This Software License Agreement (“Agreement”), effective as of the Effective Date appearing in the upper right corner of this page (the “Effective Date”), by and between JOHN H. DANIEL COMPANY, a Tennessee corporation with its principal office located at 1803 N. Central St., Knoxville, Tennessee 37917, United States of America d/b/a “John Daniel International™” (“Licensor”) and ANY USER OF THE ATLAS™ APPLICATION, including all of any such user’s subsidiaries and affiliates (“Licensee”). Licensor and Licensee will each be referred to herein individually as a “Party” and jointly as the “Parties.”
RECITALS
A. Licensor manufactures custom tailored suits which are sold retail and wholesale worldwide, via direct sales and sales through retailers and other third parties.
B. Licensor also owns “ATLAS™”, a proprietary web-based order and fulfillment application that allows retailers such as Licensee to place orders for custom garments on behalf of customers by utilizing a stepped, linear order process by selecting their customer, the garment, confirming the customer’s measurements, then selecting the model, fabric/lining, and configuring options (the “Software”). The Software also allows retailers such as Licensee to drape fabric on garment illustrations in real time on top of environmental lifestyle images. Each custom garment configuration can be favorited, downloaded to be sent to a customer, and/or purchased for a customer. Upon any such purchase, an order is transmitted for manufacture/production by Licensor (with simultaneous payment being made by such customer to Licensor upon submission of the order).
C. Licensee is one of many retailers that is currently selling or desires to sell custom tailored garments manufactured by Licensor, and, to that end, wishes to utilize the Software to generate orders for custom garments for Licensee’s customers to be manufactured by Licensor.
D. ATLAS™ provides Licensor and Licensee a competitive advantage over other clothing manufacturers and retailers. The value of ATLAS™ to Licensor and to Licensor’s licensees (including Licensee) lies in each of Licensor’s licensees abiding by the terms of their respective Software License Agreement pertaining to each licensee’s use of ATLAS™. The protection of ATLAS™ by Licensee is paramount to protecting and preserving the value of ATLAS™ to Licensor and its licensees (including Licensee).
E. Licensor wishes to license the Software to Licensee, and Licensee agrees to accept and utilize such license to utilize the Software only upon the terms, conditions and restrictions as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises contained herein, the Parties agree as follows:
1. License of Software; Term
Licensor, in exchange for Licensee’s agreement to utilize the Software exclusively for purposes of generating custom garment orders with Licensor, as described in more detail herein below, hereby grants to Licensee a limited, non-exclusive, non-transferable and royalty-free license to utilize the Software within Licensee’s brick and mortar retail stores only (the “License”). In exchange for the license granted herein, Licensee agrees to use its best efforts to utilize the Software to generate new orders for custom tailored garments to be manufactured by Licensor for Licensee’s customers.
The term of the license granted herein shall commence as of the Effective Date and shall be terminable by either Party to be effective immediately upon delivery of written notice to the other Party as set forth herein, which, for Licensor’s purposes, may be by deactivating Licensee’s access to the Software. Licensor shall retain any and all rights to the Software except for the limited and terminable license rights granted Licensee as set forth herein.
2. Order Pricing; Customer Relations
Licensor‘s pricing structure for any custom tailored garment manufactured from an order generated by the Software will be available and visible to Licensee at the time that any order is placed, which amount is collected directly by Licensor from Licensee’s customer
upon processing of the order (through Licensee’s customer’s credit card). Licensee shall be solely responsible for collection of any additional amounts charged to Licensee’s customers (i.e. Licensee’s profit margin). Licensee shall have sole discretion over what price Licensee charges its customers for the custom-tailored garments manufactured by Licensor.
Licensee shall be solely responsible for all customer interfacing such that Licensor will only be in contact with Licensee and Licensee’s representatives.
All sales by Licensee of products to its customers utilizing the Software and Licensee’s use of the Software shall be further governed by the Terms & Conditions attached hereto as Exhibit A (the “Terms & Conditions”).
3. Limited Warranty; Indemnification; Limitation of Damages
Licensor warrants that the custom tailored garments manufactured from orders generated by the Software will be of merchantable quality and in conformity with the order details submitted by Licensee to the best of Licensor’s abilities. Licensee shall be solely responsible for all measurements submitted to Licensor.
EXCEPT AS EXPRESSLY STATED HEREIN, LICENSOR HEREBY WAIVES ANY AND ALL REPRESENTATIONS AND WARRANTIES AS TO THE SOFTWARE AND THE GARMENTS THAT ARE MANUFACTURED FROM THE SOFTWARE, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR USE.
Licensee shall indemnify and hold Licensor harmless from and against any third party claims relating to Licensee’s utilization of the Software and/or any claims associated with orders generated by Licensee from utilization of the Software, including any attorney’s fees and costs incurred by Licensor in connection with any such claims. Licensee hereby waives any and all claims that it may have against Licensor in connection with Licensee’s use of the Software and hereby agrees to accept any and all risks associated with its utilization of the Software to generate custom tailored garments for its customers. To the extent any of Licensee’s customers are not satisfied with any garment purchased from Licensee using the Software, Licensee’s sole remedy against Licensor shall be to seek reimbursement for that portion of the purchase price paid by Licensee’s customer to Licensor, which shall be paid by Licensor only to the extent the garment is deemed defective, as determined in Licensor’s reasonable discretion after the garment has been permanently returned to Licensor for inspection.
