This License and Subscription Agreement (“Agreement”) is a legal agreement between the individual or entity entering into this Agreement as “Department,” and StationCheck LLC (“StationCheck”).
A. StationCheck is the developer and owner of one or more software and technology modules for the warehousing, transmission, and sharing of data and real-time reporting for purposes of managing, servicing, and maintaining equipment, staff and other assets (collectively, the “System”), which needs to be maintained in a state of readiness and which is made available through StationCheck’s web-based platform located at the URL StationCheck.com (the “Web Site”).
B. The features and functionality of the System and the Web Site are sometimes referred to herein collectively as the “Service.”
C. The Department desires to license use the Service for the purpose of maintaining and operating one or more fire station location(s) (each, a “Station,” and collectively, the “Stations”).
D. StationCheck is willing to provide the Department with the right and license to access and use the Service on the terms and conditions set forth herein.
In consideration of the promises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. Service: This Agreement governs access and use of Service. The Department’s registration for, or use of, the Service shall be deemed to be Department’s agreement to abide by this Agreement. In addition to the terms and conditions provided herein, the Department acknowledges and understands that any usage of the Web Site will also be subject to any terms, conditions, or policies that may appear at and govern the Web Site, as the same may be amended or modified by StationCheck, from time to time, in accordance with their respective terms.
2. License and Restrictions.
a. Generally. During the Term of this Agreement (specified below), StationCheck hereby grants Department a limited, non-exclusive, non-transferable, worldwide right to use the Service, solely for the purpose of maintaining and operating the Station or Stations in the Department, subject in all cases to the terms and conditions of this Agreement. All rights in and to the Service and the Web Site not expressly granted to Department are reserved by StationCheck and its licensors. Without limiting the generality of the foregoing, this Agreement and the license granted hereunder do not grant any access to source code for the System or any other applications or software of StationCheck.
b. c. User Subscriptions. The license purchased and subscribed for hereunder allows the Service to be accessed and used by designated employees of Department, each of whom has been authorized to use or access the Service, and has secured an identification and password to access the Service in the manner provided herein (each, a “Subscriber”). Department’s Subscribers will access and use the Service at all times in compliance with the terms and conditions of this Agreement. Further, Department is responsible for all activity that occurs in Subscriber accounts, and for each of its Subscribers’ compliance with this Agreement. Subject in all cases to the restrictions on assignment set forth in Sections 2(de) and 1413 below, Department may reassign rights (within its organization) to access or use the Service to new Subscribers that replace former Subscribers who no longer use or need access to the Service. Department may also modify its subscription at any time during the Term to increase the number of Stations covered by this Agreement, in which case Department may be subject to additional charges at StationCheck’s then-current rates.
c. d. Department Data. Included as part of the Service is a software program that resides on StationCheck’s web and mobile applications for the purpose of collecting and transmitting reports and other data. Department shall: (i) have sole responsibility for the accuracy, quality, legality, reliability and appropriateness of all data, reports, materials, or other information posted or transmitted through the Service (collectively, the “Department Data”); and (ii) prevent unauthorized access to, or use of, the Service or any Department Data, and notify StationCheck promptly of any such unauthorized access or use. Department shall obtain the consent of all third parties necessary to include their data, materials, or other information as part of Department Data, and to transmit, process, and store that data, materials, or information through the Service. Use of the Service constitutes acceptance that StationCheck has a right to keep, maintain, and use the Department Data for the purposes contemplated hereunder, and to limit access to, and to protect the same. For Department’s part, the Department grants to StationCheck a nonexclusive royalty-free license to access and use Department Data to provide the Service to Department and Department’s Subscribers. Without limiting the generality of the foregoing, the Department acknowledges that StationCheck may use Department Data to provide Service templates to other customers or other potential customers, and to aggregate Department Data with the data and information of other customers and subscribers of StationCheck for purposes of data analytics; provided, that any such aggregation or analysis will be on an anonymous, non-personally identifiable basis, and will not identify any data as belonging to or being provided by any specific customer or other organization. Department further acknowledges, understands, and agrees that certain features of the Service may permit the Department or its Subscribers to share and disseminate Department Data, both within the Department network of Stations, and also with other fire station networks. In addition, StationCheck shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information that the Department or the Department’s Subscribers provide relating to the features, functionality, or operation of the Service.
