Master License Agreement
This Master License Agreement (“Agreement”) is entered into as of the earlier of your signature date or your subscription start date between SmartProcure, Inc., a Delaware corporation d/b/a GovSpend, (“GovSpend”), and the specific person or entity identified as the Subscriber in the associated Order Form (as defined below).
This Agreement governs the use of all Licensed Materials provided by GovSpend in connection with this Agreement. By clicking acceptance, accessing, or otherwise using any part of the “Licensed Materials” (as defined in the Order Form), or by assenting to the terms of this Agreement in any other manner, you confirm you are authorized to bind the Subscriber to this Agreement, and Subscriber accepts and unequivocally agrees to be bound by all the terms and conditions of this Agreement.
In exchange for the covenants exchanged herein and for other good and valuable consideration, the receipt and sufficiency of which each party acknowledges, the parties agree as follows:
- a) Initial Subscription. GovSpend shall deliver to Subscriber an Order Form, which shall identify the Licensed Materials, applicable subscription fees, and other applicable terms and conditions (the “Order Form”). Executing and submitting the Order Form constitutes agreement by Subscriber to subscribe to the Licensed Materials in accordance with the terms in the Order Form and the terms of this Agreement. In the event of a conflict between the Order Form and this Agreement, the Order Form will control. GovSpend expressly rejects any additional or different terms, including but not limited to terms added or appended to the Order Form by Subscriber, unless agreed to in writing by both parties. The person executing the Order Form on behalf of Subscriber represents and warrants that he/she does so with the authority to bind Subscriber by executing and submitting such documents. Except as is stated to the contrary in the Order Form, payments are nonrefundable, and are due in full within thirty (30) days of the date of Subscriber’s invoice.
- b) Authorized Users. The rights granted herein are granted only to Subscriber, solely for the internal business use by the “Authorized Users” (as defined on the Order Form), and do not extend to Subscriber’s shareholders, parents, subsidiaries, affiliates or other related entities or persons not included in the definitions of Subscriber and Authorized Users on the Order Form. Such related affiliates or persons must execute a separate Order Form to use the Licensed Materials.
- a) Ownership of the Licensed Materials. The Licensed Materials are proprietary products protected by copyright and copyright infringement laws, trade secret acts, and other applicable intellectual property rights. Subscriber acknowledges and agrees that: (i) the Licensed Materials are valuable property and a trade secret of GovSpend; (ii) the Licensed Materials include GovSpend’s trade secrets; (iii) the Licensed Materials are an original work of authorship or compilation pursuant to the copyright law of the United States and other jurisdictions; and (iv) GovSpend has dedicated substantial resources to create, collect, manage, and compile the Licensed Materials. To the extent that Subscriber is deemed to own any right, title, or interest, including, without limitation, any intellectual property rights, in or to the Licensed Materials, or any authorized or unauthorized modifications, updates, work product, improvements, upgrades, enhancements, adaptations or derivative works of, to or based upon the Licensed Materials, Subscriber assigns all such right, title or interest to GovSpend.
- b) Covenant Not to Infringe. Subscriber acquires only a right to use the Licensed Materials as authorized herein. Subscriber agrees not to contest or challenge GovSpend’s or its third-party suppliers’ ownership of the Licensed Materials and associated intellectual property rights, and not to take any action that would infringe, misappropriate, constitute unfair competition with respect to, or otherwise violate GovSpend’s ownership of or rights in, the Licensed Materials. Subscriber further agrees not to accept or receive information from a third party that is known to Subscriber to be provided by such third party in violation of (i) GovSpend’s copyright or proprietary interests in such information or (ii) GovSpend’s licensing agreement with the third party.
