This Agreement is between you ("Customer") and Aspect Search. For convenience, Aspect will refer to (i) the Aspect Search service,
including any information, documentation, modifications and updates thereto, as the "Software"; (ii) any Software search
services or results, including, but not limited to, any services and other features, products or
services Customer may receive from Aspect Search pursuant to this Agreement as the "Search Services"; and (iii) the Software and
Search Services collectively as the "Aspect Search Service." The terms and conditions of this Agreement will govern Customer's
use of the Aspect Search Service.
Aspect reserves the right in its sole discretion to modify or discontinue the Aspect Search Service,
or to modify this Agreement or the terms and conditions of Customer's use of or access to the Aspect Search Service,
without notice. All modified terms and conditions will be effective ten (10) days after they are initially posted
on the Aspect Search website. If any modification is not acceptable to Customer, Customer's only recourse is to cease using
the Aspect website and the Aspect Search Service. By continuing to use the Aspect website or the Aspect Search Service
following any posting of a new Agreement or policies on the Aspect website, Customer accepts and agrees to be bound
by the new Agreement or policies.
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Software License & Access to Search Services
Subject to Customer's compliance with the terms and conditions of this Agreement, Aspect grants to Customer a
limited, non-exclusive, non-sub licensable and non-transferable license to access and use the Software in object
code only: (a) solely for the purpose of generating search results and displaying the Search Services on Customer's
website in accordance with the specific limitations set forth herein and for no other purposes; and (b) solely for
one (1) commercial Aspect Search Service account. Aspect reserves all rights and licenses in and to the Aspect Search Service not
expressly granted to Customer herein. The Aspect Search Service shall be hosted and served and the Software shall be
executed solely by a server under the direct supervision and control of Aspect or a third-party contractor authorized
by Aspect to do so. Customer shall not receive a copy of the Software, shall not have access to any Software or Search
Services protocols or administrative consoles (including, but not limited to, any Business Partner administrative console)
not expressly provided by Aspect to Customer hereunder and shall not have any other rights to the Aspect Search Service other
than those expressly granted under this Agreement. Customer shall comply with any implementation and technical requirements
for using the Aspect Search Service, including, without limitation, any requirements for sending, receiving and displaying
any Search Services, as described in any accompanying documentation or instructions (the "Documentation") which are
incorporated herein by reference. Customer acknowledges and agrees that Aspect and/or its Business Partners may (via test
queries or otherwise) review Customer's access to and use of the Aspect Search Service at any time to verify Customer's
compliance with the terms and conditions of this Agreement.
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Limitation on Use
Customer represents and warrants that the Aspect Search Service will not be used, accessed or displayed on any websites that contain,
encourage, promote or engage in: (a) pornographic or adult content material or sites with links to pornographic or adult content sites;
(b) illegal activity, sites encouraging racism or sites providing instructions or discussions about performing illegal activities;
(c) libelous or harassing activities; or (d) any activities similar thereto.
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Restrictions
Customer acknowledges and agrees that the Aspect Search Service constitutes or contains trade secrets of Aspect.
Accordingly, Customer agrees not to: (a) sublicense, transfer, assign, distribute or otherwise convey the Software to any third party;
(b) modify, edit, filter or create derivative works of the Aspect Search Service (including, without limitation, reordering or altering
of the search); (c) reverse engineer, disassemble, decompile, reduce the Software to human-readable form
or otherwise attempt to determine the source code associated with the Software or any Search Service; (d) use or copy the Aspect Search
Service except as expressly authorized under this Agreement; (e) attempt to access any software hosted and served by Aspect or its authorized
third-party contractors except for the Aspect Search Service; (f) directly or indirectly access, display or use
the Aspect Search Service through or from any toolbar, client-side application, plug-in, helper, component or other executable code that
runs on Customer's computer (including, but not limited to, software applications that provide instant messaging, chat, email, data, file
viewing, media playing, file sharing, games, internet navigation, search and other services); (g) access or use the Aspect Search Service
in pop-up, pop-under, exit windows, expanding buttons or animation; (h) "crawl," "spider," index or in any non-transitory manner store or
cache information obtained from use or access to the Software; (i) create or attempt to create substitute or similar services or products
through use of or access to the Aspect Search Service or proprietary information related thereto; (j) defeat or circumvent, or attempt to
defeat or circumvent, any technological restrictions imposed by the Aspect Search Service; or (k) engage in actions that, in Aspect's
sole discretion, are explicitly intended to disparage or devalue Aspect.
