License Agreement

License Agreement for ReachSmart.ai

 

Last updated: Jan. 24, 2024

This License Agreement ("Agreement") is entered into as of purchase date (the "Effective Date") by and between ReachSmart.ai ("Seller") and Purchasing Company and its affiliates (collectively referred to as "Buyer"). Collectively, Seller and Buyer shall be referred to as the "Parties" and individually as a "Party".

 

WHEREAS, Seller has developed and owns an AI-driven marketing software service ("Software Service");

 

WHEREAS, Buyer desires to obtain a license to utilize the Software Service;

 

WHEREAS, Seller desires to grant Buyer a non-exclusive, royalty-bearing license to use the

Software Service;

 

NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

 

Software Service and License Grant 

1.1 Subject to the terms and conditions of this Agreement, Seller hereby grants Buyer a limited, non-exclusive, non-transferable, non-sub licensable license to access and use the Software Service for Buyer's internal business purposes during the Term (as defined below). 

 

1.2 Buyer acknowledges and agrees that Seller retains all rights, title, and interest in and to the Software Service, including all intellectual property rights therein.

 

Fees and Payment 

2.1 Subscription Fee: Buyer shall pay Seller a monthly licensing fee based on the quantity and type of subscription(s) purchased (the "Subscription Fee") for access to and use of the Software Service. The Subscription Fee includes access to up to 500 prospects per month.

 

2.2 Setup Fee: Buyer shall pay Seller a one-time setup fee of based on the quantity and type of subscription(s) purchased (the "Setup Fee").

 

2.3 Revenue Share Fee: In addition to the Subscription Fee and Setup Fee, Buyer shall pay Seller a fee on all revenue from accounts contacted by the Software Service (the "Revenue Share Fee"), during the term of this agreement. If this agreement is terminated, Buyer shall pay Seller a Revenue Share Fee on all revenue from accounts contacted by the Software Service prior to termination date, where a text, email, call and/or message (a “Response”) is sent by the prospect, prior to and/or within 6 months from the termination date. Revenue Share Fee amount shall be based upon the following schedule and calculated per transaction:

• 5% of all revenue

 

2.4 Payment Terms: The Setup Fee shall be due and payable upon execution of this Agreement. The Subscription Fee shall be due and payable in advance on the date the Software Service is set up for Buyer (the "Payment Day") and on the same day of each month thereafter during the Term. The Revenue Share Fee shall be due and payable within 30 days following the end of each calendar month in which the revenue was generated. The fees for any additional prospects requested by Buyer shall be due and payable on the Payment Day for the Subscription Fee during the month in which the additional prospects were requested. At the end of each Billing Cycle. The Subscription Fee will automatically renew unless Buyer cancels it or Seller cancels it. Buyer shall provide a valid payment method, including credit card, to process the payment for Buyer’s Subscription Fee and Additional Service(s). Buyer shall provide Seller with accurate and complete billing information including full name, address, state, zip code, telephone number, and a valid payment method information. By submitting such payment information, Buyer automatically authorizes Seller to charge all Subscription Fees and Additional Service fees incurred by Buyer. Should automatic billing fail to occur for any reason, Seller may (but does not have an obligation to) issue an electronic invoice, to Buyer which shall be payable, within thirty (30) days of receipt of said invoice, with the full payment corresponding to the billing period as indicated on the invoice. Seller reserves the right to terminate Buyer’s Subscription in the event Seller is unable to collect payment from Buyer (whether automatically or manually). Seller shall inform Buyer of the termination of this agreement via email and physical mail.

 

2.5 Late Payments: Any amounts not paid when due shall accrue interest at a rate equal to the lesser of 5% per month or the maximum rate permitted by applicable law, from the due date until the date of payment in full.

 

2.6 Taxes: Buyer shall be responsible for all taxes, duties, and levies associated with the use of the Software Service and any fees payable under this Agreement, excluding taxes based on Seller's net income.

