LICENSING AGREEMENT for IDXblue 'Standard'
This Agreement is made this Day, Apr 18, 2024, by and between Clandestine Productions, Inc., d/b/a QBlue.com ("QBlue"), a Florida corporation with its principal place of business at 2530 Meridian Parkway, Durham NC 27713 and Licensee.
WHEREAS, QBlue desires to allow Licensee to use and Licensee desires to use a certain Application owned or leased by QBlue described below for the purposes of providing real estate services by Licensee;
WHEREAS, QBlue has agreed to grant such use and Licensee has agreed to accept such a grant based upon the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, and in consideration of the foregoing recitals, each of which is incorporated in and made a part of this Agreement, the parties hereto, intending to be legally bound, agree as follows:
1. DEFINITIONS
2. LICENSE AND CONDITIONS OF USE
3. FEES AND CHARGES
4. TERM
a. The Term of this Agreement shall be 1 month(s) commencing on the Commencement Date and shall automatically renew for subsequent one-month Terms at the regular rate unless cancelled by either party for any reason in writing at least thirty days before the expiration of the Term.
5. SERVICES AND SUPPORT
a. Upon the execution of this Agreement by QBlue and payment of all setup fees and first month's recurring fees, QBlue shall provision the Application. Provisioning of Application is subject to availability not to exceed 30 days from the receipt of all pertinent and material information from licensee.
b. Upon the execution of this Agreement by QBlue and payment of all setup fees and first month's recurring fees and upon receipt of the Application by QBlue, QBlue will provision the Application. QBlue will notify Licensee upon completion of such process. Any further configuration shall be the responsibility of Licensee unless otherwise stated in this Agreement.
c. Upon the execution of this Agreement by QBlue and payment of all setup fees and first month's recurring fees, QBlue shall provide, at no cost to Licensee, one copy of the Application.
d. QBlue shall provide, at no cost to Licensee, the following types of Licensee support:
1. Basic maintenance of the Software.
2. QBlue shall monitor only the Application's connectivity to the Internet. All other monitoring shall be the responsibility of Licensee.
3. Repairs to or patches for the Software.
4. Periodic backups of appropriate data.
e. All support services other than those set forth in paragraph (f) above shall be performed by QBlue upon payment by Licensee of the support fee set forth herein and on terms and conditions agreed upon by the parties at the time such support services are provided.
f. In no case shall QBlue be responsible for hardware or software diagnostics, application support, server maintenance, data backup or any issue arising from hardware, software or networks installed in, running on or connected to the Application unless stated in this Agreement.
g. Licensee shall be solely responsible for all telephone, computer, and services necessary to access and utilize the backend.
6. EMERGENCIES AND INTERRUPTIONS
a. QBlue shall have the right at any time to take any action it determines to be necessary to protect the safety of its employees, its offices and the Premises and shall be entitled to exercise this right without advance notice to Licensee.
b. QBlue shall have the right to constrain or restrict Licensee's bandwidth for any reason without advance notice to Licensee, including, but not limited to, abnormal spikes in bandwidth demand, usage exceeding that for which Licensee was approved, service concerns or non-payment of charges due under this Agreement.
c. During scheduled and emergency maintenance periods, the Application may be unable to transmit and receive data and Licensee may be unable to access the Web-based GUI. Licensee agrees to cooperate with QBlue during such scheduled and emergency maintenance periods.
d. In case of an interruption or failure of any of the services furnished hereunder, including but not limited to power, back-up power, hvac, transmission and utility and Internet services, QBlue shall use commercially reasonable efforts to restore service as soon as possible. If QBlue elects, it may substitute a reasonably equivalent service.
7. LIMITATION OF LIABILITY
a. In addition to the specific limitations of liability set forth in other paragraphs herein, QBlue shall not in any case be liable for any of the following: (1) the content of the information it did not create passing over its network; (2) unauthorized access or damage to, alteration, theft, destruction or loss of, Licensee's records, information, files or data; (3) economic consequential damages (including lost profits or savings) or incidental damages, even if QBlue is informed of their possibility; (4) claims for damages caused by Licensee; (6) claims against Licensee by any other party; (7) any damage resulting from the use of the Application by Licensee; (8) any decisions, activities or judgements made by domain registrars, including but not limited to denial for transfer of domains, denials for new domains and terminations and holds placed on domains by the domain registrar; or (9) any act or omission of any other party furnishing services and/or products, or the installation and/or removal of any and all Application or supplies.
b. NEITHER PARTY SHALL BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMANCE TO THE EXTENT CAUSED BY CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, LABOR DISPUTES, FIRES OR OTHER CASUALTIES, WEATHER OR NATURAL DISASTERS, DAMAGE TO FACILITIES, OR THE CONDUCT OF THIRD PARTIES ("FORCE MAJEURE").
