COACHMEPLUS GOVERNMENT LICENSE
THIS SOFTWARE LICENSE AND SERVICES AGREEMENT (this “Agreement”) is made, effective as of effective date contemplated (the “Effective Date”) in award related to the applicable contract and between Virtuvia, LLC (referred to herein as, “CoachMe”), with its principal place of business at 2495 Main St, Suite 410, Buffalo, NY 14214 and the governmental organization named in the applicable contract.
1.1 “Services” shall mean all support services, training, consulting services and any applicable hosting of the Software.
1.2 “Software” shall mean the CoachMePlus athlete management system, as identified in Exhibits A and related Updates and any and all documentation related thereto.
1.3 “Third-Party Programs” shall mean any other third party programs provided through CoachMe as a part of its Software. The License granted under this Agreement does not provide Licensee any rights to or use of Third-Party Programs independent of the Software.
1.4 “Update” shall mean a subsequent major or minor release of Software or any patch or bug fix that CoachMe makes generally available at no additional charge. Updates shall not include any future product or new modules of the Software which CoachMe offers only for an additional fee.
2.1 License Grant. CoachMe grants, subject to the restrictions set forth in this Agreement, Licensee a personal, non-exclusive and non-transferable, worldwide right and license (“License”) during the Term:
- (i) To have administrative users, coaches, and trainers of Licensee (“Administrative Users”) access, display, perform and otherwise use the Software and Services (including, without limitation, for the purpose of adding, managing, editing and deleting configuration settings and inviting, adding, managing and removing End Users (defined below)), which Software is maintained by CoachMe on Licensee’s behalf;
- (ii) To copy, print, display, and distribute the output from the Software provided that all copies contain all copyright and other applicable notices; and
- (iii) To allow a limited number of users , expressly including athletes, sailors, employees, consultants and/or third party end users designated by Licensee (“End Users”) to access, display, perform and otherwise use the Software solely for its intended purpose of communicating between commanders, nutritionists, coaches, administrators, sailors, and athletes a broad array of training information including strength and conditioning workouts, athletic testing data, video information, nutrition information, surveys, and reporting information from third party measurement devices; the number of End Users shall be limited strictly to the number of End Users required for the testing, design, prototyping, and proof of concept contemplated in the attached proposal.
2.2 License Restrictions. The License granted hereby shall have the following restrictions during the Term:
- (i) Licensee shall not modify or revise the Software, or create any derivative works based on the Software;
- (ii) Licensee shall not (or cause, attempt, or knowingly permit a third party to) reverse-engineer, decompile, disassemble, or translate the Software or otherwise attempt to obtain or access the source code of the Software;
- (iii) Licensee shall not (a) engage in harassing or damaging behaviors while using the Software, (b) defeat or attempt to defeat any security measures placed upon CoachMe’s network infrastructure or on any other connected systems, (c) damage or attempt to damage, hinder or prevent from proper functioning the Software or any system of CoachMe or any connected system or service, (d) forge any IP address information or login information, or (e) post, or request that CoachMe Employees post, any materials of any kind that will violate or infringe upon the intellectual property rights of any third party or contain libelous, defamatory or otherwise unlawful material;
- (iv) Licensee shall not sell, assign, pledge, sublicense, or otherwise transfer any rights or the License of the Software;
- (v) No part of the Software may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, electro-magnetic, mechanical, photocopying, recording, residual recollection, or other means;
- (vi) To the fullest extent permitted by applicable law, Licensee shall not disclose any review or analysis of the Software to any third party, including but not limited to the results of any tests, to any third party without CoachMe’s prior written approval;
- (vii) Licensee agrees to use commercially reasonable efforts communicating the terms and restrictions contained in this Agreement to all persons who have access to the Software through Licensee; and
- (viii) Licensee shall not build a competitive athlete management system intended for sale to third parties which competes with CoachMe.
- (ix) Licensee shall only use the Software for evaluative purposes and for iterative testing, design, and capability demonstration purposes contemplated in the attached proposal. Licensee shall not use the software in a deployed production environment.
2.3 Assignment. Neither this Agreement nor any rights granted hereunder may be sold, assigned, sublicensed, or otherwise transferred by Licensee. All of the terms and conditions of this Agreement are binding upon and inure to the benefit of the parties and their successors and permitted assigns. Any purported assignment in contravention of this section shall be null and void.