d. Restrictions. Department and its Subscribers may use the Service only for the purpose of maintaining and servicing their Stations, and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iii) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (iv) attempt to gain unauthorized access to the Service or its related systems or networks.
e. Reverse Engineering. Without limiting the generality of Section 42(ed), neither Department nor any of its Subscribers may reverse engineer, decompile, disassemble, translate, copy, modify, alter or otherwise change the Service, or part thereof (including without limitation any proprietary materials, or any software or documentation provided by StationCheck), without the prior express written consent of StationCheck. Department shall have no right to obtain source code for any software provided by StationCheck. Department may not modify or prepare derivative works based upon the System, the Web Site, or any element thereof, and Department may not redistribute, sell, license, lease, sublicense, assign, or otherwise transfer the System, the Web Site or the license or other rights granted hereunder.
3. Department and Subscriber Responsibilities.
a. Compliance with Laws. In accessing or utilizing the Service, Department agrees to abide (and to cause its Subscribers to abide) by all applicable local, state, national and foreign laws, treaties and regulations, including without limitation those related to fire stations and emergency response personnel, and also those related to data privacy, international communications, and the transmission of technical or personal data.
b. Passwords. In order to access and use the Service, Department and each of its Subscribers will be required to apply for and obtain a user name and password. Department will be responsible for maintaining the security and confidentiality of any user name or password assigned to it or its Subscribers. Department shall: (i) notify StationCheck within one business day of any unauthorized use of any password or account or any other known or suspected breach of security; and (ii) not impersonate another Web Site user or customer, or provide false identity information to gain access to or use the Service.
4. Service Fees and Payment.
a. Generally. Department shall pay (at the time such fee or charge is due and payable) all fees or charges specified under the terms of the Service package or packages selected by Department when it subscribed for the Service. StationCheck reserves the right to modify its fees and charges and to introduce new fees and charges (to become effective upon the upcoming Renewal Term), by providing Department written notice at least sixty (60) days prior to the end of the then current Initial Term or Renewal Term (as applicable) then in effect. In the event that Department does not provide notice of termination to StationCheck as described in Section 5(a) below, such fee changes shall become effective at the commencement of the next Renewal Term. With respect to any annual premium or other membership fee, such fee is payable and due on the Effective Date, and on the commencement of each Renewal Term thereafter. All premium or other membership fees are paid in advance and are non-cancelable, and all amounts paid are nonrefundable. If Department believes a particular charge is incorrect, Department must contact StationCheck in writing within 60 days of the payment date to be eligible to receive any credit.
b. Taxes. Unless otherwise specified, the charges owed hereunder shall be deemed not to have included taxes. The Department will thus also be responsible for all sales, use, property, value added or similar taxes based on the Service or other products or services provided hereunder, except for taxes based on StationCheck’s net income. StationCheck reserves the right to bill the Department for such taxes, and the Department agrees to pay to StationCheck (within thirty days following demand) the full amount of such taxes and any interest or penalties incurred due to late payment or nonpayment of such taxes by Department.
c. Delinquent Amounts. In addition to any other rights available to it at law or equity, StationCheck reserves the right to terminate this Agreement, and Department’s access to the Service, if Department’s account becomes delinquent. Delinquent amounts are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection, including StationCheck’s attorneys’ fees. Department will continue to be charged for amounts owed hereunder during any period of payment delinquency. Further, and without limiting any other rights or remedies available to StationCheck hereunder or under applicable law, in the case of any Department payment default, StationCheck, may, in its sole discretion, remove or delete any Department Data that may be stored or maintained by Department on the Service.
