1.
The System.
1.1
Provision of System. Client engages Service Provider to provide an online database
program for managing contracts, requests for proposals, and other procurement related
information to Client under the terms and conditions set forth in Exhibit A
and under the terms and conditions set forth below.
Service Provider shall provide System
for Client on a dedicated computer system either owned by, or contracted by, Service
Provider (the "Services").
1.2
Data Center. The System shall be kept and maintained by Service Provider
at a data center of Service Provider’s choosing. Service Provider shall provide
the support described in Exhibit B.
1.3
Implementation and Logon Access.
1.3.1
Implementation Schedule. Promptly after the
Effective Date, Service Provider and Client shall schedule a meeting for a time
and place convenient to both parties to develop a mutually agreeable Implementation
Schedule. Service Provider shall use its reasonable commercial efforts to complete
Implementation in accordance with the Implementation Schedule; provided however,
that Client agrees to amend and/or extend the Implementation Schedule upon Service
Provider's reasonable request in the event Service Provider encounters unforeseen
circumstances during Implementation or in the event Client requests material or
untimely changes in the content, structure or configuration of the System.
1.3.2
Go Live Date. After Implementation is completed
and Service Provider has received payment of all Setup Fees, Service Provider shall
begin the provision of the Services (defined in Section
1.5) as set forth in Exhibit A. Upon Client’s request, Service Provider
shall also provide Client a unique user name and preliminary password. Client may
then log on to the System Website and select a unique Client password. Client shall
incur Fees other than the Setup Fee (see Section
5) beginning on the Go Live Date, which date shall in no event be later
than the date of any use of the System for business purposes other than to test
for compliance with implementation requirements. Service Provider is not responsible
for loss, misuse or other negligence concerning usernames and passwords in the possession,
custody or control of Client.
1.3.3
Terms of Use. The Terms of Use governing use
of the System and the Website by Authorized Persons shall become a direct contract
with Service Provider before an Authorized Person is permitted access to the System.
From the Effective Date, this Agreement shall supersede and control over the Terms
of Use as to Client's use of the System and Website. The Terms of Use may be found
on the Website and via link at www.versara.net.
1.4
Security. Service Provider shall employ commercially reasonable
technological or other security measures as required by applicable law to maintain
the security and privacy of Proprietary Information and Personal Information. Additionally,
the parties agree to enter into a mutually acceptable amendment to this Agreement
to the extent necessary to timely comply with applicable federal laws and regulations.
1.5
Services. In addition to Services, Service Provider shall provide
the computer software development and related services described more fully in Exhibit
A (the "Services"), if any, attached and incorporated herein.
1.6
Support. Service Provider shall provide Client with telephone and
electronic mail software support as set forth in Exhibit A. Support services
shall generally be allocated on a first-come, first-serve basis, with reasonable
consideration and priority given to the impact each issue has to Client and system
functionality, and Client Parties and Service Provider shall follow all support
priority and escalation procedures and electronic support systems established by
Service Provider in the Documentation or on the Website. Client shall designate
a reasonable number of Client's technical staff as Client's sole contact with Service
Provider regarding technical support obligations including Implementation, data
input, archival, critical form/report generation and database maintenance support.
1.7
Enhancements. Service Provider may, on a schedule determined by Service
Provider, update or enhance the System. During the Term, such updates and enhancements
shall be automatically made available to Client Parties through Scheduled Maintenance
at no additional cost.
1.8
Additional Services. Client may request and Service Provider may provide, subject
to Service Provider's written consent, Additional Services as more fully described
in Exhibit A. All Additional Services are billed at Service Provider's standard,
published rates as of the date such Additional Services are contracted.
2.
Client
Obligations and
Acknowledgements.
Unless otherwise provided in a separate
written agreement between the parties, Client shall be solely responsible for: (i)
providing data and information necessary for the provision of Services as necessary
to make effective use of the System; (ii) providing accurate, timely and complete
information to Service Provider regarding the data used in the System; (iii) maintaining
the confidentiality of all user names and passwords and secure access to all user
names and passwords only to Authorized Persons; and (iv) all actions taken by Service
Provider at Client's direction or request provided, however, that Service Provider
otherwise materially complies with the terms of this Agreement in taking such actions. In addition, Client will be providing
all backend billing administration as more fully set forth on
Exhibit A.