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OWNERSHIP
The Software is licensed, not sold. Except for the limited use rights expressly set forth herein, Customer acknowledges and agrees
that Aspect own all rights, title and interest in and to the Aspect Search Service, including, without
limitation, all intellectual property rights and goodwill therein. Customer will not delete or in any manner alter the copyright,
trademark and other proprietary rights notices or markings (including logos and brand features of Aspect)
appearing on or with the Aspect Search Service as accessed, integrated, displayed or used by Customer. No license, right or interest in
any trademarks, trade names or service marks of Aspect are granted under this Agreement. Customer agrees that
it will not use any logos, brand features or other attributions of Aspect except as expressly permitted by this
Agreement or in any accompanying documentation or instructions (which are incorporated herein by reference) provided to Customer with the
Aspect Search Service. Customer hereby irrevocably conveys, assigns and transfers to Aspect all rights, title and interest Customer may have
in the Aspect Search Service or the marks of Aspect. Aspect acknowledges that Customer and/or its licensors own
all intellectual property rights in the Customer website and Customer's trademarks, service marks and logos, including all components and
any associated documentation.
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TERM & TERMINATION
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Term
This Agreement shall commence when Customer clicks to agree to the terms on conditions from the registration page, and shall remain in
effect until terminated in accordance with this Section 3.
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Termination
Customer may terminate this Agreement at any time by ceasing to access, display or use the Aspect Search Service. If Aspect becomes
aware that Customer has ceased to access, display or use the Aspect Search Service for a period of two (2) months or longer, Aspect
may automatically terminate Customer's account without any further notice to Customer. Aspect may terminate this Agreement at any
time upon two (2) days' written notice to Customer. Aspect may terminate this Agreement immediately without notice if Customer fails
to comply with any provision of this Agreement.
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Rights and Obligations Upon Termination
The obligations of Aspect and Customer in Sections 2 (Ownership), 3 (Term & Termination), 5.3 (Promotional Rights), 6
(Confidentiality), 7 (Disclaimer), 8 (Customer Indemnification), 9 (Limitation of Liability) and 11 (Miscellaneous) shall
survive termination of this Agreement. Upon termination this Agreement, all licenses or rights granted to Customer hereunder
shall immediately terminate and Customer shall make no further use, access or display of the Aspect Search Service.
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SUPPORT SERVICES, INTEGRATION & REPORTS
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Support Services
Aspect may provide technical support for the Software through online help at the Aspect website.
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Limited Integration Assistance
Aspect shall provide online documentation to Customer that can be used by Customer to integrate the Aspect Search Service
into the Customer website. At Customer's request, Aspect may provide technical support to Customer to assist in such integration
at Aspect's discretion.
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Reports
Although Aspect may provide Customer with reports relating to Customer's use of the Aspect Search Service, Aspect has no obligation
to provide Customer such reports. Customer acknowledges and agrees that Business Partners shall have no reporting obligations to
Customer regarding any Business Partner feature or Search Services provided to Customer with the Aspect Search Service.
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CUSTOMER OBLIGATIONS
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Customer Information
Customer represents and warrants to Aspect that all information Customer will provide or has provided to Aspect during the registration
process that Customer followed in order to access the Aspect website and begin any installation, use or display of the Aspect Search
Service and anytime thereafter during the term of the Agreement (including, but not limited to, proper email, user agent and IP address
information) is accurate and complete.
