LICENSE AGREEMENT
These license terms are an agreement between Charter Oak
Systems, LLC, and Donald DeRespinis, CPA, the [Licensor] and
you the [Licensee]. Please read them. They apply to the
software named above, which includes the media on which you
received it, if any. The terms also apply to any
Charter Oak Systems, LLC
-
updates,
-
supplements,
-
Internet-based services,
and
-
support services
for this software,
unless other terms accompany those items. If so, those
terms apply.
BY CLICKING
“I ACCEPT” WHEN ASKED TO ACCEPT THIS AGREEMENT, YOU
ARE AGREEING ON YOUR OWN BEHALF AND ON BEHALF OF THE ENTITY
THAT YOU ARE ACTING FOR (COLLECTIVELY “LICENSEE”)
THAT LICENSEE WILL BE BOUND BY AND IS MADE A PARTY TO THIS
AGREEMENT. IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF
THIS AGREEMENT, DO NOT CLICK “I ACCEPT” WHEN ASKED TO
ACCEPT THIS AGREEMENT AND DO NOT USE THE LICENSED PRODUCT.
LICENSEE WILL NOT BE MADE A PARTY TO THIS AGREEMENT AND WILL
NOT BE AUTHORIZED TO USE THE LICENSED PRODUCT UNLESS AND
UNTIL LICENSEE HAS AGREED TO BE BOUND BY THESE
TERMS.
If you comply with
these license terms, you have the rights below.
R E C I T A L S
A. [Licensor] has
developed an application software system known as the
“LoanMgr”Ô(the
“Program”). The Program is for use in
connection with the operation of a mortgage origination
business .
B. Licensee
desires to obtain a license to use the Program. [Licensor] is
willing to provide Licensee with a license to use the
Program, upon the terms of this Agreement.
ARTICLE 1
LICENSE
1.1
License Grant. Subject to the terms and conditions set
forth in this Agreement, [Licensor] grants Licensee a
nonexclusive, revocable license (the “License”) to use
the object code form (and no other form) of the Program, for
the sole purpose of processing Licensee’s internal
information and not for processing the information of any other
individual or entity, whether or not affiliated in any way
with Licensee (the “Permitted Use”). Licensee may
use the Program solely on those central processing units (the
“Permitted Hardware”) specifically identified on
attached and incorporated Exhibit “B”, which are
located at the addresses identified on Exhibit
“B” (the “Permitted Locations”). The
Program, and all associated software, documentation, manuals,
materials, data, codes, toolkits, copyrights, trademarks,
specifications and all other information, consultations and
materials which [Licensor] (in its sole discretion) licenses
to Licensee under this Agreement shall be referred to
collectively as “Licensed Material”.
1.2
Certain License
Restrictions.
Licensee shall keep all the Licensed Material free of
any liens, claims or encumbrances of any type. Licensee
is authorized to use the Licensed Material solely in strict
accordance with the Permitted Use. Licensee shall obtain
[Licensor]’ prior, written permission before: (i) using
any Licensed Material for any purpose not specifically authorized
as a Permitted Use; (ii) using any Licensed Material on any
processing unit, computer or hardware other than the
Permitted Hardware; or (iii) using the Program at or moving the
Permitted Hardware to any location other than the Permitted
Location. Licensee shall notify [Licensor] immediately
if Licensee upgrades or changes the Permitted Hardware or its
current systems software, and shall pay an upgrade fee to
[Licensor], in accordance with [Licensor]’ then
applicable rates.
1.3
Retention of Rights. [Licensor] reserves the right to use all
or any portion of the Licensed Material in any manner, and/or
license, assign, convey, transfer, sell or otherwise alienate
any portion of or all the Licensed Material to any third party,
whether or not such use by [Licensor] or such third party is
in direct competition with the business of
Licensee.
1.4
Reproductions. [Licensor] agrees to allow Licensee to
make one (1) copy of the object code of the Program, but
solely for use as back-up, and for no other purpose. Except
as aforesaid, Licensee shall not reproduce, copy, duplicate
or distribute the Licensed Material, or any component of the
Licensed Material, without first obtaining [Licensor]’
express written consent. If Licensee damages or loses
the Program during the term of this Agreement, [Licensor]
will provide Licensee with one (1) new copy of the Program, at the
material cost of providing the same, plus fifteen percent
(15%).
1.5
Fee
and Taxes. In
consideration of [Licensor] granting the License to Licensee,
Licensee shall pay [Licensor] a fee in the amount set forth in the
current Price List http://www.mortgagecenter.net/ProductPricing.html
(the “Fee”).