3.
Subscription
License; Proprietary Rights.
3.1
Software and Documentation. During the Term, Service Provider grants to Client and
Authorized Persons a nontransferable (except as permitted under Section
14.5) and nonexclusive license and right to: (i) access the System using
authorized user names and passwords solely for the purpose of conducting Client's
business with Authorized Persons and Service Provider; and (ii) reproduce the Documentation
solely for use as provided therein.
3.2
Ownership Acknowledgment. All rights and property interests, including but not limited
to patents, copyrights, trade secrets, trademarks and other proprietary rights recognized
under applicable law in or relating to the System and all modifications, adaptation,
derivative works and enhancements thereto, are owned exclusively by Service Provider
and/or its licensors, and all such rights not expressly granted herein are reserved
to Service Provider. Notwithstanding the above, Service Provider shall not acquire
through this Agreement any ownership interest in Personal Information or in any
Client provided data or software or Client provided intellectual property rights.
3.3
Trademarks. No party will use in any manner the Marks of the other
party without the express written permission of such other party, which consent
may be withheld in the sole and absolute discretion of such other party. Notwithstanding
the above, either party may publicly display copy or reproduce the Marks of the
other party solely in accordance with the purpose and intent of this Agreement;
provided however that neither party shall alter, modify or revise any Mark of the
other party.
4.
Term;
Termination.
4.1
Term. Subject to Section
4.2, this Agreement shall be effective from the Effective Date through
the Initial Term set forth on Exhibit A,
and shall be subject to any further provisions for early termination set forth therein.
4.2
Termination
4.2.1
For Cause. Either party may
terminate this Agreement at any time upon the giving of written notice in the event
that the other party materially fails to perform its obligations under this Agreement,
provided that such party receiving the notice of default fails to cure the default
within (i) twenty (20) calendar days in the case of non-payment defaults other than
defaults of Section 7
or (ii) ten (10) calendar days in the case of payment defaults or material defaults
of Section 7, after
the aggrieved party shall have given written notice specifying such failure or default.
4.2.2
Automatic Termination. This Agreement shall
automatically terminate without notice or a right to cure upon any party's assignment
for the benefit of creditors or any commencement by or against a party of any proceeding
in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws or laws
of debtor's moratorium. Notwithstanding
the foregoing, in the event of termination of this Agreement for Service Provider's
bankruptcy, Client’s right to use the Software Deliverables for up to sixty (60)
days shall survive such termination.
4.3
Post-Termination Obligations. Upon any termination
of this Agreement:
4.3.1
Proprietary Information. Each party shall immediately
return to the other, or at such other party's written election, destroys copies
of, all of the other party's Proprietary Information. The party returning or destroying
copies of such materials shall provide to the other party a signed written statement
under oath certifying that it has returned or destroyed all of the other party's
Proprietary Information and that such party does not retain in its possession any
copies of the other party's Proprietary Information in hardcopy or electronic format.
Notwithstanding the above, each party shall be permitted to retain for its records
one archival copy of all Proprietary Information solely for purposes of defense
of such party in the event of subsequent litigation or third party claims arising
out of or related to this Agreement, or compliance with applicable law. Such archival
copy shall be destroyed on the earlier of the execution of a written release between
the parties, or after six years from the effective date of termination.
The confidentiality and security obligations of this Agreement shall survive
termination and continue in perpetuity as to all such retained Proprietary Information.
4.3.2
Personal Information.
Service Provider shall execute a data inspection of the electronic databases containing
Personal Information provided by Client Parties, so that upon completion of a data
scrub of such Personal Information, all such Personal Information in all live electronic
databases owned or operated by Service Provider will be rendered inaccessible by
any user of the databases other than Service Provider and its employees or agents.
Additionally, if feasible, Service Provider shall return or destroy all Personal
Information that Service Provider still maintains in any form and retain no copies
of such information when no longer needed for the purpose for which disclosure was
made, except that, if such return or destruction is not feasible or applicable law
requires such information to be retained in Service Provider’s reasonable good faith
determination, Service Provider shall limit further uses and disclosures to those
purposes that make the return or destruction of the information infeasible.
