THIS IS A LEGAL AGREEMENT (THE “SUBSCRIPTION AGREEMENT”) BETWEEN THE PERSON (“LICENSEE” or “YOU”) OR ENTITY WHO IS UTILIZING THE CLEVER DIVISION (FORMERLY STAGEDPAY) SOFTWARE (THE “SOFTWARE”) AND RED MAPLE PRESS, INC. (“RED MAPLE”) EFFECTIVE AS OF THE EARLIER OF THE DATE OF (I) YOUR FIRST ACCESS TO THE SOFTWARE OR (II) DATE OF FIRST USE (“EFFECTIVE DATE”). BY THE EARLIEST OF ACCESSING OR USING THE SOFTWARE, YOU AGREE AND ARE SUBJECT TO THE LICENSE TERMS SET FORTH BELOW. IF YOU DO NOT ACCEPT THESE LICENSE TERMS, YOU MUST
NOT CONTINUE THE PROCESS TO ACCESS OR USE THE SOFTWARE. YOUR ACCESS AND/OR USE OF THE SOFTWARE SIGNIFIES AND CONSTITUTES YOUR ACCEPTANCE OF THIS SUBSCRIPTION AGREEMENT. A COPY OF THIS AGREEMENT IS ALSO AVAILABLE AT WWW.REDMAPLE.COM/CLEVERDIVISIONLICENSE.
YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO CONTRACTUALLY BIND THE LICENSEE AND THAT YOU ARE ENTERING INTO THIS SUBSCRIPTION AGREEMENT ON ITS BEHALF. IF YOU DO NOT HAVE THIS AUTHORITY, YOU SHOULD DESTROY ANY COPY OF THE SOFTWARE IN YOUR POSSESSION AND NOTIFY RED MAPLE IMMEDIATELY. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS SUBSCRIPTION AGREEMENT, RETURN THE SOFTWARE AND ACCOMPANYING DOCUMENTS TO RED MAPLE.
1.1.1 Red Maple hereby grants to the Licensee, a non-assignable, non-transferable and nonexclusive right to access the hosted Software for the Initial Term and any renewal term purchased by You, so long as such access is solely be Licensee’s representatives who have been designated as Authorized Users (provided the number of Authorized Users shall not exceed the number of designated by Red Maple on the Invoice and such Authorized Users shall solely access the Software from the territory designated in connection with Your subscription (herein called the “Territory”). If no Territory has been designated, then the Territory shall be the U.S. This Software is licensed by Red Maple, not sold.
1.1.2 The Licensee is granted the right to use the Software only by Authorized Users, including Authorized Users of the Subsidiaries. Licensee acknowledges and agrees that the Software and results obtained from the Software are solely for Licensee’s internal use. Licensee assumes all risk in relation to the use of the Software.
1.1.3 To the extent that the Licensee permits the Authorized Users to access and use the Software as set forth in Section 1.1.2, it shall be the sole responsibility of the Licensee to ensure that the Authorized Users do not violate the terms and conditions of this Subscription Agreement, and the Subsidiaries are legally bound to honor the terms and conditions stated in this Subscription Agreement prior to granting the Subsidiaries and their respective Authorized Users access to the Software. Where the Licensee fails to fulfill this obligation, it shall be deemed a breach of this Subscription Agreement, and such breach shall entitle Red Maple to terminate this Subscription Agreement for cause as further provided in Section 7.4 in addition to all other remedies available to it in law or equity. Licensee agrees to indemnify and hold Red Maple, and its directors, employees, affiliates, agents, suppliers, and the like and their respective directors, employees, affiliates, agents, suppliers, and the like harmless against any claim(s) or damages (including attorney fees, costs, damages, judgments, and expenses) based on misuse of the Software, violation of law or any breach of this Subscription Agreement by Authorized Users.
1.2 Updates. Licensee will receive product Updates concurrently with general release to other end users during your Subscription Term, without additional charge. If an Update is distributed that is a new instance of the underlying Software (as opposed to an add-in), Licensee may no longer use the prior version of the Software and the license for that prior instance of the Software shall be deemed immediately terminated upon installation of the Update in a production environment.