Licensee shall pay the the Fee to [Licensor] in
accordance with the current license purchase and maintenance
schedule. Licensee also shall pay all taxes (service, sales,
use or otherwise) that are associated with the License of the
Program, except for income taxes of [Licensor] on the
Fee.
1.6
Term.
The term of the License shall commence on the Effective Date
and shall continue for the period as specified in the
maintenance plan (the “Agreement Period”), unless
terminated earlier under this Agreement.
1.7
Status. The status of Licensee under this
Agreement is that of an independent contractor and not an
agent or employee of [Licensor] for all purposes, including without
limitation payment of all taxes and assessments which any
state, federal, municipal or other taxing authority may
impose.
ARTICLE 2
OWNERSHIP RIGHTS
2.1
Exclusive Rights in
[Licensor]. Licensee
acknowledges that [Licensor] has the exclusive proprietary,
ownership and (except for the License) use rights to all the
Licensed Material, as well as to the following: (i) all
technical data or written material concerning the Licensed
Material, including all designs, plans, illustrations,
specifications, flow charts, diagrams, manuals,
documentation, trademarks, trade names, service marks, patents and
copyrights (if any, whether or not registered); (ii) all know
how or techniques concerning the Licensed Material; and (iii)
all inventions, discoveries, integrations, object codes,
source codes, software and future modifications, enhancements
or improvements of, in or to the application, programming or use
of any Licensed Material, including those which Licensee may
conceive or originate either on its own or jointly with the
assistance of others. [Licensor], in its sole discretion,
shall determine which (if any) of the foregoing items it will
deliver and/or make available to Licensee.
2.2
Modifications. Licensee agrees that [Licensor] shall
have sole and exclusive title (both legal and equitable) to
all adaptations, enhancements, modifications, improvements or
other changes in or to the Program or Licensed Material which
either [Licensor] or Licensee invent, create or make
(collectively referred to as “Product Modifications”).
Licensee shall provide [Licensor] complete copies of
all Product Modifications Licensee develops within three (3)
days of developing the same. However, Licensee shall
have a royalty free, perpetual license to utilize any Product
Modification which Licensee solely develops. Except for the
preceding royalty free license, Licensee shall not have any
right, title, ownership or other interest to any Product
Modification, and shall not obtain any copyright, patent,
trademark, service mark or other proprietary or registered
rights in or to any Product Modification. By executing this
Agreement, Licensee irrevocably assigns to [Licensor], all
rights, titles and interests Licensee has or may claim in or
to any Product Modification Licensee develops or assists in
developing, including but not limited to all copyright,
patent, trademark, trade secret, service mark or other proprietary
or registered rights of any type or nature. Licensee
shall execute such documents and shall take such actions as
[Licensor] may designate to consummate the preceding assignment
and/or to effectuate any such registration in any such
Product Modification in the sole name of [Licensor]. All
Product Modifications which [Licensor] permits Licensee to
use shall be included in the rubric of “Licensed
Material”, as defined in this Agreement.
2.3
Third Party Access. Licensee shall not permit any individual
or entity who is not in its employment (a “Third
Party”) to modify, maintain, alter, service or in any way
have access to any Licensed Material or to create any Product
Modification, unless Licensee first discloses the identity of
such Third Party to [Licensor], second receives
[Licensor]’written approval of such Third Party and
third requires such Third Party to execute a confidentiality
agreement in favor of [Licensor] which contains all the
provisions set forth in Article 3 and Sections 2.1, 2.2 and 2.4
of this Agreement. Licensee shall deliver to [Licensor]
an executed, original version of all such agreements with
Third Parties, within three (3) days of the execution of the
same.
2.4
Acknowledgments. Licensee acknowledges that: (i) all
information, know-how and data which it acquires from
[Licensor] concerning the software, programming, application,
development, technical specifications or use of the Licensed
Material, as well as the other items concerning the Licensed
Material that are identified in Sections 2.1 and 2.2 above (other
than those which are in the public domain), are highly
confidential and constitute trade secrets of [Licensor]
within the meaning of the Uniform Trade Secrets Act (the
“Trade Secrets”); (ii) [Licensor] has a
proprietary interest in, has invested substantial amounts of money
to develop and will continue to invest substantial amounts of
money to maintain the Trade Secrets; (iii) [Licensor] has
implemented procedures to maintain the confidentiality of the Trade
Secrets; (iv) [Licensor]’ competitors would obtain
unfair economic and competitive advantages if the Trade Secrets
were divulged; (v) [Licensor] would suffer irreparable and
continuing injury if the Trade Secrets were disclosed; and
(vi) the Trade Secrets form an integral part of [Licensor]’
business. Licensee agrees that the inclusion of
[Licensor]’ copyright notice on any Licensed Material in no
way diminishes or alters the trade secret status of such
Licensed Material, said copyright notice serving the sole
purpose of identifying [Licensor]’copyright in the underlying
material.