4.3.3
License terminates. Client shall immediately
cease all use of the System, and all rights and licenses granted by Service Provider
hereunder to Client Parties shall immediately cease. Client shall promptly notify
all Authorized Parties of the termination of this Agreement.
4.3.4
Fees, Expenses and Setup Fees. Client shall
remain responsible for payment of all Setup Fees and Expenses incurred up to and
including the effective date of termination. Notwithstanding the above, in the event
that this Agreement is terminated during Implementation: (i) by Client under Section
4.2.1, Service Provider
shall refund to Client the Setup Fees actually paid; or (ii) by either party under
Section 4.2.2, Service
Provider shall refund to Client the excess, if any, of the Setup Fees actually paid
over all Implementation costs incurred by Service Provider through the effective
date of termination.
4.3.5
Survival of Terms. The provisions of Sections
1.2 and
1.4 (only as necessary to protect the confidentiality of retained Proprietary
Information and Personal Information),
3.2, 3.3,
4.3,
5 (to the extent of any unpaid amounts), and Sections
6 through and including
14 shall continue and survive in full force and effect to the
extent so provided therein.
5.
Subscription, Service Fees and Premium Payments.
5.1
Setup Fee. The Setup Fee shall be the amount and due and payable
at the time specified on Exhibit A. In the event Service Provider encounters
unforeseen difficulties or Client requests material or untimely changes in the content,
structure or configuration of the System during Implementation which results in
increased costs of Implementation, Service Provider may reasonably request that
Client submit an additional Setup Fee in an amount necessary to cover such increased
costs. Such additional Setup Fee shall be due and payable within ten (10) days of
Service Provider's written request therefor.
5.2
Fees. As consideration for providing the Services and the Services
Client shall pay to Service Provider the Fees, including interest, in the amounts
and at the times specified on Exhibit A. Should the scope of services change
for any reason beyond the scope originally agreed upon, Service Provider may increase
the Fees in its sole discretion, provided that Service Provider delivers
to Client written notice of any such Fees increase not less than sixty (60) prior
to the effective date of such increase.
5.3
Expenses. In addition to Fees, Client shall reimburse Service Provider
within the time specified on Exhibit A for all pre-approved and actual Expenses
incurred after the Go Live Date, including interest,, unless the Expense is an emergency
and Service Provider is unable to obtain prior consent. Receipt for Expenses will
be provided to Client, if requested.
5.4
Payments. All Fees and Expenses are due and payable by Client within
ten business (10) days of the monthly invoice therefore. Client shall remit payment
to Service Provider at the address identified in the invoice, and all payments shall
be made in U.S. currency by means of a company check or if so permitted by Service
Provider, by ACH, wire or other electronic means. Interest at the rate of one and
one-half percent (1.5%) per month (18% per annum) or the maximum amount allowed
by law, whichever is less, shall accrue on all Fees and Expenses that are not paid
when due.
5.5
Taxes. All Setup Fees, Fees, Expenses and Premiums due under
this Agreement are net amounts to be received by Service Provider, exclusive of
all taxes, duties, sales taxes, assessments and similar taxes, and are not subject
to offset or reduction because of any costs, expenses, taxes, duties or liabilities
incurred by Client Parties or imposed upon Service Provider in the performance of
this Agreement or otherwise due as a result of this Agreement. Notwithstanding the
above, Service Provider shall be responsible for the payment of Service Provider's
income and withholding taxes.
6.
Non-Disclosure and Confidentiality.
6.1
Disclosure and Confidentiality. Each party may disclose to the other Trade Secrets and
Confidential Information of such party or of such party's associated companies or
customers. Recipient agrees to hold the Proprietary Information disclosed by Discloser
in confidence and not to, directly or indirectly, copy, reproduce, distribute, manufacture,
duplicate, reveal, report, publish, disclose, cause to be disclosed or otherwise
transfer such Proprietary Information to any third party or utilize such Proprietary
Information for any purpose whatsoever other than as expressly contemplated by this
Agreement. With regard to Trade Secrets, this obligation shall continue for so long
as such information constitutes a Trade Secret under applicable law. With regard
to Confidential Information, this obligation shall continue for the Term and for
so long as Recipient maintains Confidential Information disclosed by Discloser.