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Access to Web Pages
Customer shall provide Aspect access to any and all Customer Data as required by Aspect or its authorized third-party contractors to host,
serve and provide the Aspect Search Service to Customer. "Customer Data" means the logical and physical organization and structure of the
data and associated files relating to web pages of the Customer websites. Except as otherwise provided herein and in the Aspect Privacy
Policy, Aspect will not use Customer Data for any purpose other than as necessary to archive and back-up such data or otherwise perform
its obligations herein.
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Promotional Rights
Customer hereby grants to Aspect a non-exclusive, worldwide, royalty-free license to use and display Customer's trademarks and service
marks on the Aspect website and any Aspect customer newsletter stating that Customer is using Aspect products and/or services. Subject to
approval from Customer, which shall not be unreasonably withheld or delayed, Aspect may issue a press release stating that Customer is a
user of Aspect products.
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Data Transmission Security
Customer acknowledges that Aspect has neither responsibility for nor control of the communications lines used to access the Aspect
Search Service because such lines are provided by a third-party public utility, and that the security of transmissions to and from the
Aspect Search Service is not the responsibility of Aspect and Aspect disclaims any and all liability relating thereto.
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CONFIDENTIALITY
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Definition
By virtue of this Agreement, one party may have access to information that is confidential to the other party (and, in the case of Aspect)
("Confidential Information"). Confidential Information shall include but not be limited to Aspect Search Service
performance and operation, third-party confidential information provided with the Aspect Search Service, algorithms, formulas, methods,
know-how, processes, designs, new products, developmental work, prospective customer names, the terms under this Agreement, Customer IP
addresses and account information and Customer Data, and all information clearly identified in writing at the time of disclosure as
confidential or information which by its nature should be deemed confidential.
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Exceptions
A party's Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no wrongful
act or omission of the other party; (b) was in the other party's lawful possession prior to the disclosure and had not been obtained by
the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party
without restriction on disclosure; or (d) is independently developed by one party without reference to the other party's Confidential
Information.
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Use and Nondisclosure
The parties agree to hold each other's Confidential Information in confidence. The party receiving the other party's Confidential
Information will use the same degree of care, but no less than a reasonable degree of care, as such receiving party uses with respect
to the protection of its own information of a similar nature. The parties agree to use the other party's Confidential Information solely
to the extent necessary (in the case of Aspect) to provide and (in the case of Customer) to access, display or
use the Aspect Search Service. Each party agrees not to use the other party's Confidential Information in violation of this Agreement and
agrees not to make each other's Confidential Information available in any form to any third party or to use each other's Confidential
Information for any purpose other than as required by this Agreement. Each party agrees that it may only disclose the other party's
Confidential Information to its employees and licensors solely for the purpose of
providing and/or using the Aspect Search Service and solely on a "need-to-know" basis, provided that such disclosing party shall ensure
that all such entities and personnel comply with confidentiality obligations at least as protective as those described herein. A party
may disclose Confidential Information if required by any judicial or governmental request, requirement or order; provided, that the party
will promptly notify the disclosing party of such request and cooperate with the disclosing party in its efforts to contest such request,
requirement or order or to obtain confidential treatment of such Confidential Information. Each party agrees to take all reasonable steps
to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this
Agreement.
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DISCLAIMER
THE ASPECT SEARCH SERVICE IS PROVIDED "AS-IS" AND ASPECT AND/OR ITS BUSINESS PARTNERS MAKE NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO
THE ASPECT SEARCH SERVICE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY,
NON-INFRINGEMENT AND QUIET ENJOYMENT, OR WARRANTIES OR CONDITIONS ARISING FROM COURSE OF CONDUCT, USAGE OF TRADE OR DEALING.
