Thank you for choosing Timber!
By accepting this agreement, you agree to all of the terms below. If you do not accept and comply with these terms, you may not use the software or its features
1. Parties to the Agreement. This software license and maintenance agreement ("Agreement") is made and entered into on the date the "Let's Get Started" Webform is submitted, between Herkimer LLC ("Licensor"), with its primary office at 2820 Walton Commons West, Suite 140, Madison, Wisconsin, 53718 and your store.
2. License. Licensor grants to Licensee a perpetual, personal, non-exclusive, non-assignable, non-transferable license to use the "Timber" software program described in Exhibit A, in machine readable form only, and all related documentation and manuals delivered to Licensee (collectively referred to as "Software").
3. License Fees. In consideration for this license, Licensee will pay to Licensor the license fees specified in Exhibit A. In the event Licensor incurs any costs including reasonable attorney fees to collect amounts due from Licensee under this Agreement, Licensee shall pay such costs to Licensor.
4. License Restrictions. A Data Vault will be installed and Licensee may use the Software only at Licensee's location(s) listed on Exhibit A. Licensee will use the Software and Data Vault only for its own internal business activities and will not use the Software or Data Vault in connection with the business of any third party. Licensee may not sublicense, lease, rent or otherwise transfer use of the Software or Data Vault to any party. Licensee shall not copy the Software. Licensee shall not modify or alter the Software in any manner. Licensee shall not and shall not permit any third party to translate, reverse engineer, decompile, recompile, update, or modify all or any part of the Software or merge the Software into any other software.
5. Proprietary Rights of Licensor. All patents, copyrights, circuit layouts, mask works, trade secrets, and other proprietary rights in and to the Software are and will remain the exclusive property of Licensor, whether or not specifically recognized or perfected under the laws of the jurisdiction in which the Software is used or licensed. Licensee will not take any action that jeopardizes Licensor’s proprietary rights or acquire any right in the Software. Licensor will own all rights in any copy, translation, modification, adaptation, or derivation of the Software, including any improvement or development thereof. Licensee will obtain, at Licensor’s request, the execution of any instrument that may be appropriate to assign these rights to Licensor or perfect these rights in Licensor’s name. The Data Vault computer shall remain the exclusive property of Licensor, provided, Licensee shall have access to Licensee's inventory data and sales transaction data archive stored on the Data Vault, if needed, at any time.
6.1 Licensee acknowledges the Software is a valuable proprietary product and trade secret of Licensor and that any unauthorized disclosure of the Software could substantially reduce the value of the Software to Licensor or otherwise cause damage well in excess of the license fee paid by Licensee under this Agreement. Consequently, Licensee will not provide, disclose, license or otherwise make available the Software, or any copy, modification, alteration, or enhancement to it, to any person or entity, except Licensee's employees whose sole need and intention is to use the Software for Licensee's internal business activities. Licensee also agrees that it will safeguard all copies of the Software made or held by Licensee from any disclosure or use not authorized by this Agreement. Licensee further agrees it will use its best commercial efforts to ensure that the provisions of this Agreement are not violated by any employee or agent of Licensee. Licensee shall immediately notify Licensor in the event any Software media or documentation is disclosed or becomes lost or stolen. Licensee agrees not to remove or alter any copyright, trade secret or similar notices or any confidential or proprietary legends from Software media or documentation, and Licensee further agrees to reproduce such notices and legends on any copies, alterations, and enhancements of the Software made by or on behalf of Licensee.
6.2 Licensor shall not disclose to third parties without Licensee's prior written consent, any of Licensee's sales transactions or inventory data which resides temporarily or otherwise on the Data Vault. Licensee shall continue to be responsible for all information pertaining to any former or current customer of Licensee, including but not limited to the customer's address, telephone number, and other contact information, account or other identifying numbers or attributes.
