CORPORATE SUBSCRIPTION AGREEMENT

THIS CORPORATE SUBSCRIPTION AGREEMENT (“Agreement”) is entered by and between Heritage Appraisal Software, LLC, an Ohio limited liability company (“HAS”) and *Full Company Name*, an Ohio corporation (“Appraisal Company”), and effective as of January 1, 2014 (“Effective Date”).

Recitals:

  1. Appraisal Company is a jewelry appraisal company.
  2. HAS provides on-line services to businesses in the jewelry appraisal industry.
  3. Appraisal Company wishes to subscribe to the specific Services defined herein, and HAS wishes to provide the Services, on the terms and conditions set forth herein.

NOW, THEREFORE, for the mutual consideration and covenants set forth herein, the parties hereby agree as follows:

Agreement

1. Services. HAS shall provide the services described in Exhibit A (“Services”) on the terms and conditions set forth herein.

2.  Subscription.

A. Authorized Users. Appraisal Company may authorize individuals to access the Services by using the on-line authorization process established by HAS (“Users”). Users are described in Exhibit A and may be classified as

i.  Appraisal Company employees (“Appraisal Company Employees”); or
ii. Appraisal Company appraisal clients (“Appraisal Company Clients”).
B. EUSA Acceptance. Upon registering to access the Services, each User shall be required to accept HAS’s updated End User Service Agreement (“EUSA”) and other User policies associated with the Services.
C. Changes to Services Software. HAS may make standard updates or modifications to the software used to provide the Services or any other HAS software with or without notifying Appraisal Company or any User.
D. Support.
i. Direct Support. HAS shall provide direct support services to Appraisal Company Employees and Appraisal Company Clients.
ii. Training. HAS shall provide training to Appraisal Company employees as described in Exhibit A.
3.  End User Service Agreement (EUSA). Each User will be required to acknowledge and agree to the HAS EUSA before accessing the Services. HAS may modify or update the EUSA in accordance with the terms set forth in the EUSA, and each User shall be bound to the terms of such modification or update, which shall be available through the Services and posted at http://heritage-appraisers.com/loupe/. Any question or dispute arising from a conflict among the provisions of this Agreement, the EUSA or any HAS policy incorporated through the EUSA, shall be resolved in favor of this Agreement.
4. Fees and Payment.
A.  Fees. Appraisal Company shall pay a fixed monthly base rate of $ 149.99 (“Base Rate”) for up to 2 User.  In addition, Appraisal Company shall pay a monthly fee of $49.99 for each additional User after (“User Fee”). HAS shall provide Direct Support and Training at no additional charge. The Base Rate and User Fee are referenced as the “Fees.”
B.  Invoices. HAS issues invoices monthly. Invoices shall include a reference to the quotes constituting the basis of the Quote Charge. Payment is due within thirty (30) days of delivery of HAS’s invoice. Unpaid, overdue amounts for Services performed shall accrue interest at the rate of one and one-half percent (1-1/2%) per month.
5. Term; Termination.
A. This Agreement shall be effective as of the date first set forth above (“Effective Date”) and shall continue for a term of two years (“Term”). Unless this Agreement is otherwise terminated in accordance with its terms, and provided neither party is in default of this Agreement, the Term shall automatically renew for an additional two years. If, no less than 90 days before the end of the then-current Term, Appraisal Company or HAS notifies the other party that this Agreement will terminate at the end of the current term, the Term will not be automatically renewed.
B.  If Appraisal Company fails to pay any invoice when due, HAS may deliver a notice of default to Appraisal Company. If Appraisal Company fails to pay all amounts due within five (5) days of such notice of default, HAS may, in its sole discretion, seek any remedy available in law or equity, including exercising complete or partial suspension of the Services or this Agreement. Notwithstanding the foregoing, HAS shall not terminate this Agreement or shut down access to the Services for all Users as a result of Appraisal Company’s monetary default unless a notice of default remains uncured for more than sixty (60) days.