 

2.7 Fee Changes: Seller, in its sole discretion and at any time, may modify Subscription Fees and Additional Service Fees. Seller will inform Buyer of any change to fees at least thirty (30) days in advance to give Buyer an opportunity to terminate Buyer’s Subscription before such change becomes effective. Any fee change will become effective immediately upon publishing, or, if Buyer has an active Subscription, at the end of the current Billing Cycle. Buyer’s continued use of a Subscription after a fee change comes into effect constitutes Buyer’s agreement to pay the revised fee amount.

 

Term and Termination 

3.1 This Agreement shall commence on the Effective Date and continue for a minimum term of twelve (12) months (the "Initial Term"). Following the Initial Term, this Agreement shall automatically renew for successive one (1) month periods (each a "Renewal Term", and together with the Initial Term, the "Term"), unless either Party provides the other Party with written notice of its intention not to renew at least thirty (30) days prior to the expiration of the then-current Term. 

 

3.2 Either Party may terminate this Agreement upon written notice to the other Party if the other Party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice thereof.

 

Confidentiality 

4.1 Each Party shall keep confidential any non-public information that it receives from the other Party in connection with this Agreement, and shall not disclose such information to any third party without the disclosing Party's prior written consent, except as required by law.

 

Governing Law and Jurisdiction 

5.1 This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of law principles. The Parties consent to the exclusive jurisdiction of the state and federal courts located in California for the resolution of any disputes arising out of or relating to this Agreement.

 

Miscellaneous 

6.1 This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, representations, and understandings, whether oral or written. This Agreement may be amended or modified only by a written instrument signed by both Parties. 

 

6.2 The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver of such provision or any other provision, nor of the right of such Party to enforce such provision or any other provision. 

 

6.3 If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall remain in full force and effect, and the invalid or unenforceable provision shall be deemed replaced by a valid and enforceable provision that most closely approximates the original intent and economic effect of the invalid or unenforceable provision. 

 

6.4 Neither Party may assign or delegate its rights or obligations under this Agreement without the prior written consent of the other Party, except that either Party may assign this Agreement to an affiliate or to a successor in interest in the event of a merger, acquisition, or sale of all or substantially all of its assets related to this Agreement, provided that the assignee agrees in writing to be bound by the terms of this Agreement. 

 

6.5 This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Facsimile or electronic signatures shall be deemed to be original signatures for all purposes. 

 

6.6 All notices, requests, and other communications under this Agreement shall be in writing and shall be deemed duly given upon receipt when personally delivered, sent by registered or certified mail (postage prepaid, return receipt requested), or delivered by an overnight courier service, to the addresses set forth at the beginning of this Agreement (or to such other address as a Party may designate by notice to the other Party).

 

6.7 By uploading or creating content on or through the Platform, Buyer grants Seller a free of charge, non-exclusive, perpetual, transferable, royalty-free, irrevocable, worldwide license to: (i) deliver the Platform to Buyer; and (ii) use the content for internal research and development and/or to improve the Platform and any other Seller technology. Where content includes personal information about private individuals this will be further regulated by our Privacy Policy, DPA, or other individual agreement. 

 

6.8 Buyer shall ensure that Buyer’s Content complies with, and assist Seller to comply with, the requirements of all legislation and regulatory requirements in force from time to time relating to the use of personal data included in Buyer’s Content, including (without limitation) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 and any successor legislation. 

 

6.9 Buyer is solely responsible for securing and backing up Buyer’s Content.

 

Additional Services and Amendment

7.1.1 The following included additional services ("Included Additional Services") shall be provided by Seller to Buyer, subject to the terms and conditions set forth in this Agreement:

(a) Bi-weekly data analysis & consultation

(b) Prompt Engineering

(c) Premium Support

 

7.1.2 The following additional services ("Additional Services") shall be provided by Seller to Buyer, subject to the terms and conditions set forth in this Agreement:

(a) Software development & integrations 

 

7.2 Fees and Payment for Additional Services 

7.2.1 During the Initial Term, the Included Additional Services shall be provided to Buyer at no additional cost. Following the Initial Term, in each Renewal Term, Buyer incur additional fees for each of the Additional Services:

(a) Bi-weekly data analysis & consultation

(b) Prompt Engineering

(c) Software development & integrations

(d) Premium Support: The Premium Support package includes the following services at no additional cost: 

(i) Bi-weekly data analysis & consultation 

(ii) Prompt Engineering

 

7.2.2 Buyer agrees to pay Seller a fee for each of the Additional Services as follows:

(a) Software development & integrations: $200/hour

 

7.2.3 The fees for the Additional Services and Included Additional Services during the Renewal Term shall be payable in advance, on the same day of each month as the Payment Day for the Subscription Fee, during the Renewal Term, unless otherwise agreed in writing by the Parties.

