- Parties and Purpose
MOVING COMPANY AGREES TO THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”) GOVERNING USE OF FREEMOVINGPRICE.COM ONLINE SERVICE, INCLUDING OFFLINE COMPONENTS (COLLECTIVELY, THE “SERVICE”).
As part of the Service, FREEMOVINGPRICE.COM will provide MOVING COMPANY with use of the Service, including a website link to the service, data transmission, access and storage. Use of, the Service shall be deemed to be agreement to abide by this Agreement including any materials available on the FREEMOVINGPRICE.COM website incorporated by reference herein. For reference, a Definitions section is included at the end of this Agreement.
- Privacy & Security; Disclosure
FREEMOVINGPRICE.COM reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Note that because the Service is a hosted, online application, FREEMOVINGPRICE.COM occasionally may need to notify all users of the Service of important announcements regarding the operation of the Service. MOVING COMPANY agrees that FREEMOVINGPRICE.COM can disclose the fact that MOVING COMPANY is a customer of FREEMOVINGPRICE.COM.
MOVING COMPANY and FREEMOVINGPRICE.COM agree not to disclose to any third party the terms of this Agreement, including pricing, without the prior written consent of the other Party hereto, except to advisors, investors and others on a need-to-know basis under circumstances that reasonably ensure the confidentiality thereof, or to the extent required by law.
- License Grant & Restrictions
FREEMOVINGPRICE.COM hereby grants MOVING COMPANY a non-exclusive, non-transferable, right to use the Service, solely for its own business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to MOVING COMPANY are reserved by FREEMOVINGPRICE.COM and its licensors.
MOVING COMPANY shall not (i) license, sublicense, sell, resell, transfer, assign, distribute the Service or the Content in any way; (ii) copy any part of the Service, including but not limited to any source code or executable code, or the Content, modify or make derivative works based upon the Service or the Content; or (iii) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.
It is expressly acknowledged by the parties that FREEMOVINGPRICE.COM is an “independent contractor” with respect to MOVING COMPANY and nothing in this Agreement is intended or shall be construed to create any employer/employee relationship, partnership or joint venture between the parties. No employee or agent of either party may be deemed an employee or agent of the other party by reason of this Agreement. FREEMOVINGPRICE.COM shall be fully responsible for all tax liabilities arising from its status as an independent contractor. Each party shall notify the other and permit the other to participate in the resolution of any inquiry or audit relating to FREEMOVINGPRICE.COM’s status as an independent contractor.
- Account Information and Data
FREEMOVINGPRICE.COM does not own any data, information or material that MOVING COMPANY submits to the Service in the course of using the Service (“MOVING COMPANY Data”). MOVING COMPANY, not FREEMOVINGPRICE.COM, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all of its Data. In the event this Agreement is terminated (other than by reason of your breach), FREEMOVINGPRICE.COM will make available to MOVING COMPANY a file of its Data within 30 days of termination. FREEMOVINGPRICE.COM reserves the right to withhold MOVING COMPANY Data for non-payment breach. In the event such breach is resolved within 30 days, FREEMOVINGPRICE.COM will release all of MOVING COMPANY’s data to them.
- Intellectual Property Ownership
FREEMOVINGPRICE.COM alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Moving Software Application/Platform, the Content and the Service and any suggestions, ideas, inventions, enhancement requests, feedback, recommendations or other information provided by MOVING COMPANY or any other party relating to the Service. This Agreement is not a sale and does not convey to MOVING COMPANY any rights of ownership in or related to the Service, the Moving Software Platform or the Intellectual Property Rights owned by FREEMOVINGPRICE.COM. FREEMOVINGPRICE.COM’s name, logo(s), and product names associated with the Service are trademarks of FREEMOVINGPRICE.COM or third parties, and no right or license is granted to use them.
- Charges and Payment of Fees
MOVING COMPANY shall pay all fees or charges in accordance with the fees, charges, and billing terms set out in the Service and Fee Schedule Addendum, attached hereto.
- Excess Data Storage Fees
The maximum disk storage space provided to you at no additional charge is XX GB per. If the amount of disk storage required exceeds these limits, you will be charged the then-current storage fees. FREEMOVINGPRICE.COM will use reasonable efforts to notify you when the average storage used per license reaches approximately 90% of the maximum; however, any failure by FREEMOVINGPRICE.COM to so notify you shall not affect your responsibility for such additional storage charges. FREEMOVINGPRICE.COM reserves the right to establish or modify its general practices and limits relating to storage of MOVING COMPANY Data and will provide 30 days advance notice.
- Billing and Renewal
Terms of billing and renewal will be outlined in the Service and Fee Schedule Addendum(Exhibit A). Fees for other services will be charged on an as-quoted basis. FREEMOVINGPRICE.COM’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and MOVING COMPANY shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on FREEMOVINGPRICE.COM’s income.