3.1 Support Services for Software. CoachMe will provide at no cost during the Term and any subsequent renewals:
- (i) Updates of the Software to the Licensee as it makes same available on a general release basis to its other Software licensees. Licensee shall be notified of available, material updates prior to the publishing of said updates. Such Updates shall include, without limitation, documentation, including operator and user manuals, training materials, guides and specifications, revised to reflect any enhancements made to the Software. Updates do not include any software released by CoachMe that CoachMe reasonably determines to be a separate product or new module distinct from the Software rather than an upgrade to the Software;
- (ii) CoachMe will maintain a trained staff capable of rendering the maintenance services set forth in this Agreement.
- (iii) CoachMe will respond to service telephone calls as quickly as possible based on the severity level established by Licensee and CoachMe and in any event within 24 hours. CoachMe will make every effort to respond with at least a status report, if not a resolution, within four (4) hours of the initial call.
- (iv) CoachMe will use all reasonable diligence to correct verifiable and reproducible defects and errors when reported in accordance with standard reporting procedures. Following completion of defect correction, CoachMe shall provide the appropriate corrections and fixes through modifications of the Software, and CoachMe shall include such corrections and fixes in all subsequent releases of the Software.
- (v) CoachMe shall not be responsible for correcting defects in any version of the Software other than the most recent release of the Software.
3.2 Proprietary Rights.
- (i) Ownership of Digital Information. CoachMe acknowledges that it has no right, title or interest in i) any of Licensee’s messaging information or communication among nutritionists, commanders, coaches, sailors, athletes and trainers, ii) video or video content that the Licensee, Administrative Users or End Users upload into the system, or iii) any athlete information in which the athlete name or team is attached to general workout and test information, all of which shall be considered “Confidential Information.” All Confidential Information provided or made available to, or existing on CoachMe servers is, at the time it is made available and thereafter shall remain, strictly confidential, and shall not be used, disclosed or disseminated in any way by CoachMe other than as is expressly provided in this Section 3.2. Notwithstanding the foregoing, Confidential Information that has been de-identified such that all athlete names, team names, coach’s notes commentary or video, and any other information that would allow a reasonable person to identify individuals or Licensee are removed (“De-Identified Information”) shall not be deemed “Confidential Information”. Such De-Indentified Information may be used by CoachMe solely for sports science research and data warehousing. Confidential Information is the exclusive and valuable property of Licensee and is of a highly confidential nature. The Confidential Information contains confidential, non-public and proprietary information which, if used for purposes other than the Permitted Purpose, would unfairly prejudice and irreparably harm the rights and interests of Licensee. CoachMe acknowledges the foregoing and expressly agrees that it has not used and will not use the Confidential Information for any purpose other than the Permitted Purpose.
- (ii) Ownership of Custom Modifications. To the extent that CoachMe may provide Licensee with any custom modifications, Licensee may use such custom modifications in connection with the Software in a manner consistent with and subject to the requirements of this Agreement for the purposes of Licensee’s internal business needs only. Licensee has no right, title or interest in or to any custom modifications and may not use, copy or modify the custom modifications or any portion thereof.
- (iii) Trademarks. COACHME and all other names, logos, and icons identifying CoachMe’s products and services are proprietary marks of CoachMe and/or its licensors. Except as set forth herein, any use of a CoachMe’s marks shall inure to the benefit of CoachMe.
