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Master License Agreement

Darren David
  • Updated

This Master License Agreement (the “Agreement”) is by and between Freetouch, Inc, a Delaware corporation (“Freetouch”), and the entity that has accepted the terms and conditions of this Agreement (“Customer”) by authorizing payment (directly or indirectly) for one or more licenses of the Freetouch Software, by executing an Order (defined below), or by otherwise installing and using the Software.  This Agreement is effective between Freetouch and Customer on the date on which the earliest of the foregoing occurs (the “Effective Date”). 

The individual who authorizes payment, executes an Order, or otherwise installs the Software on behalf of Customer hereby represents and warrants that they have the authority to bind Customer to the terms and conditions of this Agreement.

  1. Freetouch Software. The Freetouch Software (the “Software”) shall include the products, software, functionality and services licensed by Customer and provided by Freetouch, as specified on an Order or as downloaded and installed by the Customer including, the related services supporting the installed software.  
  2. Free Trial. Customer may use the Software on a trial basis, free of charge, until the earlier of (a) the end of the free trial period for which Customer registered to use the Software, or (b) the start date of any license subscription specified on an Order for Software. Notwithstanding anything to the contrary in this Agreement, during the free trial, the Free Trial Software is provided “as-is” without any representation or warranty.“ Free Trial Software” means any Freetouch software, service or functionality that may be made available by Freetouch to Customer to try at Customer’s option, at no additional charge, and which is clearly designated as “beta,” “trial,” “non-GA,” “pilot,” “developer preview,” “non-production,” “free trial,” “evaluation,” or by a similar designation. For the avoidance of doubt, during the Free Trial, Customer may not use the Software for any commercial or public display purposes, including but not limited to; public display, trade shows, commercial deployments in a business or public location or private commercial uses, Free Trial Software is only permitted to be used for evaluation, testing or other use agreed in writing between Customer and Freetouch.  
  3. Order. Customer (or any Affiliate) may license the Software from Freetouch (or any Affiliate), an authorized reseller, or through Freetouch’s third party Merchant of Record, by executing an order form provided, directly or indirectly, by Freetouch or their Merchant of Record (“Order”). All Orders must incorporate by reference the terms and conditions of this Agreement, and are valid upon acceptance by Freetouch. The parties agree that the terms and conditions of this Agreement shall not be varied or amended by any additional terms found on any purchase order issued by Customer (“Additional Terms”). Any additional obligations placed on Freetouch by such Additional Terms shall be void.  Terms and conditions may however, be amended and such amended terms may be agreed between the parties on a specific Order. For purposes of this Agreement, “Affiliate” shall mean any entity that directly or indirectly controls, is controlled by, or is under common control with the Customer entity signing this Agreement or Freetouch. For purposes of this definition, "Control" means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. 
  4. Grant of License; Use. Subject to the terms and conditions of this Agreement, Freetouch hereby grants to Customer and Customer hereby accepts from Freetouch a non-exclusive, non-transferable, non-sublicensable, and revocable license to: (a) install and use any installable components of the Software on, and connect the Software to, computer systems owned or controlled by Customer (meeting minimum specifications that may be identified by Freetouch); (b) use the Software solely in accordance with the instructions and any other documentation provided by Freetouch regarding the Software (the “Documentation”); and (c) access the remotely accessible components of the Software. Customer may not use the Software for any other purpose or for the benefit of any other party, except as may be permitted in writing by Freetouch. Customer may copy and distribute the Documentation solely for Customer’s use to install and support the Software, provided that all of the copyright or proprietary notices of the original are included in all copies or partial copies. Any use of the Software in breach of this Agreement, Documentation or Orders, by Customer or end users that in Freetouch’s judgment threatens the security, integrity or availability of the Softwaree, may result in Freetouch’s immediate suspension of the Software; however, Freetouch will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to such suspension.
  5. Customer Affiliates. Customer Affiliates may license and use Software subject to the terms and conditions of this Agreement by executing an Order, hereunder that incorporates by reference the terms and conditions of this Agreement, and in each such case, all references in this Agreement to Customer shall be deemed to refer to such Customer Affiliate for purposes of such Order.