4. Access; Restrictions; Damages
Licensee shall be assigned a unique login ID and password to access the Software. Licensee hereby agrees to only disclose its login ID and password to its agents, employees and contractors who need access to the Software to generate orders to Licensor. Licensee shall be solely responsible for the acts of any and all third parties that access the Software utilizing Licensee’s login ID, whether or not any such third party had authorization from Licensee to utilize its login ID. Accordingly, Licensee shall implement security measures so as to ensure that its login ID and password are kept secure and inaccessible by unauthorized third parties.
Licensee shall use the Software only for processing orders submitted to Licensor. Licensee hereby acknowledges that Licensor incurs charges from third parties each and every time that the Software is utilized, whether or not an order is generated after each use. Licensee also acknowledges and consents to Licensor’s tracking of Licensee’s use of the Software via ISP and user monitoring/tracking software to ensure that it is being utilized only to generate orders for Licensor and no other third parties. Licensor reserves the right to terminate the license granted herein at any time, for any or no reason, but especially in the event Licensor suspects, in Licensor’s sole and absolute discretion, that
Licensee is utilizing the Software for purposes other than in connection with generating garment orders for Licensor.
Licensee will not reverse engineer, decompile, disassemble or otherwise attempt to derive the source code, techniques, processes, algorithms, know-how or other information from the binary code portions of ATLAS™ or permit or induce the foregoing.
To the extent Licensee violates the provisions of this Section 4, including, without limitation, if Licensee utilizes the Software for any other purpose than to generate orders for custom tailored garments to be manufactured by Licensor, including, without limitation, Licensee’s use of the Software to generate or deliver orders or to convey configurations or ideas to or for any third party other than Licensor, Licensor shall be entitled to recover from Licensee immediate injunctive relief (without the need to post a bond), Licensee acknowledging that such a breach subjects Licensor to immediate and irreparable harm for which money damages may not be sufficient, as well as any other remedies available by contract, in equity or under applicable law, including, without limitation, money damages for any and all actual, special and punitive, to the extent available by applicable law, damages incurred by Licensor as a result of Licensee’s breach (including lost revenue equal to at least the amount that Licensor would have profited from any orders that were diverted to other manufacturers, costs incurred by Licensor to develop and maintain the ATLAS™ software and systems, and any other lost revenue or opportunity money damages sustained by Licensor), as well as any and all attorney’s fees and costs incurred by Licensor to pursue any of the foregoing remedies, to include costs incurred for redirecting Licensor’s employees’ efforts away from their normal responsibilities to addressing any such breach by Licensee.
5. Duties of Licensor
Licensor may, upon Licensee’s request, or as a condition to allowing Licensee to access the Software, provide training to Licensee, at no cost, which training shall take place at Licensee’s office in Knoxville, Tennessee, United States or via telephone, videoconference or other electronic means as determined in Licensor’s absolute and sole discretion.
Licensor shall use commercially reasonable efforts to ensure that the Software is working properly at all times and shall update and may, from time to time, as determined in Licensor’s sole discretion, improve the Software based on feedback provided by Licensee. Licensor shall also promptly perform any repairs or bug fixes needed to the Software. Notwithstanding the foregoing, Licensee hereby releases Licensor from any and all liabilities, claims or damages relating to or arising out of the Software.
6. No Agency
Nothing contained in this Agreement shall be construed to (1) give either Party the power to act on behalf of the other Party; (2) constitute the Parties as partners, joint venturers, co-owners or otherwise; or (3) allow either Party to create or assume any obligation on behalf of the other Party for any purpose, except as may be specifically authorized herein.
7. Trademarks and Trade names
During the term of this Agreement, Licensee shall have the right to indicate to the public that it is an authorized Licensee of the Software and to advertise only within the Territory under the trademarks, service marks, and trade names that Licensor may adopt from time to time (“Licensor’s Trademarks”), which may or may not be in conjunction with Licensee’s trademarks, service marks and/or trade names. Licensee shall first submit any and all marketing plans to Licensor for written approval, which approval may be denied by Licensor as determined in Licensor’s sole and absolute discretion. Nothing herein shall grant Licensee any right, title, or interest in Licensor’s Trademarks beyond those specifically granted herein.
8. Notices
All notices required or permitted by this Agreement shall be deemed given if sent by email as follows:
If to Licensor:
Attn: R. Benton Bryan
John H. Daniel Company
1803 N. Central St.
Knoxville, TN 37917
Email: bentonbryan@johnhdaniel.com
w/ copy to
Attn: Kyle A. Baisley, Esq.