3. Subscriber’s Representations and Warranties.
- a) Acknowledgement of Rights. Each time Subscriber accesses or uses the Licensed Materials, Subscriber is representing, warranting, and agreeing (i) it will abide by this Agreement; (ii) it will not use (or authorize the use of) the Licensed Materials in any manner or for any purpose that would violate this Agreement; and (iii) using the Licensed Materials does not grant Subscriber any ownership or property rights, intellectual, or otherwise, in the Licensed Materials. Subscriber further understands and agrees that it may not (i) use the Licensed Materials in any manner inconsistent with the rights of any individual or entity that makes its content publicly available or specifically available to GovSpend and (ii) remove, obscure, or alter any copyright, trademark, proprietary right, or other legal notices displayed in or along with the Licensed Materials.
- b) Compliance with Applicable Laws. Subscriber understands and agrees that it (i) must comply with all applicable international, federal, state, and local laws, rules, and regulations with respect to Subscriber’s use of the Licensed Materials and (ii) is responsible for assessing whether the Licensed Materials are appropriate for Subscriber’s use with respect to Subscriber’s obligations under any applicable laws or regulations. Subscriber agrees to indemnify, defend, and hold GovSpend harmless from any claim, demand, damage, or other harm based on or otherwise resulting from Subscriber’s use of the Licensed Materials in violation of any applicable laws, rules, or regulations.
4. Subscriber’s Access Obligations.
- a) Passwords. Subscriber agrees it will not share its password(s) with any other person or entity without GovSpend’s explicit, written, permission. Subscriber may only allow Authorized Users, as defined in the Order Form to access the Licensed Materials; if any Authorized User separates from the entity, Subscriber agrees it will change the password previously used by that Authorized User to access the Licensed Materials. Passwords are subject to cancellation or suspension by GovSpend due to inactivity or at any time that GovSpend has a reasonable belief that such password(s) is being misused or if Subscriber has breached this Agreement. The reissuance or reactivation of any password(s) shall be at GovSpend’s sole discretion. Subscriber assumes all responsibility for any claim, demand, damage, or other harm resulting from any other party obtaining any of Subscriber’s passwords and further agrees to indemnify, defend, and hold GovSpend harmless from any claim, demand, damage, or other harm based on or otherwise resulting from any other party obtaining any of Subscriber’s passwords. If Subscriber learns of any unauthorized use of Subscriber’s passwords, account, or content Subscriber obtained, it shall notify GovSpend immediately at security@GovSpend.us.
- b) Unauthorized Access Methods. Subscriber understands and agrees it may not access the Licensed Materials using any automated scripts or process, including but not limited to any robot, spider, crawler, data scraper, or other extraction tool. Subscriber further understands and agrees it may not interact with the Licensed Materials using any method other than the user interface and the instructions GovSpend provides. Likewise, Subscriber agrees it will not use any device, software, or routine to bypass GovSpend’s robot exclusion headers or meta tags, otherwise interfere or attempt to interfere with the proper working of the Licensed Materials, or take any other action calculated or reasonably likely to impose a burden on the Licensed Materials or its user interface. Subscriber further understands and agrees (i) it may not attempt to modify, decompile, reverse engineer, or otherwise attempt to gain access to any technology or source code underlying the Licensed Materials or its user interface (ii) that any access of the Licensed Materials or its user interface in any manner inconsistent with this Agreement shall constitute unauthorized access for purposes of state and federal law, including but not limited to the Computer Fraud and Abuse Act.
5. Authorized and Prohibited Uses.
- a) License Grant. Subject to the terms and conditions of this Agreement and the applicable Order Form or other similar agreement entered into between Subscriber and GovSpend that incorporates this Agreement, GovSpend grants Subscriber a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the term of the applicable subscription, to use the Licensed Materials internally by Subscriber’s Authorized Users solely for Subscriber’s own internal business purposes as set forth in this Agreement and the applicable Order Form. No right or license is granted except by an express license granted hereunder. Except as provided in Section 9, Subscriber may not terminate the license prior to the end of any subscription term for any reason, including non-use.
- b) Limited Excerpts. The Licensed Materials are intended exclusively for Subscriber’s use; provided, however, Subscriber may share limited, insubstantial excerpts from the Licensed Materials (“Limited Excerpts”) with relevant decision-makers employed by the Subscriber who may not be included as Authorized Users, provided that Limited Excerpts must (i) only be shared in support of Subscriber’s primary business; (ii) not be shared in a manner that would be competitive with GovSpend’s products; (ii) not serve as a substitute for a subscription to GovSpend’s products; and (iii) cite GovSpend as its source.
