference or the pattern and practice of ForeSee and Client, the term of this Agreement shall continue only for such periods for which ForeSee receives the agreed payment from Client (the “Term”).
This Agreement may be terminated: (1) by either party upon the material breach by the other party of any of such other party's obligations hereunder, which breach has not been cured within 15 days after the breaching party has received notice thereof, or (2) by ForeSee upon 10 days' notice in the event of any delinquency of Client in payment of amounts due hereunder. In the event of any such termination, the license(s) granted to the Client pursuant to Section 2 shall terminate immediately.
Client may not sell, transfer, assign, or subcontract this License Agreement to another party without the prior written consent of ForeSee. Any act in violation of the foregoing shall be null and void.
Client shall be responsible for and shall promptly reimburse ForeSee for the payment of all sales, use, excise, or value-added tax or other assessments (including interest and penalties, but with respect to penalties, only if such penalties are incurred as a result of actions in which Client has concurred or participated) and duties imposed by all governmental entities based on the Services rendered by ForeSee to Client, provided that ForeSee shall be liable for any income taxes on or measured by net income or gross receipts of ForeSee.
Each party shall, at its own expense, comply with any governmental law, statute, ordinance, administrative order, rule, or regulation relating to its duties, obligations, and performance under this Agreement and shall procure all governmental licenses and pay all fees and other charges required thereby.
This contract is made under the laws of the State of Michigan and shall be interpreted, construed and enforced in accordance with the law of Michigan, without giving effect to its choice of law principles. The parties hereby agree to the exclusive jurisdiction of the state courts of Michigan and any federal court sitting in Michigan.
If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid, unenforceable, or otherwise contrary to law, the remaining provisions of this Agreement shall remain in full force and effect.
Survival. Sections 3, 6, 10, 12 and 13 shall survive the termination of this Agreement.