  6. Restrictions. All rights not expressly set forth in this Agreement are reserved by Freetouch. Without limiting the foregoing, Customer may not (without Freetouch’s prior written consent): (a) sell, lease, license, rent, loan, resell or otherwise transfer the Software, in whole or in part, or any of the rights under the license granted under Section 2, to any third party; (b) reverse engineer, decompile, or disassemble the Software, in whole or in part; (c) modify, or create derivative works based upon the Software, in whole or in part, or any of the Documentation; (d) copy the Software, in whole or in part, except as part of Customer’s permitted use pursuant to Section 2; (e) remove any proprietary notices or labels from the Software or any Documentation; or (f) use the Software for any illegal or improper purpose. Customer shall not allow anyone other than Freetouch or one of its agents or other designees to service the Software. Nothing in this Agreement is intended by the parties to constitute a sale of the Software or any derivations thereof.
  7. Ownership. The Software and Documentation are the valuable proprietary and trade secret information and property of Freetouch or its licensors. Title, ownership rights and intellectual property rights, including but not limited to, copyright and patent rights in the Software and Documentation, and all derivatives thereof, shall remain in Freetouch and/or its licensors. Customer acknowledges the ownership and intellectual property rights of Freetouch and will not take any action to jeopardize, limit or interfere in any manner with Freetouch’s or its licensors’ ownership of or rights with respect to the Software and Documentation.
  8. Fees and Payment. The licensing fees hereunder (“Fees”) shall be as set forth in the applicable Order or as otherwise specified in writing by Freetouch., and shall be due and payable in advance on the Effective Date. If not otherwise specified on an Order, Fees will be due within thirty (30) days of date of invoice. All amounts are stated and shall be paid in U.S. dollars received in the United States. Freetouch will invoice Customer for the Fees, and all such Fees are payable within thirty (30) calendar days of Customer’s receipt of invoice. Except as otherwise specifically provided in this Agreement, all Fees paid and payable to Freetouch hereunder are non-cancelable and non-refundable. If Customer fails to pay any amounts due under this Agreement by the due date, in addition to any other rights or remedies it may have under this Agreement or by matter of law, (i) Freetouch reserves the right to suspend the Software upon fifteen (15) days written notice, until such amounts are paid in full, and (ii) Freetouch will have the right to charge interest at a rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law until Customer pays all amounts due; provided that Freetouch will not exercise its right to charge interest if the applicable charges are under reasonable and good faith dispute and Customer is cooperating diligently to resolve the issue. If Freetouch must initiate a collections process to recover Fees due and payable hereunder, Customer shall pay all costs associated with such collections efforts.
  9. Taxes. Fees do not include any local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). In addition to Fees, Customer shall pay any and all Taxes, however designated or levied, whether imposed by any U.S. or foreign regulatory body, except for taxes and levies relating to Freetouch’s income. Customer’s payments to Freetouch hereunder shall be made without withholding or deduction for or on account of any such taxes or levies. 
  10. Support. During the Term, Freetouch shall provide support services to Customer in accordance with Freetouch’s then-current Freetouch Service Level Agreement (“SLA) set forth at https://freetou.ch/sla, which may be reasonably updated from time-to-time by Freetouch
  11. Confidential Information. For purposes of this Agreement, “Confidential Information” shall mean any information (i) designated as confidential orally or in writing by either party hereto, (ii) related to the Software or Documentation, (iii) related to either party’s business, or (iv) other non-public information received by a party hereto (“Receiving Party”) by virtue of its relationship under this Agreement with the party disclosing the information (“Disclosing Party”), including, but not limited to, product or services plans and strategies, product designs, costs or prices for services or products, financial information, marketing plans, business opportunities, customer data, software, research or know-how. Confidential Information does not include information which (a) is rightfully received by the Receiving Party from a third party without restriction or violation of confidentiality, (b) is known to or developed by the Receiving Party independently without use of the Confidential Information, (c) is or becomes generally known to the public by other than a breach of duty hereunder by the Receiving Party, or (d) has been approved in advance for release by written authorization of the Disclosing Party. The Receiving Party shall protect all Confidential Information by using the highest degree of care to prevent its unauthorized use, dissemination, disclosure or publication, but in no event less than the degree of care the Receiving Party uses to protect its own confidential information of a similar nature. The Receiving Party shall limit access to any Confidential Information only to persons with a bona fide need to know and who have prior to disclosure acknowledged their agreement to be bound by confidentiality obligations substantially similar to those set forth herein. The Receiving Party shall use the Confidential Information only for the purposes of performance of this Agreement. All Confidential Information (and copies thereof) shall remain the property of the Disclosing Party. Immediately upon the receipt of written demand or at the expiration or termination of this Agreement, the Receiving Party shall discontinue all use of the Confidential Information provided to it, and return or destroy all Confidential Information in its possession.