5. Term and Termination.
a. Term. This Agreement commences on the Effective Date and continues through an initial term of one (1) year, or such other initial term as is specified during the sign-up process (the “Initial Term”). Upon expiration of the Initial Term, this Agreement will automatically renew for successive one (1) year periods at StationCheck’s then-current fees (each, a “Renewal Term”), unless Department notifies StationCheck in writing at least forty-five days prior to expiration of the Initial Term or any successive Renewal Term (as applicable), of Department’s election not to renew. The Initial Term together with any Renewal Term (subject to any right of termination herein) is referred to in this Agreement as the “Term.”
b. Termination. Either party may terminate this Agreement upon a material breach of this Agreement by the other party (including to the extent provided under Section 4(c) above); provided, however, that, except in the case of a payment breach under Section 4 or a breach of any of the restrictions or provisions of Sections 2, 9, and 10, the non-breaching party will, prior to any termination, be provided written notice of any breach hereunder, as well as a thirty (30) day opportunity to cure. Further, to the extent permitted by law, either party may immediately terminate this Agreement in the event of: (i) an assignment for the benefit of creditors by the other party or the voluntary appointment (at the request of the other party or with the consent of the other party) of a receiver, custodian, liquidator or trust in bankruptcy of the other party’s property or the filing by the other party of a petition in bankruptcy or other similar proceeding under any law for relief of debtors; (ii) the filing against the other party of a petition in bankruptcy or other similar proceeding under any law for relief of debtors, or the involuntary appointment of a receiver, custodian, liquidator or trustee in bankruptcy of the other party’s property; or (iii) the other party dissolves, liquidates, or otherwise ceases business operations.
c. Effective of Termination. Upon termination or expiration of this Agreement, Department’s right and license to access and use the Service will automatically and immediately cease. StationCheck will be entitled to any compensation or other amounts earned with respect to the Service, as well as any interest, late charges, or other amounts owed, through the effective date of termination or expiration. Notwithstanding any termination or expiration of this Agreement, the provisions of Sections 2, 3(a), 4 (to the extent payments remain due), and 6 through 1413 shall survive such termination or expiration and remain in effect, as well as any provision that ought reasonably be construed to survive such termination or expiration. Neither party shall be liable to the other for damages of any kind, including incidental or consequential damages, on account of the rightful termination or natural expiration of this Agreement.
6. Representations and Indemnity.
a. Representations. Each party represents to the other that: (i) it has the legal power and authority to enter into this Agreement and to assume and perform all of obligations hereunder; (ii) this Agreement has been validly executed and delivered and is binding on such party; (iii) the execution and delivery of this Agreement and the performance by such party of its obligations hereunder have been duly authorized by all requisite action, and no further action or approval is required in order to constitute this Agreement as a binding and enforceable obligation of that party; and (iv) the undersigned individual is authorized to sign this Agreement on behalf of that party, and no additional signatures are required to bind that party. Department further represents that Department has not falsely identified itself or provided any false information to gain access to the Service, and that the Department billing information provided by Department to StationCheck is correct.
b. Indemnification. Department shall at all times defend, indemnify, and hold harmless StationCheck and its officers, managers, members, employees, accountants, attorneys, agents, affiliates subsidiaries, successors, and assigns from and against any and all third-party claims, damages, liabilities, costs and expenses, including reasonable legal fees and expenses (collectively, “Damages”), arising out of or related to: (i) Department or its Subscriber’s performance or nonperformance hereunder; (ii) use of the Service by Department or its Subscribers or other employees or agents; (iii) Department’s breach of any representation, warranty, covenant, or agreement specified herein; or (iv) Department’s ownership, use, or operation of the Stations. StationCheck shall at all times defend, indemnify, and hold harmless the Department and its officers, managers, members, employees, accountants, attorneys, agents, affiliates subsidiaries, successors, and assigns from and against any and all Damages arising out of or related to StationCheck’s breach of any representation, warranty, covenant, or agreement specified herein.