- c) Prohibited Sharing. Subscriber understands and agrees it may not sell, rent, or license any of the Licensed Materials to any third party under any circumstance. Subscriber further understands and agrees it may not repackage, distribute, redistribute, license, sublicense, reproduce, transmit, publicly display, publish, adapt, create derivative works from, or otherwise share any of the Licensed Materials for the benefit of any third party under any circumstance, whether or not for profit or a fee, except as permitted in Section 5(b) above.
- d) Export Limits. The Order Form may provide for a limited number of exports of line item, bid, contract, contact, or dashboard search results (excluding attachments) from GovSpend’s data monthly. These line-item exports are intended for the use and consumption of Authorized Users only and are prohibited from being databased in any central repository, shared network location, cloud drive, or CRM system without the express written consent of GovSpend. Line-item export credits expire monthly unless a longer term is agreed to in writing, but in any event, line-item export credits will expire at a date no later than one year from the date of purchase.
- e) Competitive Use. Subscriber understands and agrees it is prohibited from using the Licensed Materials, directly or indirectly, in competition with GovSpend. If GovSpend believes in good faith that Subscriber, either directly or indirectly, (i) is creating, developing, selling, marketing, or licensing products that compete in any manner with the Licensed Materials or (ii) is a consultant to or an investor in any non-publicly traded company which creates, develops, sells, markets, or licenses products that compete in any manner with the Licensed Materials, GovSpend may terminate this Agreement and require that Subscriber immediately discontinue its use of the Licensed Materials and comply with the termination provisions of Section 8(c) hereof.
6. Subscriber’s Content.
- The Licensed Materials may allow Subscriber to submit content in connection with soliciting bids for proposals (“Subscriber Content”). Subscriber may retain ownership of any intellectual property rights, to the extent legally permitted, that Subscriber holds in that content. Subscriber gives GovSpend a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations, or other changes GovSpend makes in order for Subscriber Content to better incorporate into the Licensed Materials), share, communicate, publish, publicly display, and distribute Subscriber Content. This license is irrevocable and continues perpetually even if Subscriber stops using the Licensed Materials or Subscriber’s contract for the License Materials expires or terminates. If Subscriber submits feedback about the Licensed Materials, GovSpend may use Subscriber’s feedback without obligation to Subscriber.
7. Product Updates.
- GovSpend is constantly changing and improving its products and services and reserves the right, in its sole discretion and without prior written notice to Subscriber, to add, modify, reformat, or remove functionalities or features, and GovSpend may suspend or stop components of the Licensed Materials altogether but covenants that in the event of any such action it shall provide to Subscriber for the balance of such subscription term comparable Licensed Materials. GovSpend shall provide Subscriber with reasonably contemporaneous notice of any material changes to the Licensed Materials.
8. Payment, Renewal, and Adjustments.
- a) Payment. In the event Subscriber’s account becomes past due, Subscriber’s access to the Licensed Materials may be suspended, the remaining balance will be considered in default, and the entire account balance will become due and owed immediately. Subscriber also agrees to pay all reasonable collection costs, including attorneys’ fees. A service charge of $25.00 or the maximum amount permitted by applicable law will be charged for all returned checks. Fees are exclusive of any federal, state, or other governmental taxes, however designated, and it is Subscriber’s responsibility to pay such taxes. Subscriber agrees to make all payments identified in its Order Form with GovSpend. While Subscriber can stop using the Licensed Materials at any time, payments are not refundable, and Subscriber will remain liable for any charges due under its Order Form.