7. Maintenance Services. Licensor shall also render services to Licensee to install and maintain the Software including:
• Installation of the Software and Data Vault at Licensee's location(s) listed on Exhibit A by Licensor's trained technician;
• Training of up to three of Licensee's employees by Licensor's technician at the time of installation for a maximum of two (2) hours;
• The Data Vault will be programmed to notify Licensor in the event the Data Vault or Licensee's web store stops responding for longer than one (1) hour and when Licensor is notified of such non-response, Licensor's technician shall contact Licensee to assist in restarting the Software and/or Data Vault from 8:00 a.m. and 5:00 p.m. CST;
• Licensee support by Licensor's representatives by telephone or web conference with such representatives being available between 8:00 a.m. and 5:00 p.m. CST Monday through Friday except holidays, and via email/on-call during weekends;
• Update the Software to accommodate updates or changes to Licensee's point-of-sale system
• In the event of a Data Vault software failure, Licensor will make best commercial efforts to repair it. If no repair is possible, Licensor will provide an updated installation-file for the Licensee to install.
8. Optional Maintenance Services. Licensor shall also provide training to additional employees of Licensee upon Licensee's request for a reasonable fee payable by Licensee.
9. Web Site Hosting and Management of Web Site Content. In consideration of Licensee paying the license fees listed in Exhibit A attached to this Agreement, Licensor shall also host and manage the content of Licensee's "Timber" web site. Licensor shall set up one or more secure payment options for customers using such Licensee's web site.
10. Configuration of Payment Gateway. Licensor will configure Licensee’s Timber Web Store for a payment gateway that is compatible with Licensee’s Merchant Bank Account. All setup, periodic, and transaction-based charges from the Company providing the Payment Gateway service are the responsibility of the Licensee.
11. Termination. Licensee may terminate this Agreement and such termination shall be effective sixty (60) days after the date Licensee provides written notice of such termination to Licensor. Licensor may terminate this Agreement and such termination shall be effective thirty (30) days after the date Licensor provides written notice of such termination to Licensee which notice shall include the reason for such termination, provided, if Licensor's reason for termination is Licensee's breach of this Agreement and such breach may be cured by Licensee and Licensee cures such breach within 30 days of receipt of Licensor's notice of termination, this Agreement shall not terminate but shall, instead, continue. Upon termination, Licensee shall immediately destroy or deliver to Licensor all magnetic tapes, disks, cards, documentation, materials or other media furnished by Licensor and pertaining to the Software and shall also warrant to Licensor's satisfaction that all copies thereof have been returned to Licensor or destroyed.
12. Remedies. Upon the occurrence of a breach of this Agreement by Licensee, Licensor shall be entitled to terminate this Agreement in accordance with Paragraph 11, and seek to recover damages from Licensee, plus Licensor shall be entitled to injunctive relief, specific performance or other equitable remedies in addition to all other remedies available to Licensor at law or equity. Licensee acknowledges that Licensor's remedies at law may be inadequate if the breach by Licensee is related to unauthorized use, disclosure, copying, modifying, reverse engineering, or transfer of the Software, and Licensee hereby waives any objection to Licensor's demand for injunctive relief.
13. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTY.
13.1 The Software is provided to Licensee "AS IS".
13.2 In no event shall Licensor be liable for any special, indirect, incidental, punitive, or consequential damages, including loss of profits, arising from or related to any defect in the Software, Data Vault or web hosting arrangement, or any claim for breach of contract, warranty or negligence. Licensee agrees that Licensor's liability for any claim arising from this Agreement or negligence or strict liability in tort or warranty, regardless of the form of the action, shall not exceed the total license fees paid by Licensee under this Agreement.
13.3 Licensor will certify that the Timber Software and Web server are PCI-compliant on a quarterly basis.
13.4 LICENSOR MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SOFTWARE, DATA VAULT, MAINTENANCE SERVICES OR WEB SITE OR THEIR CONDITION, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE BY LICENSEE.