  12. Data. Customer acknowledges that the Software may be used to process certain information that may be regulated by privacy or data protection laws. Freetouch shall act only on Customer’s instructions in processing Personal Data (if any) that Customer supplies to Freetouch. As used herein, the term “Personal Data” means any information identifiable to a specific individual or corporate entity. Customer hereby instructs Freetouch to take such steps in the processing of Personal Data as are reasonably necessary to the performance of Freetouch’s obligations under this Agreement, and agrees that such instructions constitute Customer’s full and complete instructions as to the means by which Personal Data shall be processed by Freetouch. To the extent that any privacy or data protection laws grant an individual a right to request access to or correction of their Personal Data and such request is received directly by Freetouch, Freetouch shall, to the extent permitted by law, forward such request to the Customer and Customer shall satisfy such obligations. Freetouch agrees that it shall: (i) not use Personal Data except for the purposes of providing the Software as contemplated by this Agreement; (ii) implement security measures reasonably designed to safeguard Personal Data against unauthorized access, loss, destruction, damage or disclosure; and (iii) provide reasonable support to Customer, at Customer’s cost, in complying with any legally mandated request or demand made by any court or governmental authority responsible for enforcing privacy or data protection laws. Freetouch may transfer Personal Data to its successor or acquirer in a merger, acquisition or other consolidation, including without limitation the sale of all or substantially all of Freetouch’s stock or assets or business to which this Agreement apply. Notwithstanding the foregoing, Freetouch shall own usage data collected and derived from the operation of the Software, including data regarding the web applications utilized in connection with the Software, configurations, log data, and the performance results for the Software (“Usage Data”) and any data regarding Customer’s customers or their devices to the extent such data is obtained directly by Freetouch from such customers or their devices through their use of the Software via their devices. Nothing herein shall be construed as prohibiting Freetouch from utilizing the Usage Data to optimize and improve the Software or otherwise operate Freetouch’s business; provided that if Freetouch provides Usage Data to third parties, such Usage Data shall be de-identified and presented in the aggregate so that it will not disclose the identity of Customer or any end user(s) to any third party. 
  13. Feedback. Freetouch shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Software any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or its customers relating to the features, functionality or operation of the Software. Freetouch shall have no obligation to use Feedback, and Customer shall have no obligation to provide Feedback.
  14. Warranty Disclaimer. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS”. FREETOUCH MAKES NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE FOREGOING, OR THEIR USE OR PERFORMANCE, INCLUDING WITHOUT LIMITATION TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, FREETOUCH MAKES NO WARRANTIES THAT THE SOFTWARE WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES, OR THAT IT WILL MEET ANY OF PARTICIPANT’S REQUIREMENTS. CUSTOMER ACKNOWLEDGES THAT FREETOUCH DOES NOT ENDORSE, REPRESENT OR GUARANTEE THE TRUTHFULNESS, ACCURACY, COMPLETENESS, OR RELIABILITY OF ANY OF DATA OR RESULTS GENERATED BY OR THROUGH THE SOFTWARE, AND THAT CUSTOMER’S USE OF OR RELIANCE ON ANY SUCH DATA OR RESULTS IS AT CUSTOMER’S OWN RISK.
  15. Open Source Code. As used herein, “Open Source Code” means third-party software governed by open source, free or other public licenses. The Software contains Open Source Code. Notices and licenses are provided in the Software and at https://freetou.ch/oss, and are incorporated herein by reference. For Open Source Code included in the Software in executable form, if required by the applicable open source license, Customer may obtain a copy of the corresponding source code upon written request to Freetouch. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, FREETOUCH IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING FROM A CLAIM BY ANY THIRD PARTY THAT ANY OPEN SOURCE CODE INFRINGES ANY PATENT OR COPYRIGHT OR ANY OTHER PROPRIETARY RIGHT.