- b) Renewal. Prior to the end of the then-current term, GovSpend may provide notice (which may be via email) to Subscriber of any additional terms and the fees applicable for the subsequent renewal term, in the form of an invoice or a new Order Form (“Renewal Notice”). If it is indicated on the Order Form that the subscription term automatically renews, the term will continue to renew automatically for consecutive annual terms at the pricing included in the Renewal Notice, provided, however, no renewal will occur if Subscriber provides written notice of non-renewal to cancel@GovSpend.us fifteen (15) days prior to the effective date of any renewal. GovSpend may charge any previously authorized credit card or other accounts only upon such renewal. If it is indicated on the Order Form that the subscription term does not automatically renew, payment of the fee specified in the Renewal Notice constitutes acceptance of GovSpend’s offer to renew the subscription in accordance with the terms of the Renewal Notice, and this Agreement shall renew, and such fees and terms shall be deemed accepted and apply to the renewal term. GovSpend expressly rejects any additional or different terms, including but not limited to terms added or appended to the Renewal Notice by Subscriber. Subscriber shall promptly provide GovSpend with any updates to its billing information so that invoices are properly delivered, and failure to do so shall not affect the renewal process herein.
- c) In the event Subscriber, during the term, directly or indirectly, (i) acquires substantially all of the stock or assets of another GovSpend subscriber, (ii) has substantially all of its stock or assets acquired by another GovSpend subscriber, or (iii) merges with another GovSpend subscriber, GovSpend reserves the right to revise the price hereunder by the most recent subscription price paid by such other GovSpend subscriber. For purposes of this section, an entity shall be considered “another GovSpend subscriber” if it has been an GovSpend subscriber during the six months prior to such acquisition or merger. GovSpend may, in its sole determination, revise the price hereunder to account for the additional usage by any non-subscriber that Licensee acquires, is acquired by or merges with during the term.
- a) Termination for Breach. Either party may terminate this Agreement upon a material or continuing breach by the other by giving thirty (30) days prior written notice of termination, and termination shall be effective at the end of such thirty (30) day period unless the breach is then cured to the satisfaction of the terminating party. A termination pursuant to this Section shall not preclude the recovery of damages permitted by this Agreement by the party not in breach. During any period of time after a party has breached this Agreement, the other party may suspend performance until the breach has been cured.
- b) Termination for Default. Either party may terminate this Agreement immediately in the event of Default by the other. Default includes but is not limited to the following: (i) the Subscriber’s unauthorized assignment or attempted assignment of this Agreement or the rights or obligations hereunder without GovSpend’s prior consent as required herein; (ii) the other party’s assignment or attempted assignment of this Agreement or the Licensed Materials for the benefit of creditors; (iii) if the other party becomes the subject of a proceeding under the bankruptcy laws of the United States; (iv) if Subscriber infringes, misappropriates or violates GovSpend’s intellectual property rights; (v) a breach of Sections 4 or 5; (vi) the Subscriber becomes insolvent or generally fails to pay, or admits its inability to pay, all or a substantial part of its debts as they become due, or applies for or is granted a moratorium; or (vii) a receiver, manager, administrator, liquidator, or other similar officer or practitioner is appointed over the whole or any substantial part of the Subscriber’s business or assets, or any steps are undertaken to that effect in other similar proceedings. A termination pursuant to this Section shall not preclude the recovery of damages or other additional relief permitted by this Agreement by the party not in Default nor shall it relieve Subscriber of its obligation to pay all amounts due pursuant to invoices issued under this Agreement.
- c) Effect of Termination. Upon termination or expiration of Subscriber’s access to the Licensed Materials, Subscriber will (i) cease all attempts to access or use the Licensed Materials and (ii) securely and irretrievably delete all copies of the Licensed Materials (and all copies of authorized and unauthorized modifications, updates, work product, improvements, upgrades, adaptations or derivative works of, to or based upon the Licensed Materials) from any and all data, databases, information, products, services, networks, technology, servers, systems, or computers used, owned or controlled by Subscriber or any of Subscriber’s contractors or affiliates. Subscriber is strictly prohibited from downloading data from the Licensed Materials with the intent of using such data as a substitute for purchasing a license. Upon GovSpend’s request, a duly authorized officer of Subscriber will certify in writing that Subscriber has complied with this section.