Long, Ragsdale & Waters, PC
1111 N. Northshore Dr.
Suite S-700
Knoxville, TN 37919
Email: kbaisley@lrwlaw.com
If to Licensee:
To the email address submitted by Licensee to Licensor in the Software application process.
9. Binding Effect; Assignment
This Agreement shall be binding upon and inure to any successors or assigns of the Parties. Notwithstanding the foregoing, Licensee shall have no right to assign any of its rights or obligations as set forth in this Agreement without first obtaining Licensor’s express written approval, which may be withheld in Licensor’s sole and absolute discretion. Licensor shall be allowed to assign any and all rights and obligations as set forth in this Agreement to any third party of its choosing and without notice to Licensee.
10. Governing Law and Jurisdiction
This Agreement shall be governed by and construed according to the laws of the State of Tennessee. Jurisdiction for disputes arising out of or relating to this Agreement shall be proper in the state or federal courts located in Knox County, Tennessee, and no other forum, the Parties hereby consenting to such courts and waiving any and all rights to
object to such courts having personal or subject matter jurisdiction over any such disputes.
11. Waiver
The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that Party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
12. Severability
If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If any court or body of competent jurisdiction finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision shall be deemed to be written, construed and enforced as so limited. However, the invalidity or limitation of any such provision shall not affect the validity of the remaining provisions.
13. Section Headings
The section headings used in this Agreement are inserted for the purpose of convenience only and shall not be construed to limit or extend any provision hereof.
14. Entire Agreement; Amendment
This Agreement and the Terms & Conditions attached as Exhibit A constitutes the entire agreement between Licensor and Licensee and supersedes all prior agreements or understandings with respect to the subject matters contained herein. Licensor may add additional terms and conditions or amend any provision found in this Agreement and said Terms & Conditions at any time, without prior notice to Licensee, as determined in Licensor’s sole and absolute discretion. The most up-to-date version of this Agreement and Terms & Conditions may be accessed at www.jdisuits.com/terms (the “Website”). Licensee’s use of the Software is, at all times, subject to the then-current version of this Agreement found on the Website. Licensee agrees that each use of the Software constitutes an agreement to the then-current form of this Agreement as found on the Website.
By clicking “I Consent and Agree” Licensee represents and warrants to Licensor that Licensee has read and understands this entire Agreement, that Licensee has had the opportunity to review this Agreement with their independent business and legal advisors, that Licensee has the authority to enter this Agreement, and that Licensee has freely and voluntarily executed this Agreement as of the Effective Date.
EXHIBIT A
Terms & Conditions
1. Unless otherwise expressly agreed in writing by Licensor (“Seller”), these conditions shall apply to all orders placed by Licensee (“Customer”) received and accepted by Seller through Customer’s use of the Software (each an “Order”).
2. If any Order submitted by Customer contains any conditions in addition to those set forth herein, such conditions shall not in any circumstances bind Seller.
3. Time is specifically not of the essence in connection with Seller’s processing of each Order. Any target delivery date/production period set forth within the Software is an estimate and does not form part of the contract between Seller and Customer unless otherwise specifically
agreed to in writing signed by both Parties.
4. Customer’s use of the Software is at Customer’s sole cost and expense. Absent gross negligence or willful misconduct, Seller shall not be liable for any loss of Customer’s revenue due to failure by Seller to timely deliver on any Order or otherwise provide an end product that materially consistent with the information input by Customer in the Software for fulfillment of the Order.
5. Seller accepts responsibility for five percent (5%) deviation from measurements input by Customer on any Order due to cloth irregularities and performance. Seller agrees to waive any and all claims against Seller for any measurement deviation within this acceptable range.
6. All prices quoted on Orders are exclusive of packaging, carriage, delivery, handling and insurance for the amount of the total price of the Order.
7. All Orders shall be paid for in advance. Seller will not commence work on any Order absent such upfront payment. Cancellation of any Order cannot be made without Seller’s express written consent.
8. The pricing of any Order is subject to increase prior to delivery to Customer due to any unforeseen increase in the cost of materials to Seller or in the event any packaging, carriage, delivery, handling and insurance fees increase.
9. Seller reserves the right to immediately withdraw Customer’s access to the Software for any or no reason and without prior notice to Customer.
10. Customer shall not be entitled to assert any credit, set-off or counterclaim against Seller in order to justify withholding payment of any amounts due Seller in whole or in part. Seller may at any time, without limiting any other rights or remedies Seller may have, set off any amount owed Seller by the Customer against any amount payable by the Seller to the Customer.
11. Title to all goods manufactured by Seller pursuant to any Order shall pass to Customer immediately up shipment from Seller’s manufacturing facility, after which time Customer shall assume all risk associated with shipment of such goods from Seller’s manufacturing facility to Customer’s requested delivery address.
12. Unless otherwise agreed to by Seller in writing, prices for all goods are stated and shall be payable in United States Dollars (USD) in the manner and at such place as Seller may designate from time to time. If prices are stated by Seller in other than USD, Customer shall pay Seller the amount of such other currency as may be required to purchase the same amount of USD as could be purchased on the date when any such applicable purchase is made.