  16. Limitation of Liabilities. EXCEPT FOR ANY BREACH OF SECTION 11 ABOVE AND ANY INDEMNITY CLAIMS HEREUNDER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL FREETOUCH BE LIABLE FOR ANY LOST PROFITS, LOST DATA, LOSS OF BUSINESS; GOODWILL OR REPUTATION, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES OF ANY KIND, EVEN IF FREETOUCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL FREETOUCH’S TOTAL CUMULATIVE LIABILITY ARISING UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING TORT, CONTRACT, NEGLIGENCE AND STRICT LIABILITY, EXCEED THE ACTUAL FEES PAID BY CUSTOMER FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INITIAL EVENT GIVING RISE TO LIABILITY HEREUNDER. Customer acknowledges and agrees that the foregoing limitations of liability are essential elements of the bargain and that in the absence of such limitations, the financial and other terms of this Agreement would be substantially different.
  17. Indemnity by Freetouch. Freetouch shall indemnify, defend, and hold harmless Customer and its officers, directors, shareholders, employees, and representatives from and against any and all losses, costs, liabilities, judgments, damages and expenses, including without limitation reasonable attorneys’ fees and expenses, arising out of or relating to any claim, action, investigation, proceeding or suit to the extent alleging that the Software or any part thereof infringes any intellectual property right of any third party. Customer shall give Freetouch prompt notice of any such claim, permit Freetouch to control the defense or settlement of the claim, and cooperate fully with such defense or settlement of the claim. Failure to comply with the previous sentence will only relieve Freetouch’s indemnity obligations under this Section 11 to the extent Freetouch can demonstrate material prejudice. In fulfillment of its obligations under this Section 11, Freetouch may, at its expense and option: (a) procure for Customer the right to continue using the Software; (b) replace or modify the Software so it becomes non-infringing; or (c) if neither of these are practical, accept return of the affected Software and grant Customer a refund equal to the license charge paid, less a pro rata depreciation based on the number of months the Software was used by Customer during the applicable year of charges. The foregoing states Freetouch’s entire liability with respect to intellectual property infringement claims regarding the Software. Freetouch will not be liable to Customer for any claim that is based upon use of the Software in modified form (unless modified by Freetouch) or in a manner not contemplated by the Documentation.
  18. Indemnity by Customer. Customer shall indemnify, defend, and hold harmless Freetouch and its officers, directors, shareholders, employees, and representatives, from and against any and all losses, costs, liabilities, judgments, damages and expenses, including without limitation reasonable attorneys’ fees and expenses, arising out of or relating to any claim, action, investigation, proceeding or suit, to the extent arising out of or relating to (i) any use of the Software by or on behalf of Customer (except for intellectual property infringement claims), (ii) any breach of this Agreement by Customer, or (iii) any negligence or willful misconduct of Customer. Freetouch shall give Customer prompt notice of any such claim, permit Customer to control the defense or settlement of the claim, and cooperate fully with such defense or settlement of the claim. Failure to comply with the previous sentence will only relieve Customer’s indemnity obligations under this Section 12 to the extent Customer can demonstrate material prejudice.
  19. Term. The term of this Agreement as it pertains to license granted hereunder commences on the Effective Date and will continue until the conclusion of the period set forth in an applicable Order or as otherwise specified in writing by Freetouch. Upon expiration of the Term, unless otherwise stated on an applicable Order, the Software will automatically renew for additional terms equal in duration to the initial Term (each a “Renewal Term”), unless and until either party gives the other notice of non- renewal at least thirty (30) days prior to the end of the then-current Term or Renewal Term. Fees due under the Renewal Term may be invoiced or charged, at the then current rate, however Fees for the Renewal Term  shall be limited to no more than a ten percent increase on an annual basis.