7. Limitation of Liability.
a. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, ALL PRODUCTS AND SERVICES ARE BEING PROVIDED TO DEPARTMENT ON AN “AS IS” BASIS. ALL WARRANTIES WITH RESPECT TO THE SERVICE AND OTHER PRODUCTS OR SERVICES BEING PROVIDED HEREUNDER, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR NON-INFRINGEMENT, ARE HEREBY EXPRESSLY DISCLAIMED.
b. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DEPARTMENT UNDERSTANDS AND ACKNOWLEDGES THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, SERVICE INTERRUPTIONS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. STATIONCHECK IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH ISSUES OR PROBLEMS. STATIONCHECK ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, DEPARTMENT’S COMPUTER EQUIPMENT OR OTHER PROPERTY AS A RESULT OF DEPARTMENT’S ACCESS TO, USE OF, OR VIEWING OF THE WEB SITE OR ANY ACCESSING OF DATA, TEXT, IMAGES OR SOFTWARE THEREFROM.
c. NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT OR THE WEBSITE, STATIONCHECK MAKES NO WARRANTIES THAT THE DEPARTMENT DATA OR OTHER INFORMATION PRESENTED ON OR THROUGH THE SERVICE IS CURRENT, UP-TO-DATE, OR ACCURATE. DEPARTMENT ASSUMES ALL RISK RELATIVE TO THE QUALITY, ACCURACY, ADEQUACY, COMPLETENESS, CORRECTNESS AND VALIDITY OF ANY SUCH DEPARTMENT DATA OR OTHER INFORMATION.
d. UNDER NO CIRCUMSTANCES SHALL STATIONCHECK BE LIABLE TO THE DEPARTMENT OR ANY THIRD PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, COSTS OF DELAY, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE. IN NO EVENT SHALL STATIONCHECK BE LIABLE IN ANY WAY FOR AN AMOUNT GREATER THAN THE PAYMENT PAID TO STATIONCHECK UNDER SECTION 4 ABOVE AS OF THE DATE THAT THE CLAIM IS MADE. DEPARTMENT ACKNOWLEDGES THAT STATIONCHECK WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR THE LIMITATIONS CONTAINED IN THIS SECTION.
e. Without limiting the generality of the foregoing, Department acknowledges and understands that there may be links on the Web Site, which allow Department to visit the web sites of third parties (“Third Party Sites”). Neither these Third Party Sites nor the companies to whom they belong are controlled by StationCheck. StationCheck makes no representations concerning the information provided or made available on such sites nor the quality or acceptability of the products or services offered by any persons or entities referenced in any such sites
8. No Partnership. No provision of this Agreement shall be interpreted to conflict with the intent of the parties that their legal status with respect to this Agreement, each other, and the Service and other products and services being provided hereunder shall at all times be that of independent contractors, and not as employees, partners, or joint venturers.
9. Intellectual Property Rights.
a. Neither party will acquire any ownership interest in each other’s intellectual property. Without limiting the generality of the foregoing, title to and ownership of the Web Site, the System (as well as all information provided through the Web Site or through the System), improvements, software, system, algorithms, know-how, trade secrets, and/or technology used by StationCheck to provide the Service and all other products and services contemplated hereunder, and all related intellectual property rights, rights to patents, copyrights, trademarks and trade secrets, and rights to any and all ideas, designs, concepts, techniques, discoveries, inventions, improvements, products, computer programs, procedures, specifications, data, memoranda, and other materials, whether or not patentable, related to the foregoing (collectively, the “Intellectual Property Rights”) are and shall remain the property of StationCheck and/or the owner of third party content or software which is incorporated into or provided with the intellectual property rights, as the case may be. All rights not specifically granted to Department herein are reserved to StationCheck.
b. Department shall be responsible for compliance with the Export Control Act and the Arms Export Control Act. Neither the Service, nor any underlying software, date, code, information or technology may be accessed or otherwise exported or re-exported into, or to a national or resident of any country to which the United States has embargoed goods (for example, Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria), or to anyone on the U.S. Treasury Department's list of Specially Designated Nations or the U.S. Commerce Department's Table of Denial Orders.