Each party shall keep confidential the terms and conditions of this Agreement, but
may make general statements publicizing the fact that the parties have entered into
this Agreement. Notwithstanding the above, upon prior written notice to Discloser,
Recipient may disclose Discloser's Proprietary Information if, upon advice of counsel,
such disclosure is required by a subpoena, court order or other compulsion of law
(in which case Recipient will cooperate with Discloser to the extent reasonable
to preserve the Proprietary Information from public disclosure beyond that necessary
in such proceeding).
6.2
Exceptions. The above confidentiality obligations shall not apply
to Proprietary Information if and to the extent that Recipient establishes that
the information communicated: (i) was already known to Recipient, without obligation
to keep such information confidential, at the time of Recipient's receipt from Discloser,
as evidenced by documents in the possession of Recipient prepared or received prior
to such communication; (ii) was received by Recipient in good faith from a third
party lawfully in possession thereof and having no obligation to keep such information
confidential; (iii) was publicly known at the time of Recipient's receipt from Discloser
or has become publicly known other than by a breach of the Agreement; or (iv) prior
to Recipient's disclosure of such information, such disclosure was consented to
in writing by Discloser. Unless otherwise designated and unless falling under this
paragraph, all information transmitted between the parties (other than Personal
Information) shall be presumed to be Confidential Information.
6.3
Security Measures. Without limiting the obligations specified above, Recipient
agrees to implement the following security steps in order to protect the confidentiality
and security of Proprietary Information of Discloser: (i) implement internal procedures
to limit, control and supervise the use of Discloser's Proprietary Information;
(ii) make Discloser's Proprietary Information available only to Recipient's employees,
agents and contractors who comply with the non-disclosure obligations set forth
herein; (iii) notify Discloser in writing of any suspected or known breach of the
obligations and/or restrictions set forth herein; and (iv) use those security procedures
it uses for its own Proprietary Information which it protects against unauthorized
disclosure, appropriation or use, but not less than reasonable security procedures.
7.
Personal Information.
7.1
Privacy Policy. Service Provider has developed a policy for the System
setting forth Service Provider's procedures regarding its use and disclosure of
Client data, Client Confidential Information and personal information (the "Client
Information"). Service Provider shall provide Client with thirty (30) days prior
written notice upon any material modification, amendment or supplement to the Privacy
Policy. Notwithstanding anything herein to the contrary, Service Provider shall
not be held liable for any improper use or disclosure of Personal Information by
any Client Party or any third party not under Service Provider's direction or control.
7.2
Use and Disclosure. Except as otherwise restricted by this Agreement, Service
Provider may use or disclose Client Confidential Information and Personal Information
to provide services to Client solely for the following purposes: (i) to provide
the services associated with the System to Client Parties under this Agreement;
(ii) for proper management and administration of Service Provider's business or
to carry out its legal responsibilities; provided that such disclosure is required
by law or Service Provider obtains reasonable assurances from the person to whom
disclosure is made that such information will be held confidentially and used or
further disclosed only as required by law of for the purpose for which it was disclosed
and such person notifies the Service Provider of any instances of which he/she is
aware in which the confidentiality of such information has been breached; (iii)
to provide data aggregation services relating to Client Parties; and (iv) otherwise
as permitted or required by applicable law.
8.
Warranties
and Covenants.
8.1
Both Parties. Each party warrants and/or covenants that: (i) it has
the power and authority to execute and deliver this Agreement and has taken all
necessary corporate action to authorize the execution and delivery of this Agreement;
(ii) this Agreement is and shall be the legal, valid and binding obligation of such
party, enforceable in accordance with its terms; and (iii) it shall procure and
maintain in effect during the Term insurance in such amounts and of such types of
coverage sufficient to cover potential claims resulting or arising from this Agreement,
or as required by applicable law, whichever is greater.
8.2
Client. Client covenants that Client shall: (i) timely and fully
perform its obligations under this Agreement; (ii) use the System in compliance
with all applicable federal and state laws, rules and regulations; (iii) not post
on or provide for the System any material that infringes the trademarks, copyrights
or other intellectual property rights of third parties or that violates a right
of privacy or constitutes defamation; (iv) comply with all Documentation provided
by Service Provider; (v) not alter, recast, revise, modify, translate, reformat,
reverse engineer, compile, disassemble or decompile the System or any portion thereof;
(vi) make no representations to Authorized Persons or third parties regarding the
System or Service Provider's services that are not expressly authorized to be made
in this Agreement; (vii) not use Service Provider's Marks in any manner except as
permitted under this Agreement; and (viii) cooperate with Service Provider in its
provision of the System including providing such technical assistance and information
as reasonably requested by Service Provider.