1.3 Audit. Licensee must retain its authorization to use the Software at a specified level only for itself and its Subsidiaries and by the number of Authorized Users as is set forth in the Licensee’s Invoice. Licensee agrees that on Red Maple’s request an executive officer of the Licensee will certify in writing compliance with the terms of this Subscription Agreement. Licensee further agrees that Red Maple may during normal business hours and with reasonable prior notice, request and gain access to Licensee’s premises for the limited purpose of conducting an inspection to determine and verify Licensee’s compliance with this Subscription Agreement and Licensee’s level of authorized use. The inspection will be conducted no more than once per year and in a manner not intended to disrupt Licensee’s business and will be restricted in scope and duration to that reasonably necessary to achieve its purpose.
1.4 Compliance with Law
1.4.1 Licensee agrees to use its best efforts to assure that: any use, adjustment, translation and modification by Licensee shall neither: (a) infringe on or violate any copyright, patent, or any other proprietary right of any third party; (b) violate any applicable law, regulation or third party right; nor (c) contain any obscene or defamatory materials, information, data or content, as such may be finally determined by a court of competent jurisdiction.
1.4.2 Licensee’s performance of this Subscription Agreement shall comply in all material respect with, and neither contravene, breach nor infringe, any laws or regulations of the United States and that of any Territory.
3.1 Licensee agrees not to remove or modify any copyright, trademark, patent, or other proprietary notices that appear, on, in or with the Software. The Software and all derivatives thereof are protected by United States copyright, patent and trademark law and rights granted by international treaties related to intellectual property rights. The Software is copyright © 2001-2022 Red Maple Press, Inc. All rights reserved. Any disregard of Red Maple’s or its licensor’s rights, including inappropriate access to the Software, shall be deemed to be a material breach of this Subscription Agreement and shall entitle Red Maple to terminate this Subscription Agreement for cause as further provided in Section 7.4 in addition to all other remedies available to it in law or equity.
3.2 Licensee assigns any interest it may be deemed to possess in any such Software or such derivative works to Red Maple and will assist Red Maple in every reasonable way, at Red Maple’s expense, to obtain, secure, perfect, maintain, defend and enforce for Red Maple’s benefit all intellectual property rights with respect to the Software and Software derivative works.
3.3 The Licensee shall not reduce the Software to human readable (or source code) form, reverse engineer, disassemble, manually copy, or decompile the Software, except where and only to the extent that such operations are permitted according to mandatory, statutory legislation, and the Licensee shall comply with that legislation in all respects.
3.4 Licensee shall not at any time during or after this Subscription Agreement assert any claim or interest in or do anything which may adversely affect the validity or enforceability of any copyright, trademark, patent, or other proprietary right of Red Maple. Unless otherwise agreed to between the parties, Licensee will not: (i) register, seek to register, or cause to be registered any intellectual property of Red Maple without Red Maple’s prior written consent; or (ii) allow Red Maple intellectual property to be used by others, without Red Maple’s prior written consent.
6.1 IN NO EVENT SHALL RED MAPLE BE LIABLE FOR ANY LOSS OF ANTICIPATED PROFIT, LOSS OF DATA, DAMAGE TO RECORDS OR DATA OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSS (COLLECTIVELY “LOSSES”) (WHICH FOR PURPOSES OF THIS SUBSCRIPTION AGREEMENT SHALL BE DEEMED TO INCLUDE, BUT NOT BE LIMITED TO THE LOSS OF GOODWILL, OR ANY OTHER LOSS AS A CONSEQUENCE OF ANY KIND OF BUSINESS INTERRUPTION) ARISING OUT OF OR IN CONNECTION WITH THIS SUBSCRIPTION AGREEMENT OR THE USE OR PERFORMANCE OF THE PROGRAM OR SERVICES CONNECTED THERETO EVEN IF RED MAPLE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES AND REGARDLESS OF WHETHER THE CAUSE OF ACTION IS IN CONTRACT OR TORT. ACCORDINGLY, THE LICENSEE CANNOT CLAIM, DEMAND OR SEEK RECOVERY FROM RED MAPLE FOR ANY OF THE FOREGOING LOSSES AND RED MAPLE WILL NOT INDEMNIFY THE LICENSEE FOR SUCH CLAIMS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RED MAPLE DISCLAIMS ANY PRODUCT LIABILITY AS A CONSEQUENCE OF LOSS OR DAMAGE TO PROPERTY WHICH, IN VIEW OF ITS NATURE, IS NORMALLY INTENDED FOR COMMERCIAL USE.