MOVING COMPANY agrees to provide FREEMOVINGPRICE.COM with complete and accurate billing and contact information. This information includes its legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. MOVING COMPANY agrees to update this information within 15 days of any change to it. If the contact information it has provided is fraudulent, FREEMOVINGPRICE.COM reserves the right to terminate MOVING COMPANY’s access to the Service in addition to any other legal remedies.
Unless FREEMOVINGPRICE.COM in its discretion determines otherwise, all fees will be billed in United States (U.S.) dollars and subject to U.S. payment terms and pricing schemes. Payments must be made in U.S. dollars.
If MOVING COMPANY believes its bill is incorrect, the MOVING COMPANY must contact FREEMOVINGPRICE.COM in writing within 7 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
- Non-Payment and Suspension
In addition to any other rights granted to MOVING COMPANY herein, FREEMOVINGPRICE.COM reserves the right to suspend or terminate this Agreement and MOVING COMPANY’s access to the Service if their account becomes delinquent (falls into arrears). In the event this Agreement is terminated, MOVING COMPANY will be obligated to pay the balance due on its account computed in accordance with the Service and Fee Schedule Addendum. MOVING COMPANY agrees that FREEMOVINGPRICE.COM may charge and bill for such unpaid fees.
FREEMOVINGPRICE.COM reserves the right to impose a reconnection fee in the event MOVING COMPANY’s service is suspended and thereafter requests access to the Service. MOVING COMPANY agrees and acknowledges that FREEMOVINGPRICE.COM has no obligation to retain MOVING COMPANY Data and that such MOVING COMPANY Data may be irretrievably deleted if MOVING COMPANY’S account is 30 days or more delinquent.
- Without Breach. Following the Initial Term, this Agreement may be terminated by either party at any time upon 30 days written notice to the other party.
- Without Breach And Before Go-Live. Following execution this agreement, if FREEMOVINGPRICE.COM does not satisfy the Go-Live Date, this Agreement will automatically terminate and FREEMOVINGPRICE.COM will refund the one-time implementation fee ($2,500 (US)) that was paid by MOVING COMPANY.
- For Breach. This Agreement may be terminated by either party if (i) the other party (the “Breaching Party”) is in breach or default of a material obligation hereunder, and (ii) the Breaching Party has failed to cure such breach or default within 30 days of written notice describing such breach.
- Mutual Agreement. This Agreement may be terminated at any time upon the mutual written agreement of the parties.
- Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal to one month at FREEMOVINGPRICE.COM’s then current fees.
- Termination for Cause
Any breach of MOVING COMPANY’s payment obligations or unauthorized use of the Moving Software Platform or Service will be deemed a material breach of this Agreement. FREEMOVINGPRICE.COM, in its sole discretion, may terminate MOVING COMPANY’s account or use of the Service if they breach or otherwise fail to comply with this Agreement. MOVING COMPANY agrees and acknowledges that FREEMOVINGPRICE.COM has no obligation to retain the MOVING COMPANY Data, and may delete such MOVING COMPANY Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
- Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement and that it has had an opportunity to have legal counsel review this Agreement. FREEMOVINGPRICE.COM represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with normal use and circumstances. MOVING COMPANY represents and warrants that it has not falsely identified itself nor provided any false information to gain access to the Service and that its billing information is correct.
FREEMOVINGPRICE.COM represents and warrants that it shall comply with all applicable laws and regulations in performance of its duties hereunder. This section shall survive the termination of this Agreement.
- Support & Training
FREEMOVINGPRICE.COM will provide Help Desk support as set forth in the Support Services and Maintenance Addendum (Exhibit B).
- Maintenance & Disaster Recovery
FREEMOVINGPRICE.COM will maintain the Service as set forth in the Support Services and Maintenance Addendum (Exhibit B). Such maintenance may necessitate that the Service be unavailable during a maintenance period as set forth in the Support Service and Maintenance Addendum. In no event will FREEMOVINGPRICE.COM be liable for any damages caused or as a result of system unavailability required for any period of time to perform any system maintenance. MOVING COMPANY will be notified in advance of scheduled system maintenance and FREEMOVINGPRICE.COM will, whenever possible, perform said maintenance during non-business hours.
- Indemnification and Insurance
Each party shall be legally and financially responsible for the acts and omissions of itself and its employees, directors, officers, representatives and agents and will pay all losses and damages attributable to such acts or omissions for which it is legally liable. NOTWITHSTANDING THE FOREGOING, NEITHER PARTY [NOR ANY AFFILIATE OF “MOVING COMPANY”] SHALL BE LIABLE FOR ANY OTHER PARTY’S INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, REGARDLESS OF WHETHER THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. This Agreement shall not be construed to create a contractual obligation for one party to indemnify the other party for loss or damage resulting from any act or omission of such other party or its employees, directors, officers, representatives or agents, nor to constitute a waiver by either party of any rights to indemnification, contribution or subrogation that the party may have by operation of law.