8.3
Service Provider. Service Provider warrants and/or covenants that Service
Provider: (i) owns or has acquired sufficient rights to all proprietary interests
in the System necessary to grant the licenses set forth herein; (ii) shall maintain
the System in compliance with all applicable federal and state laws, rules and regulations;
and (iii) shall promptly post on the System all information and materials provided
by Client Parties for posting, including all updates and amendments to such information
and materials. Service Provider further warrants and/or covenants that: (a) the
System will operate in accordance with the Documentation; and (b) to the knowledge
of Service Provider, the software necessary to provide the System contains no virus,
Trojan horse, worm, or other software routines designed either to permit unauthorized
access by third parties or to disable, erase, or otherwise harm any data supplied
by any Client Party.
8.4
Disclaimer. OTHER THAN AS EXPRESSLY SET FORTH ABOVE, NEITHER SERVICE
PROVIDER NOR CLIENT MAKES ANY OTHER EXPRESS OR IMPLIED WARRANTIES OF ANY KIND WHETHER
ORAL OR WRITTEN, AND SERVICE PROVIDER EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES,
INCLUDING THE IMPLIED WARRANTIES OF ACCURACY, FITNESS FOR A PARTICULAR PURPOSE AND
MERCHANTABILITY, ANY IMPLIED WARRANTY AGAINST INFRINGEMENT AND ANY IMPLIED WARRANTIES
ARISING UNDER SUBTITLE 4 OF TITLE 22 OF THE MARYLAND ANNOTATED CODE COMMERCIAL LAW
ARTICLE. THERE IS NO WARRANTY THAT THE SYSTEM OR ANY EFFORTS OR INFORMATION PROVIDED
BY SERVICE PROVIDER WILL FULFILL ANY OF CLIENT'S PARTICULAR PURPOSES OR NEEDS. EXCEPT
AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SERVICE PROVIDER SHALL NOT BE LIABLE FOR
THE QUALITY OR ACCURACY OF INFORMATION PROVIDED BY CLIENT PARTIES OR THIRD PARTIES
FOR OR VIA THE SYSTEM NOR FOR ANY INACCURATE RESULTS DUE TO SERVICE PROVIDER'S PROCESSING
OF ANY SUCH DATA. SERVICE PROVIDER MAKES NO GUARANTEE OR WARRANTY OF TIMELINESS
OF DELIVERY OF THE SYSTEM TO, OR PROCESSING OF ANY INFORMATION OR DATA PROVIDED
BY, CLIENT PARTIES.
9.
Indemnification.
9.1
Infringements. If a claim is made by a third party (other than a Client
Party) that use of the System or any portion thereof infringes a U.S. patent, copyright
or trade secret, upon receipt of Client's written notice of such claim, Service
Provider will have the option, in Service Provider's sole discretion, to: (i) replace
the System with software or a system that is non-infringing, (ii) modify the System to make it non-infringing, or
(iii) remove same and refund to Client all Fees paid to Service Provider on behalf
of Client for same after deduction of an appropriate charge based on use by Client
prior to such removal. Notwithstanding the above, Service Provider shall indemnify,
defend and hold harmless Client against claims by any such third party that the
System or a portion thereof infringes a U.S. patent, copyright or trade secret,
unless the infringement results from a Client Party's act or omission not authorized
by or permitted by Service Provider. The obligations of this Section
9.1 shall be Service Provider's sole obligations in the event that such
third party infringement claim is made against Client, and Client shall have no
other recourse against Service Provider; provided however that this limitation
of remedy shall not apply if Service Provider engaged in willful misconduct or acted
with gross negligence.