  20. Termination. Either party may terminate this Agreement and/or any Order by written notice to the other party in the event that (i) such other party materially breaches this Agreement or fails to perform any of its material obligations under this Agreement and does not cure such breach within thirty (30) days of such notice, or (ii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. 
  21. Effect of Termination. Upon termination of this Agreement for any reason, all rights and licences granted to Customer, including all Orders, will immediately terminate and Customer will cease using the Software and Freetouch Confidential Information. Upon termination of this Agreement, Customer will promptly return to Freetouch all copies of Software and Documentation or certify in writing to Freetouch that all copies have been destroyed. Additionally, if Customer disposes of any media containing Software, Customer will ensure that Customer has completely erased or otherwise destroyed any Software stored on such media. Termination for any reason shall not relieve the Customer of the obligation to pay all amounts due existing Orders. Upon any expiration or termination of this Agreement, the obligations and provisions that by their nature survive expiration or termination of this Agreement shall survive such expiration or termination.
  22. Assignment. Neither party may assign this Agreement or any license granted hereunder without the prior written consent of the other party, except that Freetouch may assign this Agreement pursuant to a merger or sale involving all or substantially all of the assets or business of Freetouch.
  23. Audit Rights. Customer hereby acknowledges that Freetouch may audit Customer’s production installation of the Software onsite up to once every six (6) months in order to assess the number of computer systems on which the Software is being used. Freetouch shall provide at least five (5) business days’ notice prior to any such audit, and shall exercise commercially reasonable efforts to schedule such audit at a time convenient to Customer and in such a way as to not disrupt Customer’s business.
  24. Export Controls. Customer shall not export, re-export, import, or transfer access to the Software in violation of any applicable export laws or regulations, and Customer shall not assist or facilitate others in doing any of the foregoing. Customer represents and warrants that Customer is not located in, a resident of, or a citizen of any country to which the United States has embargoed goods. Participant acknowledges that it is Customer’s responsibility to comply with any and all export and import laws.
  25. Governing Law; Venue. This Agreement shall be governed by and construed exclusively under the laws of the state of California without reference to its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement. For any disputes arising under or related to this Agreement, each party agrees to submit to the exclusive and personal jurisdiction of the state courts in San Francisco County, California, and the federal courts in the Northern District of California. The parties hereby consent to such jurisdiction and venue and waive any objection to same.
  26. Publicity. Freetouch may disclose Customer’s name on Freetouch’s customer list, including customer lists that may appear in marketing materials, press releases or on its website, but may not otherwise use or disclose Customer’s name without Customer’s prior written consent. 
  27. Force Majeure. If either party is unable to perform any of its obligations hereunder (other than payment obligations) due to any act of God, fire, casualty, flood, pandemic, war, strike, shortage or any other cause beyond its reasonable control, and if such party uses reasonable efforts to avoid such occurrence and minimize its duration and gives prompt notice to the other party, then the affected party’s performance shall be excused and the time for its performance shall be extended for the period of delay or inability to perform. If the force majeure continues for more than sixty (60) calendar days, then either party may terminate this Agreement for convenience upon written notice to the other party.
  28. Notices. Any notice required or permitted to be given under this Agreement shall be in writing and deemed to be properly given if such notice has been delivered personally, or sent by bonded overnight courier, or mailed by certified or registered United States mail, return receipt requested, with all postage fully prepaid, to the applicable address shown at the beginning of this Agreement or at such other address for which such party gives notice hereunder.
  29. Miscellaneous. The relationship between Freetouch and Customer is that of independent contractors. No delay, omission, or failure to exercise any right or remedy provided for in this Agreement shall be deemed to be a waiver thereof. Each provision of this Agreement is severable; if any provision is declared void, illegal, or unenforceable, such provision shall be modified to the minimum extent necessary to render it valid, legal, and enforceable while effectuating insofar as possible the basic purposes of such provision. The remaining provisions shall remain in full force and effect. No amendment or other purported alteration of this Agreement shall be binding upon the parties unless it is in writing and is signed by the parties’ authorized representatives.
  30. Entire Agreement. This Agreement, together with any applicable Order, is the complete agreement between Freetouch and Customer concerning the Software licensed to Customer, and supersedes any and all prior agreements and representations between Freetouch and Customer related to the same subject matter.