ARTICLE 3
CONFIDENTIALITY
3.1
Duties. Due to the importance and sensitivity of
the Trade Secrets, Licensee agrees that during the term of
this Agreement and following the termination of this Agreement or
the License for any reason, Licensee shall: (i)
hold the Trade Secrets in trust solely for the benefit and use
of [Licensor]; (ii) not directly or indirectly sell,
alienate, transfer, assign, disclose or divulge Trade Secrets
to any person or entity, nor permit any Third Party to do so,
without [Licensor]’ prior, written permission; (iii)
not permit any individual who is not in its employment to operate,
maintain or have access to the Licensed Material so that such
individual could receive access to Trade Secrets, except for
those Third Parties who execute confidentiality agreements in
accordance with Section 2.3 above; (iv) keep all documents
and information which it receives from [Licensor] concerning
the Licensed Material segregated in a retention area
designated solely for such Licensed Material and restricted
in access to those of Licensee’s employees with a specific
need to know or use the Licensed Material; and (v) not
directly or indirectly use Trade Secrets or any information
relating to Trade Secrets in or for the benefit of any
individual, business, profession, association, partnership,
corporation, limited liability company, joint venture or other
endeavor, other than as [Licensor] specifically authorizes in
writing.
3.2
Duty to Disclose. Licensee immediately shall notify
[Licensor] of any information which comes to Licensee’s
attention which does or might indicate that there has been any loss
of confidentiality concerning Trade Secrets. In such
event Licensee shall take all steps within its power to limit
the spread of such information, including but not limited to taking
whatever legal action necessary to terminate such spread.
[Licensor], in its sole discretion, shall have the right to
take over and assume control of any such litigation, by
providing Licensee with written notice of its decision to do
so, and Licensee shall cooperate fully with [Licensor] in such
litigation.
3.3
Title Protection. Licensee covenants that it shall not
claim, attack, compromise, file suit against or commit or
fail to take any action which could impair any of [Licensor]’
rights, titles or interests in the Licensed Material.
Licensee shall not attempt to develop any software similar to
the Program or any Licensed Material through reverse
engineering, disassembly or any other method.
3.4
Stipulated Damages. If Licensee, any of its employees or any
Third Party breaches any covenants contained in Article 3 of
this Agreement, Licensee shall pay [Licensor]’ actual,
direct, indirect and consequential damages which arise from
or are associated with such breach. In determining the
damages identified in this Agreement, the parties considered:
(i) the value, type and quality of the Trade Secrets;
(ii) the substantial amount of time, effort and cost which
[Licensor] invested to develop and will continue to invest to
maintain the Trade Secrets; and (iii) the confidential and
unique nature of the Trade Secrets. In addition to the
aforesaid money damages, if [Licensor] prevails in any action
or claim based upon Licensee’s breach of this Agreement,
Licensee shall pay [Licensor]’ reasonable
attorneys’ fees, court costs and investigation costs which
arise from or are associated with either Licensee’s
breach of any covenants contained in or [Licensor]’ attempts
to enforce any provisions of this Article 3. Licensee
agrees that the aforesaid stipulated damages solely
constitute a component of [Licensor]’ monetary damages, and
are not to the exclusion of any other damages [Licensor] may
suffer. Licensee’s right to License and use the Licensed
Material shall terminate immediately upon [Licensor]
transmitting a written notice to Licensee which both states
that the License is terminated and identifies in general
terms Licensee’s breach under this Article
3.
3.5
Injunctive and Other
Relief. Licensee
acknowledges that if it breaches any of its obligations under
Article 3 of this Agreement, it shall cause damage of an
irreparable and continuing nature to [Licensor], for which
money damages will not provide adequate relief. Therefore, in
addition to any money damages to which [Licensor] is entitled,
[Licensor] also is entitled to obtain injunctive relief
(including but not limited to immediate entry of a temporary
restraining order) to prohibit Licensee’s continuing
breach of the applicable covenant. [Licensor] shall have the right
to obtain such relief without having to prove any damages or
post any bond.
3.6
Survival of Covenants. Licensee’s obligations under this
Article 3 shall survive the termination of this Agreement or
any of this Agreement’s provisions, for any
reason.