10. Warranties, Disclaimers, and Limitations.
- a) Limited Warranty. GovSpend provides the Licensed Materials using a commercially reasonable level of skill and care and arranges them in a way that GovSpend believes will increase the ease of use. However, GovSpend makes no warranty or representation with respect to the accuracy, completeness, currentness, condition, quality, performance, merchantability, or fitness for a particular purpose of the information in the Licensed Materials, and it does not warrant that the interface used to access the Licensed Materials will be error free or bug free. The Licensed Materials may become unavailable from time to time, and Subscriber understands and agrees GovSpend will not be liable for any damages or losses related to any system errors or interruptions affecting the Licensed Materials or access to them. Subscriber further understands and agrees GovSpend is not liable for any delay or failure associated with the Licensed Materials or its user interface that is beyond GovSpend’s control or otherwise. GovSpend does not guarantee to have every open solicitation, and not every bid will have supporting documents. GovSpend is not a bid hosting or submission tool, and some bids require responses by way of email, phone, mail, or by using a separate site which is provided within the bid/RFP details. Further, GovSpend does not manipulate the data collected from the agencies into line-items, which reflect how the various agencies store their purchasing records.
- b) DISCLAIMER. OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS, OR IN ADDITIONAL TERMS GOVSPEND PROVIDES IN A CONTRACT WITH SUBSCRIBER, NEITHER GOVSPEND NOR ITS AFFILIATES, SUPPLIERS OR DISTRIBUTORS MAKE ANY SPECIFIC PROMISES, REPRESENTATIONS OR WARRANTIES ABOUT THE LICENSED MATERIALS. OTHER THAN DESCRIBING IN GENERAL THAT GOVSPEND OFFERS PUBLICLY AVAILABLE PROCUREMENT INFORMATION FROM A VARIETY OF SOURCES, GOVSPEND DOESN’T MAKE ANY COMMITMENTS ABOUT THE CONTENT GOVSPEND PROVIDES. NOR DOES GOVSPEND MAKE ANY COMMITMENT ABOUT THE SPECIFIC FUNCTION OF THE LICENSED MATERIALS, OR THEIR RELIABILITY, AVAILABILITY, OR ABILITY TO MEET SUBSCRIBER’S NEEDS. GOVSPEND PROVIDES THE LICENSED MATERIALS “AS IS”. ADDITIONALLY, THE INFORMATION GOVSPEND PROVIDES ON THIRD PARTY PURCHASES AND RELATED DATA IS GATHERED FROM THIRD PARTY SOURCES INCLUDING PUBLIC RECORDS. GOVSPEND DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY OR COMPLETENESS OF THE INFORMATION. SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, GOVSPEND DISCLAIMS ALL WARRANTIES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (I) GOVSPEND DOES NOT REPRESENT OR WARRANT THAT THE LICENSED MATERIALS OR ACCESS TO THEM WILL BE UNINTERRUPTED OR ERROR-FREE; AND (II) GOVSPEND HAS NO OBLIGATION TO INDEMNIFY SUBSCRIBER AGAINST ANY CLAIM ARISING OUT OF OR RELATED TO THE LICENSED MATERIALS.
- c) LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY LAW, GOVSPEND AND ITS AFFILIATES, AND THEIR RESPECTIVE SUPPLIERS AND DISTRIBUTORS, WILL NOT BE RESPONSIBLE FOR LOST PROFITS OR REVENUES; DATA OR FINANCIAL LOSSES; OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES.