9.2
Both Parties. Each party agrees to indemnify, defend and hold harmless
the other party, its subsidiaries, associated companies, employees and agents from
and against any and all damage, liability, cost and expense (including reasonable
attorneys' fees) incurred as a result of a third party claim (including claims of
Authorized Persons) arising from: (i) the gross negligence or willful misconduct
of such party or such party's employees or contractors; or (ii) such party's material
breach of any provision of this Agreement.
9.3
Exception and Notice. Notwithstanding Sections
9.1 and 9.2, neither party shall be liable to the other party to the
extent that such other party has incurred any liability to a third party as a result
of its own material breach of this Agreement, negligence or intentional misconduct.
The obligations of each party to provide indemnification under Sections
9.1 and 9.2
are contingent upon the indemnified party: (i) promptly notifying the indemnifying
party in writing of any claim; (ii) giving the indemnifying party sole control over
the defense and settlement of the claim, provided that any settlement contains the
full release of the indemnified party; and (iii) reasonably cooperating in defense
and settlement efforts.
10.
LIMITATION OF
LIABILITY.
10.1
SUBJECT TO SECTION 10.3
BELOW: (i) CLIENT'S SOLE REMEDY IN THE EVENT OF A CLAIM AGAINST SERVICE PROVIDER
FOR BREACH OF THIS AGREEMENT SHALL BE FOR SERVICE PROVIDER TO REPAIR, REPLACE OR
OTHERWISE CORRECT THE SYSTEM; AND (ii) IN NO EVENT WILL SERVICE PROVIDER, ITS SUBSIDIARIES
AND/OR ASSOCIATED COMPANIES, BE LIABLE TO CLIENT UNDER THIS AGREEMENT OR OTHERWISE,
REGARDLESS OF THE FORM OF CLAIM OR ACTION, IN AN AMOUNT THAT EXCEEDS THE AGGREGATE
AMOUNT OF FEES ACTUALLY PAID TO SERVICE PROVIDER UNDER THIS AGREEMENT DURING THE
TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM;
AND (iii) IN NO EVENT WILL SERVICE PROVIDER, ITS OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS, SUBSIDIARIES OR ASSOCIATED COMPANIES BE LIABLE FOR ANY COMPENSATORY DAMAGES
TO ANY CLIENT PARTY OTHER THAN CLIENT, ANY CLIENT PARTY'S OFFICERS, DIRECTORS, STOCKHOLDERS,
SUCCESSORS OR ASSIGNS, OR ANY THIRD PARTY, UNDER THIS AGREEMENT OR OTHERWISE, REGARDLESS
OF THE FORM OF CLAIM OR ACTION.
10.2 SUBJECT
TO SECTION 10.3 BELOW,
IN NO EVENT WILL EITHER PARTY, ITS SUBSIDIARIES OR ASSOCIATED COMPANIES BE LIABLE
TO THE OTHER PARTY OR ANY THIRD PARTY FOR SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT,
CONSEQUENTIAL OR EXEMPLARY DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES OTHER
THAN THOSE AWARDED UNDER SECTION
13 OR 14.2),
OR LOSS OF GOODWILL OR PROFIT IN CONNECTION WITH THE SUPPLY, USE OR PERFORMANCE
OF OR INABILITY TO USE THE SYSTEM OR
ANY PORTION THEREOF, LOSS OF DATA, FALSE OR ERRONEOUS INFORMATION TRANSMITTED VIA
THE INTERNET OR IN CONNECTION WITH ANY CLAIM ARISING FROM THIS AGREEMENT, EVEN IF
SUCH PARTY, ITS SUBSIDIARIES OR ASSOCIATED COMPANIES WERE ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES OR COSTS.
10.2 Exceptions. The limitations of liability set forth in Sections 10.1 and
10.2 above shall not apply: (i) where the party seeking the benefit
of the limitation has acted with gross negligence or engaged in willful misconduct;
(ii) to third party claims for which the party seeking the benefit of the limitation
owes a duty of indemnity under Section
9; (iii) to claims that are actually covered by insurance, in which case
such claims shall be limited to the actual insurance coverage less any deductible;
or (iv) to claims made for material breach by a party of Section 6.0 (Confidential
Information) of Section 7
(Privacy). Notwithstanding any other provisions no liability of Service Provider
shall arise for failure to provide the System if due to any cause beyond Service
Provider's reasonable control.