ARTICLE 4
WARRANTIES
4.1
[Licensor]’
Warranties.
[Licensor] warrants that: (i) the Program currently is and
for a period of sixty (60) days after delivery (the
“Warranty Period”) shall remain free from
material defects in material and workmanship if used in
accordance with all applicable manuals, in a normal and
reasonable fashion, by Licensee’s authorized employees; (ii)
it will use its best efforts to correct any errors it has
knowledge of in the Licensed Material during the Warranty Period;
and (iii) it has the right to enter into this Agreement and
deliver the Licensed Material to Licensee. The
foregoing warranty is for the sole benefit of Licensee, and
not for any third party. [Licensor] does not warrant
that the Licensed Material will satisfy Licensee’s specific
desires or will meet Licensee’s intended requirements.
[Licensor] shall not be liable for any problems that arise
due to interfacing any Licensed Material with the Permitted
Hardware, any other hardware or software. [Licensor]
shall not be liable for damages that result from the improper
or incorrect use or operation of the Licensed
Material.
4.2
Warranty Limits and
Disclaimers.
(a) Warranty
Exclusion and Waiver. THE WARRANTIES SET FORTH IN SECTION
4.1 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OF [LICENSOR]
UNDER THIS AGREEMENT. [LICENSOR] SPECIFICALLY DISCLAIMS
AND LICENSEE SPECIFICALLY WAIVES ALL WARRANTIES WHICH ARE NOT
CONTAINED IN SECTION 4.1 ABOVE, WHETHER EXPRESS OR IMPLIED,
ORAL OR WRITTEN OR ARISING BY TRADE USAGE OR OTHERWISE,
INCLUDING BUT NOT LIMITED TO EXPRESS OR IMPLIED WARRANTIES:
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; THAT
ANY LICENSED MATERIAL WILL OPERATE ERROR FREE; THAT ANY
PERCEIVED DEFECTS IN THE LICENSED MATERIAL WILL BE CORRECTED;
OR THAT THE USE OF THE LICENSED MATERIAL WILL NOT BE
INTERRUPTED DUE TO DEFECT OR THE FAULT OF ANY PERSON OR
ENTITY.
(b) Termination of
Warranties. The warranties, which [Licensor] provides to
Licensee in Section 4.1 above shall expire on the final day
of the Warranty Period. During the Warranty Period, all
repairs [Licensor] makes to the Licensed Material shall be free of
charge. [Licensor]’ warranties shall expire prior to
the expiration of the Warranty Period and immediately if any of the
following occur: (i) Licensee modifies or allows any Third
Party to modify any Licensed Material; (ii) Licensee changes
the hardware or configuration of the Permitted Hardware; (iii) the
structural environment in which Licensee utilizes the
Permitted Hardware or Licensed Material is inadequate for any
reason, such as but not limited to insufficient electrical
power, faulty wiring, air conditioning problems, high
humidity content or the negligence of Licensee in maintaining said
area; (iv) Licensee utilizes supplies which do not satisfy
[Licensor]’ specifications; (v) Licensee uses software which
[Licensor] did not develop in conjunction with the Program;
(vi) Licensee fails to implement a software correction that
[Licensor] provides; (vii) Licensee does not allow [Licensor] to
implement any changes or make any modifications [Licensor]
desires to make to the Licensed Material; (viii) Licensee does not
utilize the Licensed Material in accordance with all
applicable manuals and documentation; or (ix) any other
reason not attributable to [Licensor]. If [Licensor] does
approve the use of any attachment, feature or device, such
approval shall not constitute a representation, warranty or
agreement of [Licensor] that any such attachment, feature or
device will perform in conjunction with the Licensed Material.
If Licensee desires, Licensee may execute a separate
agreement with [Licensor] to cover modification of the
Licensed Material and additional training following the expiration
of the Warranty Period.
(c) Warranty Period
Repairs. Licensee must provide [Licensor] with written notice
of any claimed defect in the Program that occurs during the
Warranty Period, immediately upon Licensee’s discovery
of such defect, and in no event after the expiration of the
Warranty Period. [Licensor] has the right to inspect
the Licensed Material while in a claimed defective condition.
During the Warranty Period, [Licensor] will furnish
replacements for components of the Licensed Material which
[Licensor] finds to be defective during its inspection, free of
charge, shipped F.O.B. [Licensor]’ facilities in
Marblehead, Connecticut. Licensee acknowledges that the
Program is of such complexity that minor errors may not be
correctable and that [Licensor] shall have no liability or
obligation under this Agreement (or implied at law) if
[Licensor] does not correct such errors, so long as the
Program is functional and materially conforms to its
documented specifications.