3.3 Reservation of Rights.
- (i) CoachMe Rights. All rights not granted in this Agreement are reserved by CoachMe. In particular, this Agreement is not a sale of the Software nor is it a transfer or assignment of any rights in the Software. The Software (and any bug fixes, patches, upgrades, or Software Updates thereto) and all inventions, improvements, modifications, enhancements, derivatives, compositions, discoveries, know-how, processes, methodologies, formulas, designs, drawings, data, information, and works of authorship (including reports, drawings, art, schematics, notes, analyses, records, lists and other documents, whether in draft form or final form, and whether in written, electronic or other format) in which any proprietary right exists or may be acquired or asserted anywhere in the world, and which are conceived, made, developed, discovered, written, authored, invented, created, or first reduced to practice by CoachMe or any of its personnel, alone or jointly or with any third party or parties in the course of performing the Services under this Agreement and any patents, patent applications, continuations, continuations-in-part, divisionals, renewals and reissuances, copyrights, trademarks, service marks, trade names, trade dress, trade secrets, design rights, data rights, mask work rights, moral rights, foreign equivalents of any of the foregoing, any other intellectual property rights, registrations of, and applications for, any of the foregoing, and the right to sue for any present or past violation, infringement, or misappropriation of any of the foregoing (collectively, the “CoachMe Intellectual Property”) shall not be considered, and are not, a “work for hire” as determined under United States law and shall remain the property of CoachMe for all purposes and in all respects. CoachMe reserves all rights in and to the CoachMe Intellectual Property. Except as set forth herein for the Software, no other license is granted to Client under this Agreement, by implication or otherwise, with respect to any CoachMe Confidential Information or CoachMe Intellectual Property. Moreover, except as expressly permitted herein, Client may not use the Software on a service bureau basis with any third party or for the benefit of persons or entities other than Licensee and its permitted Administrative Users and End Users. Licensee also agrees that it will not reverse engineer or disassemble or make or cause to be made derivative works of any kind from the CoachMe Intellectual Property and Confidential Information. In addition, Licensee shall not use the Confidential Information or the CoachMe Intellectual Property for the purpose of establishing a separate claim against CoachMe that is unrelated to any breach of the terms and conditions of this Agreement.
- (ii) Government Rights. The use of the Software and any data including, without limitation, its reproduction and display by the United States of America and/or any other country and its or their respective instrumentalities, agencies, or offices, regardless of form (collectively, the “Government”), shall be governed by this Agreement. Accordingly, the Software and data is provided to the Government with LIMITED RIGHTS and/or RESTRICTED RIGHTS (as applicable). Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at D.F.A.R.S. 252.227-7013, subparagraph (g) of the Rights in Data – General clause at 48 C.F.R. 52.227-14, or subparagraphs (b)(1) and (2) of the Commercial Computer Software – Restricted Rights clause at 48 C.F.R. 52.227-19, as applicable. Moreover, all CoachMe products and materials, including the Software and data, are commercial in nature and were not first produced in the performance of any Government contract. Accordingly, the data, software and documentation available through the Software are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are licensed to Government end users (a) only as Commercial Items and (b) with only those rights as are granted to other end users pursuant to the terms and conditions herein. For any use of the Software or CoachMe data that would require compliance by CoachMe with a particular Government requirement not identified herein or that would affect CoachMe’s rights, the applicable Government entity, agency, or office must notify CoachMe of said Government requirement and obtain a waiver or exemption from such requirements for the benefit of CoachMe before any (additional) government access to the Software.
4. TERM AND TERMINATION:
4.1 Term. The term (the “Term”) of this Agreement shall begin on the Effective Date and continue for the period outlined in the contract.
4.2 Handling of Software upon Termination. Upon termination, Licensee shall cease using the applicable Software, and CoachMe shall disable the Software to prevent further use by End Users for business purposes, however, limited access will be provided for not more than seven (7) business days to allow Licensee’s Administrators to participate in the winding down of the site(s) and assist in the migration of End User digital information to portable drives. After such seven (7) day period CoachMe may delete from its servers any and all data and information contained in Licensee’s data file and advise Licensee in writing when such deletion has occurred.
4.3 Copyright of Software. Licensee further acknowledges that the Software is a copyrighted work of CoachMe, and any use of the Software other than as expressly permitted by this Agreement likely constitutes copyright infringement. Termination, therefore, shall not be sole and exclusive remedy available to CoachMe.
5.1 Limited Warranties and Exclusions.
- A. Limited Software and Services Warranty. CoachMe warrants that the Software and Services will during the Term (i) perform in accordance with the then current documentation that CoachMe provides to Licensee, (ii) perform in accordance with any specifications agreed upon by the Parties as expressly set forth in this Agreement, and (iii) with respect to the Services, be performed in a professional, workmanlike manner. Upon receipt of written notice from Licensee, CoachMe shall use its commercially reasonable efforts to correct errors within a reasonable time. This paragraph states Licensee’s sole and exclusive remedies and CoachMe’s entire liability for breach of this paragraph.