 

7.2.4 Buyer shall pay all applicable taxes, duties, and levies associated with the use of the Additional Services and Included Additional Services.

 

7.3 Term and Termination for Additional Services 

7.3.1 The provision of Additional Services shall commence on the date specified in a written agreement between the Parties, or as otherwise agreed by the Parties in writing, and continue for the duration of the Term or for such other period as agreed by the Parties in writing. 

 

7.3.2 Either Party may terminate any or all of the Additional Services upon written notice to the other Party if the other Party breaches any material term or condition applicable to the Additional Services and fails to cure such breach within thirty (30) days after receipt of written notice thereof.

 

7.4 Amendment to Agreement 

7.4.1 This Section 7 shall be deemed an amendment to the Agreement, and all other terms and conditions of the Agreement shall remain in full force and effect, except as expressly amended by this Section 7. 

 

7.4.2 In the event of any conflict or inconsistency between the provisions of this Section 7 and the other provisions of the Agreement, the provisions of this Section 7 shall control with respect to the subject matter hereof.

 

Non-Competition

8.1 During the Term and for a period of 60 months following the termination or expiration of this Agreement (the "Non-Competition Period"), Buyer shall not, directly or indirectly, whether on its own behalf or on behalf of any other person or entity:

(a) Develop, sell, market, license, or distribute any software, product, or service that competes with the Software Service or any other products or services provided by Seller under this Agreement; 

(b) Solicit, interfere with, or endeavor to entice away from Seller any customer, supplier, licensee, or business relation of Seller, or induce any such party to terminate or reduce its business with Seller; 

(c) Hire or solicit for employment any person who is or was an employee, consultant, or contractor of Seller during the Term, or induce any such person to terminate their relationship with Seller.

 

8.2 The restrictions set forth in this Section 8 shall apply in the United States of America and any other jurisdictions in which Buyer operates, or has plans to operate, during the Non-Competition Period.

 

8.3 Buyer acknowledges that the restrictions set forth in this Section 8 are reasonable and necessary to protect the legitimate business interests of Seller and that any violation of this Section 8 would cause irreparable harm to Seller. In the event of a breach or threatened breach of this Section 8, Seller shall be entitled, in addition to any other remedies it may have at law or in equity, to seek specific performance or injunctive relief, without the need to post bond or provide any other security, to enforce or prevent any violations of this Section 8.

 

8.4 If any provision of this Section 8 is found by a court of competent jurisdiction to be unenforceable, the Parties agree that the court shall modify such provision to the minimum extent necessary to make it enforceable, and that the remaining provisions of this Section 8 shall remain in full force and effect.

 

Intellectual Property Rights

9.1 Ownership: Seller represents and warrants that it owns or has the necessary licenses, rights, consents, and permissions to grant Buyer a license to use the Software Service as contemplated by this Agreement. All intellectual property rights, including but not limited to copyrights, trademarks, patents, and trade secrets, in and to the Software Service and any related documentation, improvements, modifications, or developments (collectively, the "Intellectual Property") shall remain the exclusive property of Seller or its licensors.

 

9.2 License: Subject to the terms and conditions of this Agreement, Seller grants Buyer a non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Software Service for its internal business purposes during the Term.

 

9.3 Restrictions: Buyer shall not, directly or indirectly, (a) modify, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software Service, (b) sublicense, rent, lease, or otherwise transfer the Software Service or any rights thereto, (c) remove or alter any copyright, trademark, or other proprietary notices contained in the Software Service, or (d) create derivative works based upon the Software Service.