C. Either party may terminate this Agreement or any of the Services upon any of the following events (“termination for cause”):  (i) material breach of this Agreement (other than nonpayment by Appraisal Company) which is not cured within ten (10) days of written notice from the non-breaching party; (ii) institution of bankruptcy, insolvency or receivership proceedings by or against a party, or an admission of a party of its inability to pay its debts as they become due; or (iii) commencement by a party of any steps toward liquidation, dissolution or winding up of its affairs.  In the case of subsections (ii) and (iii) above, such Party may terminate this Agreement immediately upon written notice to the other party.
  1. Appraisal Company may terminate this Agreement and the Services (in whole and not in part), by ninety (90) days’ notice, provided Appraisal Company is not subject to any of the conditions that constitute termination for cause.
  2. Upon termination of this Agreement, accounts associated with Appraisal Company Employees will be terminated. Accounts associated with Appraisal Company Clients will remain accessible for 60 days after the termination of this Agreement.
  1. Survival. The following provisions shall survive expiration or termination of this Agreement: 3, (EUSA); 7 (Ownership); 8 (Aggregate Data); 11 (Confidential Information); 12 (Warranty); 13 (Limitation of Liability); and 14 (Miscellaneous).
  2. Ownership. HAS owns and retains all right, title, and interest in and to the Services, including without limitation all related source code used to provide the Services, as well as the copyright and trademark rights associated with the Services. Nothing in this Agreement or the provision of Services shall be construed as a transfer or exclusive license of any of HAS’s copyright or intellectual property interests. Appraisal Company hereby grants HAS a nonexclusive, royalty-free license to use information furnished by Appraisal Company to the extent necessary to provide Services in accordance with this Agreement.
8.  Development and Use of Aggregated Data. HAS may use non-identifiable anonymous data that is taken from information submitted by Appraisal Company or any User and combine it with other anonymous data to create what is referred to as “Aggregate Data.” HAS is the exclusive developer and owner of Aggregate Data, and may disclose it to third parties. Aggregate Data is information that may indicate business trends, usage patterns, and/or demographics of Users as a group, and may be used to determine such things as efficiency of the Services, User demographics, and usage patterns for our services; but in no case shall Aggregate Data identify particular Users or subscribers. HAS may use Aggregate Data to analyze, modify, and improve the Services; to develop other programs and services; and to market HAS’s services.
  1. Authorized Use. Appraisal Company shall authorize access to the Services solely for the purpose of preparing appraisals for Appraisal Company Clients. Appraisal Company shall not reproduce, distribute, display, or reverse engineer any part of the Services without the express written authorization of HAS. HAS reserves the right to audit subscriptions at any time without notice to Appraisal Company.
  2. Responsibility for Appraisal Data. Appraisal Company shall be solely responsible for the accuracy, formatting, integrity, and legality of the data and information submitted to HAS through the Services by Appraisal Company and its authorized Users.
  3. Confidential Information. The parties may, from time to time, communicate to, or expose the other to, certain nonpublic information or know-how to enable the other to efficiently perform its obligations under this Agreement (“Confidential Information”).  The parties shall treat all such information as confidential, whether or not so identified, and shall disclose Confidential Information only to those employees and agents who need to know such Confidential Information, and only to the extent necessary to perform the services or exercise their rights under this Agreement.
    1. The obligations of this Section 11 shall not apply, however, to the following:
i. Information that, at the time of the disclosure, is in the public domain, through no fault of the non-disclosing party;
ii. Information that is published publicly or otherwise becomes part of the public domain through no fault of the disclosing party;
iii. Information in the rightful possession of the non-disclosing party at the time of disclosure, provided the non-disclosing party did not receive such information in violation of a separate nondisclosure obligation;
iv. Information disclosed by a third party that had the lawful right to disclose such information; or

v. Information independently developed by the non-disclosing party without reference to the disclosing party’s information.