6.2 IN NO EVENT SHALL RED MAPLE’S CUMULATIVE LIABILITY FOR ANY CLAIM ARISING IN CONNECTION WITH THIS SUBSCRIPTION AGREEMENT EXCEED THE LESSER OF THE TOTAL FEES ACTUALLY PAID TO RED MAPLE BY LICENSEE FOR ITS SUBSCRIPTION TO THE SOFTWARE WITHIN THE LAST SIX MONTHS OR THE SUM OF $50,000, WHICHEVER IS LESS.
6.3 NO ACTION, WHETHER BASED IN CONTRACT, STRICT LIABILITY, OR TORT, INCLUDING ANY ACTION BASED ON NEGLIGENCE, ARISING OUT OF THIS SUBSCRIPTION AGREEMENT, MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE YEAR AFTER SUCH CAUSE OF ACTION ACCRUED, EXCEPT THAT AN ACTION FOR NONPAYMENT MAY BE BROUGHT WITHIN TWO YEARS OF THE DATE OF THE LAST PAYMENT.
6.4 RED MAPLE SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY ADJUSTMENTS OR OTHER MODIFICATIONS IN ANY PROGRAM CONNECTED TO THE SOFTWARE OR FOR ANY SERVICE AND SUPPORT OF THE SOFTWARE PERFORMED BY THE LICENSEE ITSELF OR PROVIDED BY THIRD PARTIES OR PARTNERS OF RED MAPLE. FURTHER, RED MAPLE SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY DEFECTS WHICH ARE A CONSEQUENCE OF EXTERNAL FACTORS, INCLUDING OTHER PROGRAMS, OR A CONSEQUENCE OF THE INTEGRATION OF OR INTERACTION BETWEEN THE PROGRAM AND THE LICENSEE’S OWN HARDWARE AND SOFTWARE ENVIRONMENTS.
6.5 WHERE ANY LIABILITY HAS BEEN LIMITED IN THIS SUBSCRIPTION AGREEMENT, SUCH
LIMITATION SHALL HAVE EFFECT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN SOME JURISDICTIONS, MANDATORY, STATUTORY LEGISLATION DOES NOT ALLOW SUCH EXCLUSION OR LIMITATION OF LIABILITY WHICH MAY ENTAIL THAT THE LIMITATIONS STATED HEREIN DO NOT APPLY TO THE LICENSEE, EITHER IN WHOLE OR IN PART.
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7.1 Term. The term of this Subscription Agreement shall be the period agreed to with Red Maple as set forth in your Invoice (the “Initial Term“), unless the Initial Term is extended or this Subscription Agreement is otherwise terminated as provided below; provided that thereafter the term of this Subscription Agreement shall automatically renew for one (1) year renewal terms until either party provides the other party with at least thirty (30) days prior written notice of termination (such renewal terms collectively with the Initial Term, referred to herein as the “Subscription Term“).
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7.2 Due to Expiration. This Subscription Agreement and the license granted hereunder shall terminate upon the expiration of the Subscription Term.
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7.3 Termination by the Licensee. The Licensee shall have the right to terminate this Subscription Agreement with at least sixty (60) days’ notice prior to the termination of the then current Initial Term or renewal term. The Licensee shall not be entitled to a refund of the paid subscription fee upon such termination.
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7.4 Termination by Red Maple. In the event of the Licensee’s breach of this Subscription Agreement or any change in control or insolvency of Licensee, Red Maple shall have the right to terminate this Subscription Agreement immediately with written notice in addition to all other remedies under law or in equity.
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7.5 Effect of Termination. Upon such termination, the Licensee shall promptly cease using the Software and promptly delete and erase and destroy the Software, including all and any copies thereof. Red Maple shall have no obligation to refund any paid subscription fees whatsoever.
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7.6 Survival. Sections 3, 4, 5, 6, 7, 8 and 10 and any other terms of this Subscription Agreement which, by their nature, extend beyond this Subscription Agreement will survive the termination or expiration of this Subscription Agreement.
10.1 Entire Agreement. This Subscription Agreement set forth the entire understanding between the parties and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter of this Subscription Agreement.