 

Indemnification

10.1 Buyer shall indemnify, defend, and hold harmless Seller and its officers, directors, employees, agents, and representatives from and against any and all claims, actions, demands, losses, damages, liabilities, costs, and expenses, including reasonable attorneys' fees, arising out of or resulting from (a) any breach by Buyer of its representations, warranties, or obligations under this Agreement, or (b) Buyer's use of the Software Service in a manner not expressly authorized by this Agreement.

 

10.2 Indemnification Procedure: The indemnified party shall (a) promptly notify the indemnifying party in writing of any claim for which indemnification is sought, (b) give the indemnifying party sole control over the defense and settlement of such claim, and (c) provide the indemnifying party with all reasonable assistance, at the indemnifying party's expense, in the defense or settlement of such claim. The indemnifying party shall not settle any claim in a manner that adversely affects the indemnified party's rights or interests without the indemnified party's prior written consent, which shall not be unreasonably withheld or delayed.

 

Reporting and Payment of Revenue Share Fees

11.1 Reporting Obligations: Buyer shall maintain accurate and complete records of all closed business deals originated by the Software Service, including the associated revenue amounts, during the Term of this Agreement and for a period of 5 years thereafter. Buyer shall provide Seller with a written report on a monthly basis, within 10 days following the end of each calendar month, detailing the closed business deals, associated revenue amounts, and the corresponding Revenue Share Fees due for such month.

 

11.2 Access to Records: Buyer shall provide Seller with reasonable access to its records, upon Seller's written request, for the purpose of verifying the accuracy of Buyer's reports and the payment of Revenue Share Fees. Seller may engage an independent auditor, at its own expense, to conduct such verification, provided that the auditor is bound by a confidentiality agreement and the audit does not unreasonably disrupt Buyer's normal business operations.

 

11.3 Discrepancies: If Seller discovers any discrepancies in Buyer's reporting or payment of Revenue Share Fees, Buyer shall promptly pay any underreported or underpaid amounts, plus interest at a rate equal to the lesser of 1.5% per month or the maximum rate permitted by applicable law, from the due date until the date of payment in full. If the underreported or underpaid amounts exceed 5% of the total Revenue Share Fees due for the relevant period, Buyer shall also reimburse Seller for its reasonable costs and expenses incurred in conducting the audit.

 

11.4 Legal Obligation: Buyer acknowledges and agrees that its reporting obligations under this Section 11 are a material term of this Agreement, and that Seller's right to receive and verify the accuracy of such reports is essential to ensure the timely payment of Revenue Share Fees. Buyer's failure to comply with its reporting obligations, or to timely pay any Revenue Share Fees due, shall constitute a material breach of this Agreement, entitling Seller to pursue any available remedies at law or in equity, including but not limited to the right to terminate this Agreement, seek damages, or obtain injunctive relief.

 

Affiliate/Referral Program

12.1 Program Eligibility: Seller may offer an affiliate/referral program (the "Program") to existing clients, including Buyer, who wish to refer new clients to Seller. To participate in the Program, Buyer must comply with any applicable guidelines and requirements established by Seller.

 

12.2 Referral Rewards: If Buyer refers a new client to Seller and such new client becomes a paying client ("Referred Buyer") of Seller for a period of more than ninety (90) days, Buyer shall be eligible to receive a referral reward (the "Referral Reward"). Buyer may choose one of the following options for the Referral Reward:

(a) a discount of 10% off Buyer's fees for the Software Service for a period of three (3) months; or

(b) a one-time payment for 15% of the revenue generated by the Referred Buyer's.

 

12.3 Referral Process: In order to qualify for the Referral Reward, Buyer must provide Seller with the prospective client's contact information and ensure that the prospective client identifies Buyer as the referring party during the new client onboarding process. Seller reserves the right to verify the authenticity of the referral and the eligibility of both Buyer and the new client for the Program.

 

12.4 Payment of Referral Rewards: If Buyer chooses the one-time payment option for the Referral Reward, Seller shall pay the Referral Reward within thirty (30) days following the end of the ninety (90) day period during which the new client has been a paying client of Seller. If Buyer chooses the discount option for the Referral Reward, Seller shall apply the 10% discount to Buyer's Subscription Fee for the Software Service for the first billing period following the end of the ninety (90) day period.