B.  Additionally, either party may disclose confidential information to the extent required by law or order of court or governmental agency, provided however, that the disclosing party must (unless restricted by law) give the non-disclosing party prompt notice in order that the non-disclosing party may seek a protective order.

C.  Each party must return any tangible Confidential Information belonging to the other party, including without limitation all copies, translations, interpretations, derivative works and adaptations thereof, as soon as reasonably practicable under the circumstances upon written request, and in any event upon termination of this Agreement.
  1. Warranty. HAS warrants that the Services shall perform materially as described in Exhibit A. HAS warrants that the Services do not infringe on the intellectual property rights of any third party.THIS WARRANTY IS IN LIEU OF ANY OTHER WARRANTY OF ANY KIND, WHETHER IMPLIED, STATUTORY OR OTHERWISE. HAS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
  2. Limitation of Liability. In no event shall either party be liable to the other party for incidental, consequential, or punitive damages, including lost profits or lost business opportunities. In no event shall either party’s liability to the other exceed the cost of the particular provision of Services that gave rise to such liability. The limitations set forth in this paragraph shall apply regardless of the cause of action, whether in contract, tort, warranty, indemnity, or otherwise.14.  Miscellaneous.
  1. Independent Contractor. Nothing in this Agreement shall be construed to create an employment arrangement. No person employed or engaged by either party shall be considered employees of the other party for any purpose whatsoever. Each party represents that it controls or has the right to control its own personnel, is responsible for compensating its personnel, and is responsible for all tax and withholding obligations with regard to its personnel.
  2. Notice. Notices, reports, invoices, and other communications required under this Agreement shall be in writing, and delivered in person, by certified US mail, or electronic mail acknowledged by read-receipt, to the following representatives of the parties:

*Full Company Name*
*Company Address*
Attn: *Company Contact*

Heritage Appraisal Software, LLC
23600 Mercantile Dr., Building C, Suite 102
Beachwood, OH 44122
Attn: Stephen E. Lott, Sr., President

  1. No Waiver. No delay on the part of either party in exercising any right hereunder shall operate as a waiver thereof, nor shall any waiver on the part of either party of any right hereunder, nor any single or partial exercise of any right hereunder, preclude any other or further exercise thereof or the exercise of any other right hereunder.  The rights and remedies provided herein are cumulative and are not exclusive of any rights or remedies that either party may otherwise have at law or in equity.
  2. Severability. The provisions of this Agreement are independent of and separate and severable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.
  3. Parties Bound. This Agreement is intended to bind all of the parties hereto and their respective successors and assigns.
  4. Assignment. Neither party may assign its rights or obligations under this Agreement to any third party without the written consent of the other party.
  5. Remedies. Any right or remedy of either Party set forth in this Agreement shall not be exclusive, and, in addition thereto, both Parties shall have all rights and remedies under applicable law, including without limitation, equitable relief.
  6. Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter addressed herein and supersedes all prior agreements, written or oral, with respect thereto. This Agreement may be amended or modified and the terms and conditions hereof may be waived, only by a written instrument signed by the parties or, in the case of waiver, by the party waiving compliance.
  7. Governing Law. This Agreement shall be governed by the laws of the State of Ohio, excluding conflict of law rules.  With respect to any dispute arising out of, under, or in connection with this Agreement or the transactions contemplated hereby, the parties hereby irrevocably and unconditionally submit to the exclusive jurisdiction and venue of the state or federal courts of competent jurisdiction sitting in Cleveland, Ohio.
  8. Counterparts. This Agreement may be executed in multiple counterparts, including by facsimile, each of which shall be deemed an original.

 

 

The parties have executed this Agreement as of the date first set forth above.

*Full Company Name*

*Company Contact*

Title:
Heritage Appraisal Software, LLC
Stephen E. Lott, Sr., President