ARTICLE 5
INDEMNIFICATION
5.1
[Licensor]’
Obligations. Subject
to the limitations set forth in Article 6 below, [Licensor]
defends, indemnifies and holds harmless Licensee from all
liabilities and reasonable expenses (including but not
limited to attorneys’ fees) judgments, fines or penalties
which Licensee incurs that result from any claim, action,
suit or proceeding (whether civil, criminal or administrative,
including any associated appeals) the material allegation of
which avers that the Licensed Material, as used within the
scope of the Permitted Use, constitutes an infringement of a United
States registered copyright, trademark, service mark or
existing patent, provided that Licensee both notifies
[Licensor] in writing within thirty (30) days of receipt of notice
of such claim, action, suit or proceeding; and (ii) provides
[Licensor] with all information within Licensee’s possession
that is required for the defense of such suit. In lieu
of indemnification, [Licensor], at its sole option, may: (i)
obtain for Licensee the right to utilize any such allegedly
infringing Licensed Material; (ii) make such Licensed
Material non-infringing, if possible; or (iii) repurchase the
Licensed Material from Licensee, for an amount equal to the
Fee, reduced by three percent (3%) for each full month during
which Licensee had the use of the
Program.
5.2
Licensee’s
Obligations.
Licensee defends, indemnifies and holds harmless [Licensor]
from all liabilities and reasonable expenses (including but
not limited to attorneys’fees) judgments, fines or
penalties which [Licensor] may incur that result from any claims,
actions, suits or proceedings which arise due to actions of
Licensee which constitute a breach of Licensee’s
representations, warranties or obligations under this
Agreement, whether such actions are civil, criminal, administrative
or investigative, including any associated
appeals.
5.3
Notice of Claims. No later than three (3)
business days from receipt of notice of a suit or claim which
involves the indemnification obligations of the other party, each
party to this Agreement shall provide written notice to the
other party of the indemnifiable suit or claim in question.
The party with the indemnification obligation (the
“Indemnifying Party”) shall select a representative
and/or counsel to assume primary responsibility for such
claim or suit, at its sole cost and expense.
5.4
Settlement Offers. The Indemnifying Party, at its sole
expense, shall assume control of the negotiation of any
settlement offer to or from a third party, if such settlement is
due to a claim or suit which involves the Indemnifying
Party’s indemnification obligations under this Agreement.
The party being indemnified reasonably shall assist the
Indemnifying Party in any such settlement, suit or
proceeding, provided that such assistance shall be at the sole cost
and expense of the Indemnifying Party.
ARTICLE 6
REMEDY LIMITATIONS
6.1
Waiver of Damages and
Remedies. [LICENSOR]
DISCLAIMS AND SHALL NOT BE LIABLE FOR, AND LICENSEE WAIVES
ANY CLAIMS OR REMEDIES LICENSEE MAY HAVE AGAINST [LICENSOR]
FOR DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR
PUNITIVE DAMAGES OF LICENSEE OR ANY OTHER INDIVIDUAL OR
ENTITY, INCLUDING BUT NOT LIMITED TO DAMAGE ARISING FROM LOST
PROFITS, CUSTOMER CLAIMS, LOSS OF USE OF ANY OR ALL LICENSED
MATERIAL OR ANY EQUIPMENT, SOFTWARE, SYSTEM OR FACILITY, LOSS
OF DATA, LACK OR LOSS OF PRODUCTIVITY, COST OF SUBSTITUTE
EQUIPMENT, SOFTWARE, SYSTEMS OR SERVICES, OR DOWNTIME COSTS
WHICH ARISE OUT OF ANY BREACH OF THIS AGREEMENT BY [LICENSOR]
OR ANY OBLIGATIONS [LICENSOR] OWED TO LICENSEE OR
[LICENSOR]’BREACH OF WARRANTY, OR WHICH ARISE PURSUANT
TO ANY TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY, BUT
EXCLUDING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OR OTHER
CLAIM, OR FOR ANY CLAIM MADE AGAINST LICENSEE BY ANY OTHER
PARTY, EVEN IF [LICENSOR] HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH CLAIM IN ADVANCE, EXCEPT AS SECTION 6.4 BELOW
SPECIFICALLY PROVIDES FOR DAMAGES ASSOCIATED WITH
INFRINGEMENT INDEMNIFICATION.