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CUSTOMER INDEMNIFICATION
Customer shall, at its own expense, defend, indemnify and hold Aspect and its Business Partners, affiliates, officers, directors,
employees, agents, licensors and contractors harmless from: (a) any breach of Customer's obligations under this Agreement or use of the
Aspect Search Service in any manner not authorized by the Documentation or this Agreement or in breach of the Agreement; and/or (b) any
claim or suit brought against Aspect by a third party based upon a claim that any part of the Customer website infringes any intellectual
property right, or that Customer misappropriated any trade secret of any other entity in connection therewith, including any losses,
damages or expenses (including, without limitation, reasonable attorneys' fees) arising from or incurred in connection with any such claim
or suit.
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LIMITATION OF LIABILITY
IN NO EVENT SHALL ASPECT BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES,
INCLUDING LOST PROFITS OR REVENUE, LOST SAVINGS, LOSS OF USE OF THE ASPECT SEARCH SERVICE OR ANY COMPONENT OR SUBPART THEREOF, BUSINESS
INTERRUPTION, COST OF SUBSTITUTED FACILITIES, EQUIPMENT OR SERVICES OR OTHER ECONOMIC LOSS ARISING OUT OF OR IN CONNECTION WITH ANY: (A)
BREACH BY CUSTOMER OF ANY OF ITS REPRESENTATIONS, WARRANTIES OR AGREEMENTS CONTAINED IN THIS AGREEMENT; OR (B) THE USE, DISPLAY, ACCESS OR
PERFORMANCE OF THE ASPECT SEARCH SERVICE, WHETHER OR NOT CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER OR NOT ANY
LIMITED REMEDY FAILED OF ITS ESSENTIAL PURPOSE, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, NEGLIGENCE OR TORT
(INCLUDING STRICT LIABILITY).
IN NO EVENT SHALL ASPECT'S AGGREGATE LIABILITY UNDER THIS AGREEMENT TO CUSTOMER, OR ANY OTHER THIRD PARTY, EXCEED THE AMOUNT ACTUALLY PAID
TO ASPECT BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PROCEEDING THE CLAIM OR ACTION GIVING RISE TO THE LIABILITY,
REGARDLESS OF THE FORM OF CLAIM OR ACTION.
THE LIMITATIONS OF LIABILITY AND WARRANTY DISCLAIMERS SET FORTH IN THIS AGREEMENT SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL
PURPOSE OF ANY EXCLUSIVE OR LIMITED REMEDY.
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INJUNCTIVE RELIEF
The Aspect Search Service contains valuable trade secrets of Aspect, and any material breach of this Agreement
(including, without limitation, a breach of Sections 1 or 6) will cause Aspect irreparable injuries for which there are no adequate remedies
at law. Therefore, in the event of any such breach, Aspect shall be entitled to obtain equitable relief without having to prove the amount of
monetary damages or that no adequate remedy at law exists, in addition to any other rights or remedies provided by this Agreement or otherwise
available at law or in equity.
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MISCELLANEOUS
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Governing Law
This Agreement shall be governed by and construed in accordance with the laws of Australia, without regard to or application
of its conflicts of law rules or principles, as though entered into between Australian residents and to be performed entirely within
Australia. The United Nations Convention on Contracts for the International Sale of
Goods will not apply.
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Third-Party Beneficiaries
This Agreement is intended for the sole and exclusive benefit of Customer and Aspect and is not
intended to benefit any other third party. Notwithstanding the foregoing, Customer agrees and acknowledges that Aspect has designated
certain Business Partners (including, but not limited to, Google, Inc.) as third-party beneficiaries to this Agreement, who shall have
rights and remedies under this Agreement, including the right to enforce the terms of this Agreement and bring any action on account of
its breach, whether in contract, tort or otherwise.
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Assignment
Customer may not assign or transfer this Agreement or any rights hereunder, in whole or in part, whether voluntarily or by operation of law,
without the prior written consent of Aspect. Aspect may assign this Agreement or any rights hereunder without Customer's consent. Any attempt by
Customer to assign this Agreement in breach of this Section shall be null and void. Subject to the foregoing, this Agreement shall be binding
upon and inure to the benefit of the parties hereto, their successors and assigns.