10.2 Amendments. This Subscription Agreement may not be amended, modified or superseded, unless expressly agreed to in writing by both parties. The parties acknowledge and agree that the terms of this Subscription Agreement will govern any subsequent renewal terms including any Updates provided by Red Maple, unless Red Maple has provided You with an updated subscription agreement in advance of the initiation of the next renewal of the Subscription Term in which case You agree that the terms of that agreement will govern any subsequent renewal term and that by Red Maple delivering the new subscription agreement and Licensee accepting such terms by continuing to use the Software that this Subscription Agreement shall be deemed amended, modified and superseded by such updated subscription agreement.
10.3 Validity and Severability. If any provision of this Subscription Agreement is held to be illegal, invalid or unenforceable, such provision shall nonetheless be enforced to the fullest extent permitted by applicable law, so as to reflect the original intent of the parties, and such provision shall not affect the legality and validity of the other provisions.
10.4 Export Restrictions. Licensee may not export or re-export the Software in violation of the export laws of the United States, or the applicable laws of any other jurisdiction. Among other things, U.S. laws provide that the Software may not be exported or re-exported to certain countries that are embargoed or restricted, or to certain restricted persons. Embargoed and restricted countries currently include, but may not be limited to, Cuba, Iran, Libya, North Korea, Syria and Sudan. LICENSEE SHALL INDEMNIFY AND HOLD RED MAPLE HARMLESS IN CONNECTION WITH ANY BREACH OF THIS SECTION.
10.5 Waiver. If either party does not exercise, or delays exercising, a right or remedy provided by this Subscription Agreement or by law, that failure or delay will not amount to a waiver of that right or remedy by that party. The fact that a party does exercise a right or remedy provided by this Subscription Agreement or by law does not prevent that party from exercising that right or remedy again, or exercising another right or remedy.
10.6 Independent Contractors. The parties are independent contractors, and this Subscription Agreement shall not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties. No party has the power to bind the other or incur obligations on the other’s behalf.
10.7 Electronic Execution in Counterparts. This Subscription Agreement may be executed in counterparts including via execution of this Subscription Agreement electronically, each of which will be deemed an original, but all of which taken together will constitute but one and the same instrument. An electronic transmission of your acceptance of this Subscription Agreement or other electronic transmission shall be legal and binding on you.
10.8 Notices. All notices, requests or other communications required or permitted to be given hereunder shall be sent by registered mail, postage prepaid, facsimile, or electronic mail to the Licensee at its address designated by you in connection with Your subscription or to such other address as may from time to time be notified by either party to the other and to Red Maple at Red Maple Press, Inc., Attn: Legal, 301 E. San Antonio, Boerne, Texas 78006, Fax: 830.331.9691. Notices shall be deemed received upon actual receipt.
10.9 Force Majeure. Neither party shall be held liable for any damage sustained by the other party as a direct or indirect consequence of the non-performing party being delayed, prevented or hindered in the performance of its obligations under this Subscription Agreement as a result of a force majeure situation. Force majeure situations include war and mobilization, catastrophes of nature, strikes, lock-out, fire, import and export regulations and other unforeseeable circumstances beyond the control of the party concerned.
10.10 Assignability. The Licensee shall have no right to sell/rent out/lend or in any other way transfer, sublicense or in any other manner assign Your subscription to use the Software or any right or obligation under this Subscription Agreement to any third party without the prior written consent of Red Maple. Red Maple reserves the right to transfer its rights and obligations under this Subscription Agreement in whole or in part to another company within the Red Maple Group or a third party. Transfer in violation of this Subscription Agreement, in whole or in part, will be void ab initio.
10.11 Construction. Where the context so admits, any reference to the singular includes the plural, any reference to the plural includes the singular, and any reference to one gender includes all genders. In this Subscription Agreement, a reference to a Section is a reference to a Section in this Subscription Agreement. The Headings of this Subscription Agreement are for convenience only and shall not constrain or affect its construction or interpretation in any way whatsoever.
10.12 No Third Party Beneficiaries. Nothing express or implied in this Subscription Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties and the respective successors or assigns of the parties, any rights, remedies, obligations or liabilities whatsoever.