- Disclaimer of Warranties
FREEMOVINGPRICE.COM AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. FREEMOVINGPRICE.COM AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY FREEMOVINGPRICE.COM AND ITS LICENSORS.
- Internet Delays
FREEMOVINGPRICE.COM’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. FREEMOVINGPRICE.COM IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
- Limitation of Liability
IN NO EVENT SHALL FREEMOVINGPRICE.COM’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM MOVING COMPANY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL FREEMOVINGPRICE.COM AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF FREEMOVINGPRICE.COM HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Additional Rights
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to MOVING COMPANY.
Any notice, demand, or communication required, permitted, or desired to be given hereunder shall be deemed effectively given when personally delivered or mailed by prepaid certified mail, return receipt requested, or nationally recognized overnight delivery service with receipt signature required and addressed as follows:
MOVING COMPANY FREEMOVINGPRICE.COM
__________________ ______ 2681 North Flamingo Road #2506__________________
__________________ ______ Fort Lauderdale, FL 33323 ___________________
Attn: Attn: _______________________
or to such other address, and to the attention of such other person(s) or officer(s) as either party may designate by written notice.
- Modification to Terms
No changes in or additions to this Agreement shall be recognized and binding unless and until made in writing and signed by all parties to this Agreement.
- Assignment; Change in Control
No assignment of this Agreement or the rights and obligations hereunder shall be valid without the specific written consent of all parties hereto.
This Agreement shall be governed and construed in accordance with the laws of the State of Florida and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Broward County, Florida.
No text or information set forth on any, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
No joint venture, partnership, employment, or agency relationship exists between MOVING COMPANY and FREEMOVINGPRICE.COM as a result of this agreement or use of the Service.
The waiver by either party of a breach or violation of any provision of this Agreement shall not operate as, or be construed to be, a waiver of any subsequent breach of the same or other provision hereof.
This Agreement, including all Addenda, comprises the entire agreement between MOVING COMPANY and FREEMOVINGPRICE.COM and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. No oral statements or prior written material not specifically incorporated herein shall be of any force and effect.
In the event that either Party is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of natural disaster, terrorism, fire, explosion, power blackout, earthquake, flood, the elements, strike, embargo, labor disputes, acts of civil or military authority, war, acts of god, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, actions or decrees of governmental bodies or communication line failure not the fault of the affected Party or other causes beyond such Party’s reasonable control (a “Force Majeure Event”) the Party who has been so affected shall immediately give notice to the other Party and shall do everything possible to resume performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended. If the period of nonperformance exceeds seven (7) days from the receipt of notice of the Force Majeure Event, the Party whose ability to perform has not been so affected may by giving written notice immediately terminate this Agreement as provided herein.
As used in this Agreement:
“Content” means the audio and visual information, documents, software, products and services contained or made available in the course of using the Service.
“MOVING COMPANY Data” means any data, information or material provided or submitted by MOVING COMPANY and its customers to the Service in the course of using the Service. MOVING COMPANY Data may include pricing information, inventory information, MOVING COMPANY’s assets and/or resources information, among other information provided by the MOVING COMPANY for use by Moving Software Application/Platform for calculating a moving estimate.
“Effective Date” means the date this Master Services and Software Agreement is signed by both parties.
“Initial Term” means the initial period during which MOVING COMPANY is obligated to pay for the Service.
”Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“FREEMOVINGPRICE.COM” means collectively FREEMOVINGPRICE.COM, Inc., a Florida corporation, having its principal place of business at 2681 North Flamingo Road, Apt 2506, Sunrise, FL 33323.
“Moving Software Application/Platform” means all of FREEMOVINGPRICE.COM’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available by FREEMOVINGPRICE.COM in providing the Service.
“Service(s)” means the specific edition of FREEMOVINGPRICE.COM’s hosted Moving Software product, developed, operated, and maintained by FREEMOVINGPRICE.COM, or ancillary online or offline products and services provided by FREEMOVINGPRICE.COM, to which MOVING COMPANY is being granted access under this Agreement, including the Moving Software Application/Platform and the Content.
“User(s)” means MOVING COMPANY employees, representatives, consultants, contractors or agents who are authorized to use the Service.
“Go-Live” means making publicly available the Moving Software Application/Platform that has been configured to use MOVING COMPANY’S Data to calculate moving estimates.
“Go-Live Date” means the date of Go-Live. The Go-Live date will not be greater than 30 days from execution of this agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date set forth above.