14. Indemnification. Subject to the limitation of liability set forth in Section 12, Licensor shall defend Licensee in connection with any third-party claims based on infringement of valid United States copyrights and patents held by such third parties, which claims arise out of Licensee's use of the Software and indemnify Licensee for any damage award finally awarded against Licensee, provided, Licensor receives (i) prompt written notice of such claim, and (ii) Licensee's full cooperation and assistance to defend or settle such claims. The foregoing indemnity will not apply if and to the extent that any alleged infringement arises as a result of alterations or modifications to the Software or mis-use of the Software by Licensee including in connection with other computer products.
15. Amendments. No amendment, modification or supplement to this Agreement shall be valid unless in writing and signed by the authorized representatives of both parties.
16. Notices. All notices to be given pursuant to this Agreement shall be deemed to have been delivered if (a) deposited in the U.S. Mail, postage prepaid, certified mail, return receipt requested, or (b) sent by overnight mail by a reputable carrier, addressed according to the party's contact information in Exhibit A attached hereto.
17. Survival. The obligations of the parties in All Sections of this Agreement shall survive the termination of this Agreement.
18. Entire Agreement. This Agreement shall constitute the entire agreement between the parties hereto and replaces and supersedes all prior agreements, written and oral, relating to the subject matter hereof.
19. Miscellaneous. If any provision of the Agreement is determined to be invalid or unenforceable, the remaining provisions of the Agreement shall not be affected thereby and shall be binding upon the parties hereto, and such invalid and unenforceable provision shall be limited and curtailed only to the extent necessary for it to be valid and enforceable. All actions or claims, regardless of form, arising out of this Agreement of Licensee's use of the Software, must be brought by Licensee within the one (1) year period following any purported breach of the Agreement.
20. Billing Cycle. The monthly/annual billing cycle will begin on the first of the month after the Timber Website reaches a state of functional completeness and the Licensee completes training. At the request of the Licensee, the billing cycle can be postponed for up to two additional months to allow the Licensee to prepare their inventory and become comfortable using the Website.
Timber is software created and owned by Licensor paired with "DataVault" software which connects a bookstore's existing point of purchase inventory and customer data management system to a web site hosted by Licensor featuring Licensee's inventory, for the purpose of transferring inventory updates between Licensee's point of purchase location and Licensee's web site hosted by Licensor, and for facilitating web site purchases from Licensee's inventory.
Timber also periodically backs up Licensee's inventory data in two ways:
- Dual hard drives running in RAID so that one of them mirrors the other in real-time.
- Nightly backups to alternating locations: even days to one location, and odd days to another.
Installation Cost: $2000.00
Licensee shall pay a monthly license fee based on the number of sales transactions initiated through the web site Licensor hosts for Licensee as provided below: *
|Monthly Transactions||Monthly Cost||Extra Transactions|
*If Licensee opts to pay the license fee on a monthly basis, a one-year minimum term-of-service is required by this contract. If licensee terminates the contract after fewer than 12 months of service, the balance of payments are due to the Licensor at that time.
Licensor shall provide Licensee an invoice each month within five (5) days of the end of each month with the number of transactions which occurred during the previous month through Licensee's "Timber" web site and the total amount due from Licensee. Licensee shall pay each invoice within twenty (20) days of receipt of the invoice. Licensee shall remit payment to Licensor at the address in this Exhibit A.
Licensee may also pay license fees annually as follows by choosing in advance the level applicable to Licensee's web site and paying the annual fee upon receipt of an annual invoice from Licensor:
|Monthly Transactions||Yearly Cost||Extra Transactions|
If licensee terminates the contract after fewer than 12 months of service, no refund will be offered by the Licensor.
Any transaction in addition to the level chosen by Licensee shall be billed to Licensee at the corresponding rate. Licensor shall send Licensee an invoice within five (5) days of the end of each month in which transactions exceed Licensee's chosen level. Within one month of incurring transactions in excess of its chosen monthly level, Licensee may retroactively upgrade its service contract without paying the overage fee for the Licensee's transaction tier.