c. QBLUE SHALL NOT BE HELD LIABLE FOR ANY DAMAGES, INCLUDING THE LOSS OF PROSPECTIVE PROFITS OR ANTICIPATED SALES OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS, OR COMMITMENTS INCURRED IN CONNECTION WITH LICENSEE'S BUSINESS, WHICH RESULT FROM QUALIFIED SERVICE OUTAGES OR ANY OTHER FAILURE OF CONNECTIVITY, EXCEPT THAT LICENSEE'S SOLE REMEDY FOR QUALIFIED SERVICE OUTAGES SHALL BE THE REFUND PROVIDED PURSUANT TO SECTION 8(A) BELOW. QBLUE SHALL NOT BE LIABLE FOR ANY OTHER TYPE OF DOWNTIME OR CONNECTIVITY FAILURE OR SERVICE INTERRUPTION. IN NO CASE SHALL QBLUE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES WITH RESPECT TO ANY CLAIMS REGARDING THE SERVICES TO BE PROVIDED HEREUNDER, EVEN IF IT HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
d. LICENSEE AND ITS EMPLOYEES, AGENTS AND REPRESENTATIVES ASSUME ALL RISK OF USE OF THE APPLICATION AND RELEASES QBLUE AND ITS AGENTS, EMPLOYEES AND REPRESENTATIVES FROM ANY LIABILITY WHATSOEVER ARISING OUT OF ANY DAMAGE, LOSS OR INJURY TO PERSON AND/OR PROPERTY AS A RESULT OF THE USE OR NON-USE OF THE APPLICATION BY LICENSEE.
8. DISCLAIMER OF WARRANTIES
a. Limited Warranty of Connectivity: QBlue will refund the monthly recurring license fee, as defined in Exhibit B, section II(1) below, in the event of a "Qualified Service Outage." For purposes of this Agreement, a Qualified Service Outage shall be defined as a connectivity failure of more than 43 minutes total within a calendar month which failure results from the failure of only the QBlue-owned or leased Application. When calculating the total minutes of connectivity failure resulting only from the failure of the QBlue-owned or -leased and operated Application in one month for purposes of determining whether a Qualified Service Outage has occurred, no single minute shall count towards the 43-minute period unless it is part of a connectivity failure caused by a failure of the QBlue-owned and operated Application which connectivity failure lasted at least 10 consecutive minutes. Under no circumstances shall downtime resulting from the following constitute any or all of a Qualified Service Outage, nor shall QBlue be responsible for interruptions in service caused by the following: 1) non-QBlue operated Application including, but not limited to, Internet NAP failures or congestion (MAE East, MAE West, etc.); 2) non-QBlue backbone failures; 3) Licensee-owned or operated Application, hardware or software; 4) unusual traffic spikes; 5) "denial of service" attacks on Licensee's web sites; 6) acts of God; 7) planned maintenance; or 8) outside security breaches. Refunds pursuant to this section will be issued only upon request by Licensee and upon a determination that a qualified Service Outage, as defined by this section, has occurred. Refund requests must be made within thirty (30) days of the issuance of the invoice that represents the time period during which the Qualified Service Outage took place. Regardless of the number or duration of Qualified Service Outages occurring in one month, refunds are limited to one month's recurring licensee fee, as defined in Exhibit B, section II(1) below, and shall not include bandwidth fees, excess bandwidth fees, setup fees, support charges or other recurring charges.
b. Except as set forth in paragraph 8(a) above, QBLUE DOES NOT WARRANT UNINTERRUPTED OPERATION OF ITS SERVICES OR THE APPLICATION AND DOES NOT WARRANT ANY OF THE SERVICES PROVIDED HEREUNDER AND SPECIFICALLY DISCLAIMS ANY OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSEE ACCEPTS THE APPLICATION "AS IS" AND THE SERVICE PROVIDED BY QBLUE "AS IS / AS AVAILABLE."
9. INDEMNIFICATION
Licensee shall defend, hold harmless and indemnify QBlue from all claims, demands, actions, damages, judgments, expenses and costs (including attorneys' fees) arising out of Licensee's use of the Application.
10. GENERAL PROVISIONS
QBLUE LICENSING AGREEMENT
EXHIBITS FOR IDXblue
EXHIBIT A: THE APPLICATION
Licensee shall have the right to the sole use pursuant to this Agreement of the following Application:
1. Access to the IDXblue application from a single web site.
EXHIBIT B: FEES
Licensee shall pay to QBlue in accordance with the provisions of this Agreement the following amounts:
I.INITIAL SET UP FEES
A. Provisioning of Application Fee: $0.00
B Fees for additional customization of Application that is not available through backend: $125/hr. Licensee must pay all set up fees prior to the ordering of the Application for use.
II. MONTHLY RECURRING FEES
1) License Fees per Month
TOTAL INITIAL MONTHLY LICENSE: $19.99. All Monthly License Fees shall be paid by the date specified in the invoice. REGULAR MONTHLY RATE: $19.99.
2) Bandwidth Fees
Bandwidth fees shall be based on Licensee's total monthly throughput. Licensee shall be entitled to an allotment per month of 10 GB of data transfer ("the monthly allotment"). For data transfer in excess of the monthly allotment, Licensee shall pay $ 6.00 for each GB over Licensee's monthly allotment. If Licensee does not utilize all of the monthly allotment, Licensee shall not receive a refund or prorated billing. Bandwidth Overage Charges are payable in arrears by the date specified in the invoice. QBlue shall have no obligation to provide any type of notice to Licensee when Licensee exceeds the monthly allotment.
III. SUPPORT FEES
Chargeable support activities shall be billed to Licensee at a rate of $125.00 per hour. This charge shall be billed in 1 hour increments with a minimum charge of 1 hour on all chargeable support activities.
IV. ADDITIONAL OPTIONS
Chargeable support activities shall be billed to Licensee at a rate of $125.00 per hour. This charge shall be billed in 1 hour increments with a minimum charge of 1 hour on all chargeable support activities.