6.2
Delays. [LICENSOR] SHALL NOT BE LIABLE FOR AND
LICENSEE WAIVES ANY DAMAGES CAUSED BY DELAY IN DELIVERY,
INSTALLATION OR FURNISHING OF LICENSED MATERIAL OR SERVICES
UNDER THIS AGREEMENT.
6.3
Obligation to Repair. If the Licensed Material contains any
material program errors, Licensee’s sole remedy and
[Licensor]’ sole obligation is for [Licensor] to provide
programming support to correct the defect, if such support is
technically feasible, in accordance with Section 4.2©
above. [Licensor] shall have ninety, (90) days from the date
of notification to repair any such problem. If
[Licensor] cannot repair the Licensed Material in said ninety, (90)
day period, Licensee may terminate this Agreement.
[Licensor] shall not be liable for and Licensee waives any
money damages for any such problems with the Licensed
Material. The money damages referenced in Section 6.4
below shall pertain only if [Licensor] becomes liable to indemnify
Licensee under Section 5.1 above.
6.4
Exclusive Remedies. [LICENSOR]’ TOTAL LIABILITY AND
LICENSEE’s SOLE AND EXCLUSIVE REMEDY FOR LOSS OR
DAMAGES RELATING TO OR ARISING OUT OF THE PERFORMANCE OF
[LICENSOR] UNDER THIS AGREEMENT AND/OR ARISING UNDER ANY
THEORY AT LAW OR EQUITY (WHETHER TORT, NEGLIGENCE OR
OTHERWISE) IS LIMITED TO AND SHALL NOT EXCEED THE AMOUNT
LICENSEE PAID TO [LICENSOR] UNDER THIS AGREEMENT FOR THE
TWELVE (12) MONTHS WHICH IMMEDIATELY PRECEDE THE DATE THE
APPLICABLE CLAIM ACCRUES. EXCEPT AS ARTICLE 6 OF THIS
AGREEMENT EXPLICITLY PROVIDES, LICENSEE SPECIFICALLY WAIVES
ALL OTHER REMEDIES AVAILABLE TO IT AT LAW, IN EQUITY OR
OTHERWISE, WHETHER FOR BREACH OF CONTRACT, TORT, OR
OTHERWISE.
ARTICLE 7
CERTAIN USE OBLIGATIONS OF
LICENSEE
Licensee shall keep
accurate records concerning its use and modification of the
Licensed Material, and shall provide copies of such records
to [Licensor] upon [Licensor]’ request, and/or shall
allow [Licensor] to examine Licensee’s records at its
premises and to copy or make abstracts of such records, upon
[Licensor] providing five (5) days advance notice of its intention
to do so. Licensee shall not change the location for its use
or maintenance of the Licensed Material without obtaining
[Licensor]’ prior, written consent. Licensee’s
president (or other chief executive officer) shall execute
and deliver to [Licensor] an officer’s certificate (the
“Certification”) upon written request from
[Licensor] at any time during the term of this Agreement. The
Certification shall state that: (i) Licensee has utilized the
Program and Licensed Materials solely for the Permitted Use,
solely on the Permitted Hardware and solely at the Permitted
Location; (ii) Licensee has not used the Program or any
Licensed Material to process the data or otherwise service any
individual or entity other than Licensee; (iii) Licensee has
not sublicensed, assigned, transferred, sold or otherwise
alienated the Licensed Material; (iv) there has been no breach of
Articles 2 or 3 of this Agreement by Licensee or any of its
employees; (v) Licensee has not copied and has not allowed any
individual or entity to copy, any of the Licensed Material,
and Licensee is not utilizing any unauthorized copies of the
Licensed Material; and (vi) there has been no change in ownership
of Licensee nor transfer of its assets outside the ordinary
course of business.
ARTICLE 8
TERMINATION
8.1
Expiration of Agreement
Period. The License
shall terminate in its entirety and Licensee immediately
shall stop using all Licensed Material without any action by
[Licensor] or Licensee, upon the expiration of the Agreement
Period, unless the License is continued pursuant to the prior,
written consent of both [Licensor] and
Licensee.