10.13 Publicity; Information from Beta Usage. Red Maple shall have the right to include Licensee’s name in advertising, publicity, press releases, marketing and other promotional materials or activities identifying customers of Red Maple. Licensee agrees that Red Maple (and Red Maple’s designees) shall have the right to use, in any manner, in any medium, at its sole discretion and for any purpose, without any accounting or payment to Licensee, the contents of all oral and written reports to Red Maple and any and all other documentation, materials, know-how, information, ideas and concepts (i) gained by Red Maple as a result of Licensee’s use and evaluation of the Software, (ii) gained by Licensee as a result of Licensee’s use and evaluation of the Software, and/or (iii) transmitted and/or communicated by Licensee to Red Maple as a result of Licensee’s use and evaluation of the Software (including corrections to problems in the Software and Documentation) (collectively, the “Gained Information”). The use of the Gained Information by Red Maple and its designees shall include but not be limited to the creation by Red Maple or its designees, based upon, using or otherwise incorporating the Gained Information, of (i) additions, changes, modifications, new versions and/or corrections to the Software and/or Documentation, (ii) additions, changes, modifications, new versions and/or corrections to any other computer programs, websites, copyrightable works and/or documentation, and/or (iii) new computer programs, copyrightable works and/or documentation (the “Creations”). Red Maple shall have the right to use, at its sole discretion, all such Gained Information, including but not limited to through creation of the Creations, for assignment, license, or other transfer to third parties in Red Maple’s promotions, press releases, public relations, advertisements, and other sales and marketing activities. Under no circumstances will Red Maple become liable for any payment to Licensee for any information that Licensee provides, whether concerning the Software or otherwise, no matter how such information is used or exploited by Red Maple or anyone else. Furthermore, Licensee agrees that the Gained Information shall become the property of Red Maple.
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11.1 “Application Code” shall mean the computer programming code for the Software, i.e. the specific functions, forms, tables and reports which form a part of the Software.
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11.2 “Authorized Users” shall mean that number of employees or contract workers designated in connection with Your subscription in Your Invoice working for the Licensee or the Licensee’s Subsidiaries or entities in Common Control with the Licensee (who are subject to written agreements with the Licensee to maintain the confidentiality, comply with the terms of this Subscription Agreement and respect the intellectual property of Red Maple) which have been authorized by the Licensee to use the Software in their work for the Licensee or the Subsidiary, and for which the Licensee has acquired and paid for the right of use to the Software.
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11.3 “Common Control” shall mean (i) the ownership, directly or indirectly, of more than fifty percent (50%) of the voting equity interest in an entity, and (ii) the ability, directly or indirectly, to direct or cause the direction of the management and policies of that entity, whether through ownership of voting securities, by contract, or otherwise.
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11.4 “Database” shall mean a single computer or server upon which internal financial data of the Licensee is stored and which is accessed by the Software.
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11.5 “Documentation” shall mean all and any electronic and written aids and specifications developed by Red Maple in relation to the Software, for which the Licensee has acquired the right of use from time to time in connection with their subscription to the Software, and any descriptions developed by Red Maple in relation to the Software.
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11.6 “Error” shall mean any error, problem, or defect resulting from an incorrect functioning of Code, if such error, problem or defect renders the Code inoperable, causes incorrect results, or causes incorrect functions to occur when any such materials are used.
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11.7 “Invoice” shall mean the form presented to You electronically in connection with your entering into this Subscription Agreement.
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11.8 “Red Maple Group” shall mean Red Maple Press, Inc., its subsidiaries and affiliated companies in common control with Red Maple Press, Inc., including any subsidiaries thereof.
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11.9 “Software” shall mean those parts of the latest electronic unmodified standard version of
Red Maple’s subscription service referred to as Clever Division (formerly StagedPay), including Updates and external components which have been integrated and delivered by Red Maple as a part of Red Maple’s computer software program, for which the Licensee maintains an active subscription, and any related Documentation, as are designated in the Invoice.
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11.10 “Subsidiaries” shall mean entities in Common Control of Licensee for which the Licensee has acquired and paid for a subscription to the Software which were designated by You in connection with Your purchase of the subscription.
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11.11 “Updates” shall mean a new release of Software by Red Maple that provides additional performance, additional functionality, and/or accumulated software changes, Error corrections and improvements, which Red Maple provides to existing licensees from time to time to correct deficiencies in, and/or to improve or extend the capabilities of, the Software and it(s) operation.