- B. Non-infringement. CoachMe warrants that it has not received, and has no knowledge, of any claim or allegation that the Software, or Licensee’s use of the Software, including without limitation the display of the Software’s output on End User’s computers, infringes any United States patent, copyright, trade secret, or trademark enforceable under the laws of the United States.
- C. EXCLUSIONS. THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES FROM A COURSE OF DEALING OR USE OF TRADE. LICENSEE ACKNOWLEDGES THAT, EXCEPT AS PROVIDED IN THIS AGREEMENT, NO REPRESENTATIONS HAVE BEEN MADE RESPECTING THE SOFTWARE OR THE SERVICES PROVIDED, AND THAT LICENSEE HAS NOT RELIED ON ANY REPRESENTATION NOT INCLUDED IN THIS AGREEMENT. COACHME CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SERVICES.
5.2 Force Majeure. Neither party shall be liable for any delays or non-performance of any of its obligations arising out of causes not within such party’s reasonable control, including, without limitation, actions or decrees of governmental authorities, criminal acts of third parties, earthquakes, flood, and other natural disasters, war, terrorism, acts of God, or fire, except to the extent that the delay or non-performance was not reasonably safeguarded against (in accordance with industry standards) or the party had notice. Licensee acknowledges that the Internet may be subject to unscheduled and unannounced outages, disruptions and breakdowns that may not be rectified promptly. CoachMe shall not be responsible for any such unscheduled and unannounced outages, disruptions and breakdowns and any business losses or damages resulting therefrom.
5.3 Additional Warranties. Each party represents and warrants that it has the full power and authority to enter into this Agreement and perform its obligations hereunder. Licensee acknowledges that it has the full right and authority to upload, display, preview and make available for download via the Internet the digital assets, video, workout guidelines, and workout information which its Administrative Users and End Users will upload into Licensee’s instance(s) of the Software.
6. LIMITATION OF LIABILITY:
EXCEPT FOR LIABILITY TO THIRD PARTIES BY WAY OF INDEMNITY AS PROVIDED IN SECTION 5 ABOVE, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS, INCURRED BY THE OTHER PARTY AS A RESULT OF ANY BREACH OF THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS PROVIDED IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE FOR ANY CLAIMS AGAINST THE OTHER PARTY BY THIRD PARTIES. EXCEPT FOR LIABILITY TO THIRD PARTIES BY WAY OF INDEMNITY AS PROVIDED IN SECTION 5, EACH PARTY’S AGGREGATE AND CUMULATIVE LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AVERAGE ANNUAL AMOUNT OF FEES PAID BY LICENSEE (EXCLUDING EXPENSE REIMBURSEMENT) UNDER THIS AGREEMENT. The Parties agree that where injunctive relief is sought it shall be specific to the claim and not with regards to a Party’s general business activities.
7. PAYMENT PROVISIONS:
Fees. Fees shall be the fees outlined in the applicable contract.
8. GENERAL TERMS:
8.1 Confidentiality. CoachMe, its authorized agents, servants and employees agree to maintain, as confidential, any information on its servers that is provided to CoachMe by Licensee concerning Licensee training, procedures, End User personal information and past or future training and training plans.
8.2 Incorporation of Exhibits. All Exhibits to this Agreement are hereby incorporated into this Agreement.
8.3 Notices. All notices required to be sent hereunder shall be in writing and shall be delivered to the respective address set forth above to the attention of the signatory of this Agreement or to such other address and individual as a Party may specify by written notice to the other Party.
8.4 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, such decision shall not affect the validity or enforceability of the Agreement or any of the remaining provisions and this Agreement shall be construed by adding a valid provision which effectuates the intent of the invalid provision as nearly as lawfully possible.
8.5 Relationship Between the Parties. CoachMe is an independent contractor, nothing in this Agreement shall be construed to create a relationship of partnership, joint venture, employment, franchise, or agency between the Parties. Neither Party shall have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
8.6 Entire Agreement. This Agreement, together with any attached Exhibits, which are incorporated by reference, constitutes the complete agreement between the Parties and supersedes all prior or contemporaneous proposals, agreements or representations, written or oral, concerning the subject matter of this Agreement and such Exhibits. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each Party.