8.2
Other Causes. The License shall terminate prior to the
expiration of the Agreement Period and immediately, upon the
occurrence of any of the following: (i) Licensee discontinues its
active use of the Licensed Material; (ii) Licensee commits a
material default under this Agreement (including but not
limited to its failure to make a payment of any amounts owing to
[Licensor] when and as the same become due); (iii) Licensee
attempts to reproduce, sell, mortgage, lease, assign, convey,
transfer or sublicense any Licensed Material; (iv) Licensee
voluntarily or involuntarily becomes subject to a bankruptcy
proceeding, makes an assignment for the benefit of creditors,
marshals its assets, becomes insolvent, otherwise becomes
subject to any proceeding for relief from or protection of
creditors; (v) Licensee discontinues its active conduct of
business, dissolves or liquidates, merges or consolidates
with or into any other entity or sells substantially all its assets
or thirty percent (30%) or more of its voting stock (or other
voting interests), in one or a series of transactions, whether
or not related, to any individual or entity other than a
stockholder or other owner of Licensee as of the Effective
Date; (vi) a termination under Section 3.4 above; (vii) a
termination under section 6.3 above; or (viii) Licensee
removes the Program from the Permitted Hardware and/or utilizes
any Licensed Material on, or in conjunction with any
equipment other than the Permitted Hardware, or Licensee
moves the Permitted Hardware to any location other than the
Permitted Location or Licensee makes excess or unauthorized
copies of any Licensed Material.
8.3
Effect of Termination. Immediately upon a termination of the
License as identified in Section 8.2 above, all rights of
Licensee to use the Licensed Material shall terminate in their
entirety. The termination of this Agreement or the License,
however, shall not affect or impair any obligations or rights
that arose prior to the date of such termination or out of the
facts or occurrences which cause such termination. The
parties’respective indemnification obligations under Article
5 above shall survive the termination of this Agreement or
the License for any reason.
8.4
Return of Data. Upon the termination of this Agreement
for any reason, Licensee immediately shall return to
[Licensor] all the Licensed Material and all notes, data, reference
material, specifications, manuals, documentation, software,
integration, depictions, memoranda, programs, documents,
instruments, records, copies of any of the foregoing and all other
information which in any way relates to the Licensed
Material. Licensee shall not retain any copies of the
foregoing items.
ARTICLE 9
PRODUCT CHANGES
9.1
Right to Implement from Time to
Time. [Licensor] may
change the specifications and/or design of any Licensed
Material from time to time. [Licensor] will advise Licensee
of any material changes in specifications or designs before
delivering any Licensed Material incorporating such changes
to Licensee. Although [Licensor] has the right to modify the
Licensed Material from time to time, Licensee acknowledges
and agrees that [Licensor] shall have no obligation whatsoever
to update and/or provide any enhanced, modified or updated
versions of the Program or any Licensed Material to Licensee,
unless [Licensor] undertakes the contractual obligation to do so
pursuant to a separate agreement.
9.2
Discontinuance. [Licensor] shall have the right, at its
sole option, to discontinue the Program and the Licensed
Material at any time or from time to time. [Licensor] has no
obligation whatsoever to maintain any version of the Program
of the Licensed Material in its files. Any such
discontinuance by [Licensor] shall not constitute a breach by
[Licensor] under this Agreement.
ARTICLE 10
GENERAL
10.1
No Agency or
Partnership. This
Agreement does not make Licensee the agent, legal representative,
partner or joint venturer of [Licensor] for any purpose whatsoever.
Licensee has no right to create any obligation or
responsibility, express or implied, on behalf of or in the name
of [Licensor] or to bind [Licensor] in any manner or
concerning any matter.
10.2
Notices. All notices which concern this Agreement
shall be given in writing, as follows: (i) by actual delivery
of the notice into the hands of the party entitled to receive it or
by facsimile to such party, in which case the notice shall be
deemed given on the date it is sent; (ii) by Federal Express
or any other overnight carrier, in which case the notice
shall be deemed given on the day following the date it is
deposited with such carrier; or (iii) by mailing such notice by
registered or certified mail, return receipt requested, in
which case the notice shall be deemed given four (4) days following
the date it is deposited in the mail. All notices
provided under this Agreement shall be to the last known
address of the party entitled to receive it. Any party to
this Agreement may change its address for notice purposes, by
providing written notice of the change of address to each of the
other parties. All notices under this Agreement shall be
addressed as set forth on Exhibit
“B”.
10.3
Rate
Changes. The Fee set
forth in Exhibit “B” is the initial cost of the Program
and Licensed Material, which [Licensor] will deliver
following the execution of this Agreement. However, any
future prices for [Licensor]’materials which [Licensor]
provides shall be charged at [Licensor]’ then
applicable rates, which rates [Licensor] may increase or decrease
at any time or from time to time, in its sole
discretion.