10.3
No action arising out of this Agreement, regardless of form, may be brought by either
party or any third party more than two (2) years after the date the cause of action
accrued.
11.
Reservation of
Rights. Service Provider reserves all rights
not expressly granted herein. Except as set forth in this Agreement, no express
or implied license or right of any kind is granted to any Client Party regarding
the System, including but not limited
to any right to know, use, produce, receive, reproduce, copy, market, sell, distribute,
transfer, translate, modify, adapt, disassemble, decompile or reverse engineer any
Software, create derivative works based on, or obtain possession of any source code
of, or technological material relating to, the
System or any portion thereof. Service Provider expressly reserves the right
to terminate an Authorized Party's use of the System for default of the Terms of
Use without terminating this Agreement and without liability to Client. Service
Provider, Client, and their permitted successors or assigns, are the sole intended
beneficiaries of this Agreement, there are no other intended beneficiaries of this
Agreement, and no such unintended beneficiary or third party shall have the right
to sue on or enforce this Agreement. The parties expressly agree that other Authorized
Parties are not intended beneficiaries of this Agreement.
12.
Non-Solicitation;
No Raid. Each party represents and covenants
that it shall not, directly or indirectly, during the Term and for a period of one
(1) year thereafter: (i) counsel, solicit or otherwise encourage or entice any person
or entity not to purchase or license the services or products of the other party
or such other party's subsidiaries or affiliates; or (ii) hire, retain, induce,
solicit, advise, interfere with, seek to interfere with or otherwise contact any
employee or independent contractor of the other party with respect to terminating
their engagement with such other party or entering into an engagement with such
party or such party's subsidiaries or affiliates. The parties agree, however, that
nothing in this Section shall: (i) prohibit a party from considering for employment
or hiring an individual who applies for employment in response to a general media
advertisement seeking employment applicants or otherwise not as the result of such
party's initiation of contact with, or directed contact towards, such individual
regarding employment; or (ii) release a party from liability for violation of a
restrictive covenant found in a written employment agreement between the other party
and such individual.
13.
Dispute Resolution. Except for solely equitable claims which may be pursued
immediately and directly in court, all claims by a party for breach of this Agreement
that are not resolved by mutual written agreement shall be settled by binding arbitration
before three arbitrators under the rules of the American Arbitration Association;
provided however, that if the amount in controversy does not exceed $100,000.00
(excluding costs and attorneys' fees), the matter shall be determined by a single
arbitrator. The location of such arbitration shall be in Maryland, at a location
determined by the arbitrator(s). Each party shall select one arbitrator and the
two arbitrators shall select the third (in the case of a single arbitrator, the
arbitrator shall be appointed under the rules of the American Arbitration Association).
Arbitration may be commenced by either party by giving written notice to the other
party that the dispute has been referred to arbitration under this Section. Any
award rendered by the arbitrator(s) shall be conclusive and binding upon the parties,
provided that any such award shall be accompanied by a written opinion giving the
reasons for the award. This Section shall be specifically enforceable by the parties
and the decision of the arbitrator(s) may be filed under the Federal Arbitration
Act or any equivalent state arbitration act as an award of arbitration and shall
be a judgment of record in such court; provided however, that either party
may appeal the decision of the arbitrator(s) as if such decision had been rendered
by such court sitting without a jury, subject to all court rules and procedures
for collection and stay of judgment. Each party shall pay its own expenses of arbitration
and the expenses of the arbitrator(s) shall be equally shared, subject to Section
14.2 below.
In all cases each of the parties irrevocably
waive any and all right to a demand a trial by jury of any claim arising
out of or related to this Agreement or the performance or non performance of either
party.
14.
Miscellaneous.
14.1
Definitions. Capitalized
terms used in this Agreement and the Exhibits shall have the meaning set forth in
Exhibit C "Definitions," hereby adopted and incorporated herein.
14.2
Applicable
Law. This Agreement has been made, executed and delivered in Maryland. The parties
mutually stipulate and agree that this Agreement is in all respects (including,
but not limited to, all matters of interpretation, validity, performance and breach)
to be exclusively construed, governed and enforced in accordance with the laws of
Maryland and all applicable federal laws of the United States of America, as from
time to time amended and in effect. The parties agree that the Uniform Commercial
Code - Article 2 Sales, the United Nations Convention on Contracts for the International
Sale of Goods, and the Electronic Signatures in Global and National Commerce Act
shall not apply in any respect to this Agreement or the parties. In any litigation
or arbitration between the parties, the prevailing party shall be entitled to, and
the court or arbitrator(s) shall award, reimbursement of such party's reasonable
attorneys' fees and costs.