 

12.5 Restrictions: Buyer may not refer itself or any entity under its control or in which it has an ownership interest for the purposes of the Program. Buyer shall not engage in any deceptive, misleading, or fraudulent practices in connection with the Program, including but not limited to providing false or misleading information about the Software Service or Seller, or using any form of incentive, inducement, or manipulation to generate referrals.

 

Customer Reference

13.1 Buyer agrees (i) that Seller may identify Buyer as a recipient of Service and use Buyer’s name and logo in sales presentations and on Seller’s website, and with prior approval in marketing materials and press releases, and (ii) with prior approval to develop a brief customer profile for promotional purposes on any websites owned and/or controlled by Seller.

 

Error Reporting and Feedback

14.1 Buyer may provide feedback directly at growth@reachsmart.ai with information and feedback concerning errors, suggestions for improvements, ideas, problems, complaints, and other matters related to our Software (“Feedback”). 

 

14.2 Buyer acknowledges and agrees that: (i) Buyer shall not retain, acquire or assert any intellectual property rights or other rights, title or interest in or to the Feedback; (ii) Seller may use the Feedback to improve the Software or any other technology; (iii) Seller may have development ideas similar to the Feedback; (iv) the Feedback does not contain confidential information or proprietary information from Buyer or any third-party; and (v) Seller is not under any obligation of confidentiality with respect to the Feedback. 

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14.3 Buyer hereby grants Seller and its affiliates an exclusive, transferable, irrevocable, free-of-charge, royalty-free, sub-licensable, unlimited and perpetual right to use (including copy, modify, create derivative works, publish, distribute and commercialize) the Feedback in any manner and for any purpose.‍

 

Disclaimer of Warranty

15.1 SELLER’S SOFTWARE AND ANY CONTENT THEREIN ARE PROVIDED BY SELLER ON AN “AS IS” AND “AS AVAILABLE” BASIS. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICE AND THE INFORMATION, CONTENT OR MATERIALS INCLUDED THEREIN. BUYER EXPRESSLY AGREE THAT BUYER’S USE OF THE SERVICE AND ANY CONTENT THEREIN IS AT BUYER’S SOLE RISK.

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TO THE EXTENT PERMITTED BY APPLICABLE LAW, SELLER MAKES NO WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SOFTWARE. WITHOUT LIMITING THE FOREGOING, SELLER DOES NOT REPRESENT THAT THE SOFTWARE, ANY CONTENT THEREIN OR ANY SERVICES OR ITEMS OBTAINED WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SOFTWARE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL OTHERWISE MEET BUYER’S NEEDS OR EXPECTATIONS. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. 

 

Changes To Service

16.1 Seller reserves the right to withdraw or amend our Service, and any service or material we provide via the Software, in Seller’s sole discretion without notice. Seller will not be liable if for any reason all or any part of the Software is unavailable at any time or for any period. From time to time, Seller may restrict Buyer’s access to some parts of Software, or the entire Software.

 

Amendments To Terms

17.1 Seller may amend this Agreement at any time by posting the amended Terms on this site. It is Buyer’s responsibility to review these Terms periodically. These terms become effective immediately upon posting, unless Buyer has an active Subscription in which case the revised Terms will become effective thirty (30) days after posting. If any revision to these Terms has a material impact on Buyer’s rights or obligations, Seller may notify Buyer of such revision using Buyer’s registered e-mail address.

 

17.2 By continuing to access or use Seller’s Software after any revisions become effective, Buyer agrees to be bound by the revised Terms. If Buyer does not agree to the revised Terms, Buyer is no longer authorized to use Software.

 

Waiver

18.1 No waiver by Seller or any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition, or a waiver of any other term or condition, and any failure of Seller to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.

 

Assignment

19.1 Seller may transfer it’s rights and obligations under these Terms to another organization. Seller will notify Buyer in writing if this happens and Seller will ensure that the transfer will not affect Buyer’s rights.

 

19.2 Buyer may not transfer any of it’s rights and obligations under these Terms to any other person without Seller’s prior express written consent.

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