10. Confidentiality. During the Term of this Agreement and beyond, each party will maintain in strict confidence and will not, directly or indirectly, divulge, transmit, publish, release, or otherwise use or cause to be used in any manner to compete with or contrary to the interests of the other party, any confidential information relating to the other party’s products, technology, trade secrets, information, data, know-how or knowledge, financial information, sales and distribution information, price lists, the identity and lists of actual and potential customers, technical information, information or knowledge relating to customers, products, suppliers, sources of supply, business methods and techniques, market development programs, revenues, costs, management practices, contracts, documents, designs, computer programs, software designs, processes, plans or employees, and other information of like The foregoing confidentiality restrictions are in addition to such addition rights and restrictions as may exist pursuant to any non-disclosure, confidentiality, or other similar agreement that may be in place between the parties from time to time.
11. Force Majeure: Neither party shall be liable to the other for any failure or delay in its performance due to any cause beyond its control, including acts of war, acts of God, earthquake, riot, sabotage, labor shortage or dispute, Internet interruption, government acts, and other similar events.
12. Notice. For notices that are directed to Department as part of StationCheck’s general customer base, StationCheck may give notice by means of any of the following: (a) a general notice on the Service; (b) by electronic mail to Department’s e-mail address on record in StationCheck’s account information; or (c) by written communication sent by first class mail or pre-paid post to Department’s address listed in StationCheck’s account information. All notices sent to Department specifically under this Agreement (and not sent to the general customer base) shall be in writing, and may be given by means of any of the following: (x) by electronic mail to Department’s e-mail address on record in StationCheck’s account information; or (y) by written communication sent by first class mail or pre-paid post to Department’s address listed in StationCheck’s account information. All notices to be delivered by Department to StationCheck shall be in writing and shall be delivered by electronic mail to StationCheck at the following address: tonyc@StationCheck.com. Either StationCheck, on one hand, or the Department, on the other hand, may update its contact information for receiving notices by providing writing notice of such update to the other party in the manner provided in this Section 12. A notice delivered electronically hereunder will be deemed to have been delivered on the date and time of the signed receipt or confirmation of delivery or transmission thereof, unless that receipt or confirmation date and time is not a business day or is after 5:00 p.m. local time on a business day, in which case such notice will be deemed to have been received on the next succeeding business day. A notice delivered by first class mail or pre-paid post will be deemed to have been given three (3) business days after mailing or posting.
13. Miscellaneous. This Agreement constitutes and contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior or contemporaneous oral or written agreements. Each party acknowledges and agrees that the other has not made any representations, warranties or agreements of any kind, except as expressly set forth herein. Subject to the special provisions for modification of fees and charges under Section 4(a), StationCheck may update or amend this Agreement at any time, without notification to Department, in which case Department’s continued use of the Service shall be deemed irrevocable acceptance of any such revisions. Any such modifications or updates will be deemed effective as of the date that such modifications are incorporated into the version of this Agreement posted on the Web Site. Except as explicitly provided herein, this Agreement may not be modified or amended, except by an instrument in writing signed by duly authorized representatives of both parties hereto. This Agreement and the license and other rights granted hereunder, may not be transferred or assigned by Department without the prior written consent of StationCheck. For purposes of this Agreement, a sale of a controlling interest of Department’s equity securities or other change in control transaction will be deemed an assignment hereunder. This Agreement will be deemed entered into in Ohio and will be governed by and interpreted in accordance with the laws of the State of Ohio, excluding that body of law known as conflicts of law. The parties agree that any dispute arising under this Agreement will be resolved solely through confidential binding arbitration in Cleveland, Ohio before one arbitrator selected by the American Arbitration Association in accordance with its rules, who shall be an attorney with experience in resolving disputes in the software and internet advertising industries; provided, however, that the foregoing will not prevent or restrict a party from apply to a court of competent jurisdiction for immediate injunctive relieve in order to prevent or restrict a breach of the restrictions contained in Sections 2, 9, or 10 hereof. In the event of any dispute, each party shall bear its own attorney’s fees and expert witness fees. The language in this Agreement shall be construed as to its fair meaning and not strictly for or against either party. The headings in this Agreement are meant for convenience only, and shall not be deemed to affect the meaning or construction of any of the terms of this Agreement. This Agreement may be executed in two or more separate counterparts, each of which shall be deemed as an original, together shall constitute one original. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.