10.4
Applicable
Law. The laws of the
State of Connecticut shall govern the interpretation of this
Agreement, irrespective of the fact that the one of the parties now
is or may become a resident of a different state. The
parties shall submit all disputes that arise under this Agreement
to state or federal courts located in the City of Danbury,
Connecticut for resolution. The parties acknowledge
that the aforesaid courts shall have exclusive jurisdiction over
this Agreement, and specifically waive any claims they may
have which involve jurisdiction or venue, including but not limited
to non- convenents. Service of process for any claim that
arises under this Agreement shall be valid if made in
accordance with the notice provisions set forth in Section 10.2 of
this Agreement. If service of process is made as
aforesaid, the party served agrees that such service shall
constitute valid service, and specifically waives any
objections the party served may have under any state or federal law
or rule concerning service of process. Service of
process in accordance with this Section shall be in addition
to and not to the exclusion of any other service of process method
legally available.
10.5
Contractual
Statute of Limitations.
Licensee agrees that it shall have the right to bring
any actions or claims relating to this Agreement, whether
contractual or sounding in tort, solely for a period of not
more than one (1) year after the event occurs which gives rise to
such action or claim, irrespective of any contrary statutes
of limitation available at law or in equity.
10.6
Construction. This Agreement has been prepared and
negotiations have occurred in connection with such
preparation pursuant to the joint efforts of the parties to this
Agreement. This Agreement therefore shall be construed simply
and fairly and not strictly for or against any party to this
Agreement.
10.7
Compliance with
Laws. Each party to
this Agreement shall comply with all applicable laws and
regulations.
10.8
No
Assignment. Licensee
shall not have the right to assign, transfer, sublicense, lease, or
in any manner convey all or any of its rights under this
Agreement. [Licensor] however does have the right to
assign all or any part of this Agreement.
10.9
Binding
Effect. This
Agreement shall be binding upon and inure to the benefit of
[Licensor] and Licensee as well as their respective
successors and permitted assigns (in the case of
[Licensor]).
10.10
Complete
Understanding. This
Agreement constitutes the complete understanding between the
parties. No modification of any of this Agreement’s
provisions shall be valid unless made in a written instrument
that both parties sign.
10.11
Descriptive
Headings. All
section headings, titles and subtitles are in this Agreement
for convenience of reference only, and are to be ignored in
any construction of this Agreement’s
provisions.
10.12
Severability
. If a court of competent jurisdiction rules that any one or
more of this Agreement’s provisions are invalid,
illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any of this
Agreement’s other provisions, and this Agreement shall
be construed as if it had never contained such invalid,
illegal or unenforceable provision. Without limiting
other provisions of this Agreement, the parties expressly intend
and agree that each and every limitation of liability,
disclaimer of warranties or exclusion of damages in this Agreement
be severable and independent of any other provision and be
enforced as such. Further, the parties expressly intend
and agree that if any remedy in this Agreement is determined to
have failed of its essential purpose, all limitations of
liability and exclusions of damages set forth in this Agreement
shall continue to remain in effect.
10.13
Prior Agreements Superseded and
Priority of this Agreement. This Agreement supersedes any prior
understandings, written agreements, or oral arrangements between
the parties respecting the subject matter that this Agreement
addresses. The terms of this Agreement shall govern if there
is any conflict between this Agreement and: (i) any
purchase order of Licensee; and (ii) any other written
instrument which concerns or affects the subject matter of this
Agreement including but not limited to correspondence and
promotional materials. Each of the parties has relied
specifically on the proceeding as a material condition to
entering into this Agreement.
10.14
Waiver. A party’s attempted waiver,
consent, or authorization of any kind whatsoever, whether
required under this Agreement, or granted pursuant to any breach or
default of any term of this Agreement, shall not be effective
or binding upon such party unless the same is in writing and
signed by such party. Any such waiver, consent or
authorization shall be valid only to the extent specifically
set forth in such writing. No failure or delay on the part of
either party to this Agreement to exercise any right, remedy,
power or privilege in connection with this Agreement shall preclude
or limit any other or further exercise of such right or the
exercise of any other right, remedy, power or
privilege.
10.15
Specific
Performance. The
parties agree that the breach of any provision of this
Agreement will cause irreparable harm to the non-breaching party.
Accordingly, each party to this Agreement shall have
the remedies that are available to it for the violation of any of
the terms of this Agreement with regard to the Licensed
Material, including but not limited to the equitable remedy
of specific performance.
Charter Oak Systems, LLC
Division of Charter Oak Lending Group,
LLC
3 Corporate DR PO Box 3196
Danbury, CT 06813-3196
203-778-9999 x 105
Fax 203-730-9845
e-mail: danbury@snet.net
Web:
http://www.mortgagecenter.net
