Vision Smart News: Online Newsroom Software | Public Relations Web Solutions

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Whereas, Licensor owns the Licensed software, namely the collection of computer programs and web applications known as Top Wire Smart News (“Topwire”) as well as the related documentation; and

Whereas, Licensee (hereinafter “You” or “Licensee”) desires to acquire a license to exercise certain license rights with respect to the licensed software and related web applications and enter into this Application and License Agreement (“Agreement”).

NOW, THEREFORE, in consideration of the foregoing recital and the mutual promises set forth herein, Licensor and Licensee agree as follows:

1    Subject to the provisions of this Agreement, Licensor grants to Licensee a one year, personal, non-transferable, non-exclusive license to use the software and related web applications collectively known as Topwire or the Service, solely for Licensee’s business marketing purposes in the United States.

2.    Licensee shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service in any way; (ii) modify or make derivative works based upon the Service or the Content; or (iii) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. Any other right not expressly granted to you herein is reserved by Topwire.

3.    As part of the Service, Topwire will provide Licensee with use of the Service, including a newsroom framework, a browser interface and data encryption, transmission, access and storage, and with certain new syndication and search engine optimization services. Your entry into this agreement or your use of the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the Topwire’s website incorporated by reference herein, including but not limited to Topwire’s privacy and security policy. For reference, a Definitions section is included at the end of this Agreement.

4    This Agreement commences on the effective date and will remain in effect for an initial term of twelve months (“Initial Term”). Upon the expiration of the Initial Term (or any subsequent renewal term) this Agreement will automatically renew for a successive one year period (“Extended Term”) at Topwire’s then current fees unless a notice of termination has been provided by either party as provided below.  Either party may terminate this Agreement, effective only upon the expiration of the Initial or Extended Term, by notifying the other party in writing of the intent to terminate the Agreement at least 60 days prior expiration of the Initial or Extended Term.  In the event this Agreement is terminated (other by reason of your breach) Topwire will, upon termination, make available to you a file consisting of any articles stored by Topwire for you and you may use those articles as you see fit.  To the extent you have purchased an option under which Topwire provided any of the content of your newsroom, you shall have a continued perpetual license to use such content strictly limited to its display as part of your website.  You agree and acknowledge that Topwire has no obligation to retain your data and may delete same upon the passage of 30 days from termination or the sooner transfer of such data to you.

5.      All use of the license shall be solely by and with regards to a single practice area in a single state (collectively sometimes referred to as an authorized use or user).  Topwire does not own any data, information, articles or other material that you submit to the Service in the course of using the Service (“Customer Data”). You are responsible for all activity occurring under your user accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data and you, not Topwire, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right of use of all Customer Data. You shall notify Topwire immediately of any unauthorized use of any password or your account.

6.      Licensor warrants that it owns all rights title and interest in and to the licensed programs, that it has the legal power and authority to enter into this agreement and that the licensed programs shall be free from material defects that prevents them from functioning as intended and that any services provided by licensor under this agreement shall be performed in a workmanlike manner and in accordance with the prevailing professional standards of the software industry.  This warranty shall expire upon the expiration or sooner termination of this Agreement.

7.     Licensor does not warrant that the operation of the licensed programs will be uninterrupted or error free.  TOPWIRE’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. TOPWIRE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.  Client acknowledges that search engines may at any time, change their ranking algorithms, exclude sites from their lists or change their policies, that there is considerable competition from other parties with respect to certain keywords and that search engine optimization and that article syndication can only occur when content is submitted to the service. Inclusive of but not limited to these reasons, Topwire can not guarantee a specific ranking on any search engine or any particular placement of syndicated content from your newsroom.  Any and all warranties and claims shall be void as to the licensed programs when the noncompliance is caused by the acts and omissions or breaches of this Agreement by licensee personnel, the actions of licensee’s agents or by the actions of third parties.

8.      The parties recognize and agree that their rights and obligations under paragraph(s) 2, 12, 16 and 17(i) and 17(iii) of this Agreement survive the cancellation, termination or expiration of this Agreement or of the license granted under paragraph 1.