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Export
Customer agrees to comply fully with all relevant export laws and regulations of the United States and other countries ("Export Laws") to
ensure that neither the Aspect Search Service, nor any direct product thereof or technical data related thereto: (a) are exported or re-exported
directly or indirectly in violation of Export Laws; or (b) are intended to be used for any purposes prohibited by the Export Laws.
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Government Legend
If Customer is acquiring the Aspect Search Service on behalf of any unit or agency of the United States Government, the following provisions
apply. The Software constitutes a "commercial item," as that term is defined at Federal Acquisition Regulation (FAR) 2.101 (Oct. 1995),
consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in FAR 12.212 (Sept. 1995),
and is provided to the U.S. Government only as commercial software (with "Restricted Rights," if applicable). Any use, duplication or
disclosure of the Software by the U.S. government is subject to restrictions as set forth in this Agreement and as provided
in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19,
or FAR 52.227-14 (ALT III), as applicable.
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General
This Agreement constitutes the entire and exclusive agreement between the parties hereto with respect to the subject matter
hereof and supersedes any prior agreements between the parties with respect to such subject matter. Nothing in this Agreement shall
be construed as creating an employer-employee relationship, a partnership or a joint venture between the parties. If any provision
of this Agreement, or portion thereof, is found to be void or unenforceable, such provision will be enforced to the maximum extent
permissible so as to effect the intent of the parties, and the remaining provisions of this Agreement will continue in full force
and effect. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of
that or any other provision. All notices required or permitted under this Agreement will be in writing and delivered by email.
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TERMS APPLICABLE TO PAYEMT TO USE THE ASPECT SEARCH SERVICE
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Term of Payment
Payment for the Aspect Search Service is paid annually in advance using a valid credit card as set forth in Section 12.3 below.
Upon Aspect's confirmation of receipt of
the annual fee specified in Section 12.2 below, Customer shall have the right to use the Aspect Search Service for a one year
term from the date Aspect's receives confirmation of payment of the applicable annual fee. Unless either party gives the other party
written notice of its intent to terminate Customer's right to use the Aspect Search Service at least thirty (30) days prior to
the beginning of any renewal term (with each such renewal beginning on the anniversary of the date on which Customer first subscribed
for the Aspect Search Service), Customer's right to use the Aspect Search Service will automatically renew for successive one
year terms upon Aspect's receipt of confirmation of the applicable annual fee. Notwithstanding the foregoing, Aspect reserves the right
in its sole discretion to modify or discontinue the Aspect Search Service, or to modify the terms of this Section 12 or the terms
and conditions of Customer's use of or access to the Aspect Search Service, without notice.
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Fees for Aspect Search Service
The annual fee for the Aspect Search Service is based on the number of pages included in the Customer's account(s)
as set forth below (all prices in USD):
| Number of Pages |
Annual Fee |
| 0 - 3,000 |
$180.00 |
| 0 - 10,000 |
$360.00 |
No refunds shall be paid to Customer if Customer terminates its use of the Aspect Search Service during the
initial term or any renewal term.
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Method of Payment
Customer acknowledges that all payments with respect to the Aspect Search Service shall be charged to the credit
card provided by Customer to Aspect. Customer acknowledges and agrees that Aspect shall have the right to charge renewal
fees for use of the Aspect Search Service to the credit card maintained in Aspect's database at the time such fees
become due and payable. Customer shall have no right to dispute the validity of a renewal term or a renewal payment
unless Customer provided written notice of non-renewal to Aspect in accordance with Section 12.1 above at least thirty
(30) days prior to the beginning of any annual renewal term. Aspect has no obligation to provide a refund or honor a
chargeback request if Customer has failed to provide such advance written notice to Aspect.
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Failure to Pay Fees
If Aspect does not receive the annual fee (either for the initial term or any subsequent renewal term),
Aspect shall have the right to terminate Customer's use of the Aspect Search Service without providing notice to Customer.