- d) LIMITATION OF REMEDY. TO THE EXTENT PERMITTED BY LAW, THE TOTAL CUMULATIVE LIABILITY OF GOVSPEND AND ITS AFFILIATES, AND THEIR RESPECTIVE SUPPLIERS AND DISTRIBUTORS, FOR ANY AND ALL CLAIMS, LIABILITIES, AND DAMAGES UNDER THIS AGREEMENT, INCLUDING FOR ANY IMPLIED WARRANTIES, IS, IN THE AGGREGATE, LIMITED TO THE AMOUNT SUBSCRIBER PAID GOVSPEND TO USE THE LICENSED MATERIALS IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PROCEEDING THE EVENT THAT CAUSED DAMAGE RELATING TO SUBSCRIBER’S FIRST CLAIM HEREUNDER. WITHOUT LIMITING ANY OTHER LIMITS OR DISCLAIMERS, IN ALL CASES, GOVSPEND AND ITS AFFILIATES AND THEIR RESPECTIVE SUPPLIERS AND DISTRIBUTORS, WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
- a) Entire Agreement. This Agreement (including the associated accepted Order Form or, as applicable, Renewal Notice, and other agreements and notices referenced therein to which Subscriber had access, which are incorporated by reference) is the entire agreement between the parties with respect to its subject matter and controls the relationship between GovSpend and Subscriber and supersedes any prior terms of service applicable to the Licensed Materials. This Agreement may be amended only by a written instrument signed or electronically agreed to by authorized representatives of each party. Subscriber acknowledges and agrees that in entering into this Agreement Subscriber has not relied and is not relying on any representations, warranties, promises, or other statements whatsoever, whether written or oral (from or by GovSpend or any of its affiliates or representatives) other than those expressly set forth in this Agreement and that Subscriber will not have any right or remedy arising out of any representation, warranty, promise, or other statements not expressly set forth in this Agreement.
- b) Third-Party Beneficiary Rights. This Agreement does not create any third-party beneficiary rights.
- c) Waiver. The failure to enforce or delay in enforcing any term of this Agreement shall not constitute a waiver of that or any other term, nor shall it give rise to any defense of acquiescence, waiver, or any other legal or equitable defense. No inference of waiver may be drawn from any failure, refusal, neglect, delay, waiver forbearance, or omission of any party to exercise any right under this Agreement or to insist upon full compliance by the other party with its duties, obligations, or restrictions hereunder.
- d) Enforceability. If any provision contained in this Agreement is held to be unenforceable, it shall be reformed to make it enforceable if possible. If it is not possible to reform the provision to make it enforceable, the provision shall be severed and shall not affect the enforceability of any other provision in this Agreement or any other policy or agreement between Subscriber and GovSpend.
- e) Assignment. Subscriber understands and agrees GovSpend may assign this Agreement and its rights hereunder at any time and that these terms shall be binding upon and inure to the benefit of GovSpend’s successors and assigns. Subscriber may not assign Subscriber’s rights to the Licensed Materials without GovSpend’s explicit written consent, which shall not be unreasonably withheld.
- f) Force Majeure. GovSpend shall have no liability whatsoever for interruptions of service or other breaches of this Agreement due to fire, explosion, lightning, power surge or failure, water or floods, acts of God, war, civil disturbance, acts or omissions of communications carriers, governmental acts, natural disasters, strikes or industrial disputes, political disturbances, epidemics, and all other circumstances which, against its will, prevent or hinder GovSpend from performing its obligations.
- g) Choice of Law, Forum, and Venue. The internal laws of the State of Florida, in the U.S.A., excluding Florida’s conflict of laws rules, will apply to any disputes arising out of or relating to this Agreement or the Licensed Materials. The exclusive forum and venue for all claims arising out of or relating to this Agreement or the Licensed Materials shall be the federal and state courts situated in Palm Beach County, Florida, USA, and Subscriber and GovSpend consent to the personal jurisdiction in those courts. Subscriber waives any opposition to injunctive relief sought by GovSpend in connection with Subscriber’s actual or alleged access, use, or disclosure of the Licensed Materials in violation of this Agreement, as well as any demand that GovSpend prove actual damage or post a bond or other security. The 1980 United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act are hereby disclaimed by the parties.
- h) Survivability. The provisions of Sections 4, 5(c), 5(e), 8(c), 8(d), 10, and 11 shall survive the termination or expiration of this Agreement. Any other obligations under this Agreement which by their nature would continue beyond the termination, cancellation, or expiration of this Agreement shall survive termination or expiration of this Agreement.
Last modified date: 4/26/2023