9.      Neither party shall be responsible for any delay or failure in the performance of any part of this Agreement to the extent such delay or failure is caused by fire, flood, explosion, war, embargo, government requirement, civil or military authority, act of god, act or omission of any carrier including internet service providers or other similar causes beyond its control.  If any such event of force majeure occurs and continues for more than 90 days, the party delayed or unable to perform shall give notice of such condition to the other party, and the performance of the Agreements shall resume when the condition ceases.  The affected party shall have the option to extend the period of the Agreement for a period up to the length of time that the condition continued.

10.      This Agreement is entered into solely for the benefit of licensor and licensee.  No third party shall have the right to make or assert any claim under it and no third party shall be deemed a beneficiary of any part of this agreement.

11.     Topwire’s privacy and security policy may be viewed and downloaded at the following URL:    Topwire reserves the right to modify its privacy and security policy in its reasonable discretion from time to time.

12.      Topwire alone shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Topwire software and web applications, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Topwire Technology or the Intellectual Property Rights owned by Topwire. The Topwire name and logos and the product names associated with the Service are claimed as trademarks of Topwire LLC and no right or license is granted to use them.
13.     You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Payments shall be made as provided on the fee schedule set forth on the top of this Agreement or as otherwise mutually agreed upon. You are responsible for paying for the license granted hereunder for the entire term, whether or not the software and web applications are used.  You agree to provide accurate contact information and to update this information within 30 days of any change to it.  If you believe your bill is incorrect, you must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.

14.     In addition to any other rights granted to Topwire herein, Topwire reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection including reasonable attorney’s fees. You will continue to be charged for services during any period of suspension. If you or Topwire initiates termination of this Agreement, you will be obligated to pay the balance due on your account and you agree that Topwire may bill you for such unpaid fees.

15.     Any breach of your payment obligations or unauthorized use of the Topwire Service will be deemed a material breach of this Agreement. Topwire, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. You agree and acknowledge that Topwire has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.

16.     You shall indemnify and hold Topwire, and its parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Customer Data infringes the rights of, or has caused harm to, a third party; or (ii) a claim arising from the breach by you or your users of this Agreement.

17.    Topwire shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with a claim alleging that the Topwire Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party.

18.     EXCEPT AS EXPRESSLY SET FORTH ABOVE, TOPWIRE MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE. TOPWIRE DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, (B) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (C) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (D) ERRORS OR DEFECTS WILL BE CORRECTED, OR (E) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSEARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY TOPWIRE.

19.     EXCEPT WITH REGARDS TO THE INDEMNIFICATION PROVISIONS SET FORTH IN PARGRAPHS 16 AND 17, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY HEREUNDER EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT STORED OR SENT THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

20.     Topwire may give notice by electronic mail to your e-mail address on record in Topwire’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in Topwire’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Topwire (such notice shall be deemed given when received by Topwire) at any time by any of the following: letter sent by confirmed facsimile to Topwire at the following fax number: __________________; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Topwire’s address as noted above.

21.     Topwire reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon the commencement of a renewal of your service hereunder by sending you notice of the existence of an updated Agreement and the inclusion of a URL in such notice at which the updated Agreement is posted in full. Your renewal of the service after any such changes shall constitute your consent to such changes.

22.     This Agreement may not be assigned by you without the prior written approval of Topwire but may be assigned without your consent by Topwire to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.

23.     This Agreement shall be governed by Texas law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Dallas County, Texas.  The parties agree that any such matter will be tried before the Judge of the Court to which such matter is assigned, thereby waiving their right to a trial by jury in any such proceeding.  No text or information set forth on any other purchase order, preprinted form or document shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a Court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Topwire as a result of this agreement or use of the Service. The failure of Topwire to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Topwire in writing. This Agreement comprises the entire agreement between you and Topwire and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

24.     As used in this Agreement: “Agreement” means the terms set forth in this document, and any materials available on the Topwire website specifically incorporated by reference herein, as such materials may be updated by Topwire from time; “Customer Data” means any data, information or material provided or submitted by you to the Service in the course of using the Service; “Effective Date” means the date this Agreement is accepted by parties hereto or the date on which you first use the service, whichever is first; “Initial Term” means the initial period during which you are obligated to pay for the Service; “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world; “Topwire Technology” means all of Topwire’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you or used for you by Topwire in providing the Service; “Service(s)” means the specific applications of Topwire’s  services identified during the ordering process, developed, operated, and maintained by Topwire, and provided by Topwire to you as and when you submit content to your newsroom page, along with other ancillary services rendered to you by Topwire, to which you are being granted access under this Agreement.,

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