14.3
Relationship of the Parties.
Except as expressly provided herein, nothing in this Agreement shall be: (i) deemed
to constitute a partnership or joint venture between the parties or be deemed to
constitute one party as agent of the other, for any purpose whatever, and neither
party shall have the authority or power to bind the other, or to contract in the
name of or create a liability against the other, in any way or for any purpose;
or (ii) construed as a limitation on the powers or rights of either party to carry
on its separate businesses for its sole benefit, including and not limited to the
ability to enter into similar agreements with third parties, and each party shall
take no action, directly or indirectly, which may prevent or hinder the other party
from fulfilling its obligations to third parties.
14.4
Relief. Each party
acknowledges that any violation of the confidentiality, intellectual property of
this Agreement will cause irreparable injury to the other party. Therefore, in addition
to any other available remedies and damages, such other party shall be entitled
to an injunction to restrain the violation thereof by the breaching party, its subsidiaries,
agents, servants, employees and all personnel acting for or with it (without the
requirement to post a bond or security). Nothing herein shall be construed as prohibiting
a non-breaching party from pursuing any other available remedy for breach or threatened
breach of this Agreement, including actual damages and reasonable attorney's fees.
14.5
Assignment.
Either party may assign this Agreement at any time without a fee and without the
consent of the other party to a corporate successor in interest, acquiror or other
entity that purchases or obtains substantially all of the assets or stock of such
party, provided that such transferee agrees in writing to be bound by the terms
and conditions of this Agreement in the place of such party. Except as set forth
above, Client may not assign or delegate this Agreement without Service Provider's
prior written consent, which shall not be unreasonably withheld.
14.6
Notice. All written
communications between the parties shall be sent by First Class Mail or recognized
courier, properly prepaid and sent to the addresses specified in this Agreement,
or by electronic mail or facsimile. All such communications shall be deemed received
upon the earlier of: (i) actual receipt or actual delivery to the address specified
in accordance with this Agreement; (ii) three days after notice is deposited in
a proper mail receptacle; or (iii) upon receipt by the transmitting party of confirmation
or answer-back (if delivery is by facsimile or electronic mail). By written communication,
either party may designate different contact information for purposes hereof.
14.7
Entire Agreement; Amendments.
This Agreement may be signed in counterparts, each of which shall be deemed an original
and which shall together constitute the entire Agreement. This Agreement, all documents
referenced herein and the Exhibits attached hereto represent the entire understanding
between the parties with respect to the subject matter hereof and supersede all
other prior written or oral agreements between the parties with respect to the subject
matter hereof. Any waiver or modification of this Agreement will not be effective
unless made in writing and signed by the authorized representatives of the parties.
In the event of any direct conflict between the terms and conditions of this Agreement
and any document referenced herein or any Exhibit, the terms of this Agreement shall
control.
14.8
Force Majeure. If
either party's performance of this Agreement, other than the payment of monies,
is prevented, restricted or interfered with by reason of Force Majeure, such party
shall, upon giving prior written notice to the other party, be excused from performance
to the extent of the Force Majeure, provided that the party so affected shall use
its best efforts to avoid or remove the causes of Force Majeure, and shall continue
performance hereunder with the utmost dispatch whenever the Force Majeure is removed.
Notwithstanding the foregoing, if the Force Majeure continues for a period of one
hundred eighty (180) calendar days or more, the unaffected party may, on written
notice to the party affected, terminate this Agreement, and neither party shall
have any further obligation to the other save for payment of all monies due and
payable and for those provisions hereunder which survive termination of this Agreement.
14.9
Severability. If
any provision hereof is declared invalid or unenforceable by a court of competent
jurisdiction, then the meaning of that provision will be interpreted, to the extent
feasible, in a way that renders it enforceable or valid. If no feasible interpretation
is possible, the provision will be severed from this Agreement and the remainder
of this Agreement will remain in full force and effect.