1. LICENSE GRANT.

 

• Grant of License. If applicable to a particular Project and provided for on the relevant Terms and Support Services attached as Exhibit A and B, and subject to the terms and conditions of this Agreement, including Customer making the payments for which it is obligated hereunder, WEBMAX hereby grants to Customer a limited, royalty-free, non-exclusive, non- transferable (including  no  right  to  sublicense)  license  (the  “License”) to use the Product in the course of its internal business activities for the Term, or for such other longer or shorter period as may be expressly stated in the relevant Terms and Support Services attached as Exhibit A (the “License Period”). Except to the limited extent necessary for back-up purposes or testing and development, Customer may not make additional copies of the Product. Customer must reproduce and include any copyright notice(s) of WEBMAX or its licensors, and any other notices that appear on the original Product in any copies and media therefor.  With the exception of Customer’s employees, Customer shall prevent all other individuals (“Unauthorized Individuals”) from accessing the Product and Documentation, and shall immediately inform WEBMAX if any Unauthorized Individuals do access the Software and/or Documentation.

 

• Content and Data on Customer’s Websites. WEBMAX shall remain the sole owner of all WEBMAX Content and has access to repurpose data collected from WebMax’s provided 1003 application and digital forms except for mortgage related purposes.  With the exception of WEBMAX Content and data rights, Customer shall remain the sole owner of all other data, content and images for Customer’s Websites.  Customer shall be permitted to change their content, but not the WEBMAX Content, on Customer’s Websites.

 

• Security of Hosted Data. Customer and WEBMAX agree and acknowledge that WEBMAX shall engage Amazon Web Services.  An overview of Amazon’s security processes is available at the following link: https://d0.awsstatic.com/whitepapers/aws-security-whitepaper.pdf .  A copy of the security processes can also be supplied to Customer by WEBMAX upon Customer’s request.

 

• Internet Delays. Customer’s use of the Product may be subject to limitations, delays and other problems inherent in the use of internet and electronic communications.  WEBMAX shall not be responsible for any delays, delivery failures or other damage resulting from such problems.

 

• Compliance with Law. Customer shall not use the Product (directly or indirectly) to conduct or solicit the performance of any business or activity which is tortuous or prohibited by law.

 

 

• Modification of Source Code. Customer shall not modify and shall not otherwise allow the modification of the Product’s source code in any way without the prior written consent of WEBMAX. Customer shall not use the Product, Documentation or any materials incident thereto to develop computer software without the prior written consent of WEBMAX.

 

• Customer shall not export or reexport the Product and shall not allow the Product to be exported or perform any act in violation of any applicable law, including (without limitation) the Export Administration Act, 50 U.S.C. §2401 et. seq., and the Export Administration Regulations, 15 C.F.R. Parts 730-774.

 

• Reverse Engineering. Customer shall not reverse engineer, decompile, disassemble or translate the Product or access the Product using third party software, without the prior written consent of WEBMAX.  Customer shall not allow the Software to be reverse engineered, decompiled, disassembled, translated, or accessed using third party software without the prior written consent of WEBMAX.

 

• No Assignment.  Any License granted pursuant to this Agreement may not be assigned by Customer without the prior written consent of WEBMAX.  Any purported assignment in violation of this section shall be void.

 

1. PROPRIETARY RIGHTS. Notwithstanding any rights or licenses granted pursuant to this Agreement, WEBMAX (or its licensors) retains all rights (including Intellectual Property Rights), title, and interest in and to the WEBMAX Technology, the Computer-Related Developments, the Deliverables, and the Product, including all copies and portions thereof, including, without limitation, the ownership rights to any and all patents, copyrights, trademarks and trade secrets in connection with the WEBMAX Technology, the Computer-Related Developments, the Deliverables, and the Product. The License does not constitute a sale by WEBMAX to Customer of the Product or any portion or copy of it. WEBMAX reserves to itself any and all rights not expressly granted to Customer under this Agreement. The Parties shall execute such instruments and take such further actions as may be appropriate to give full legal effect to this Section 5.

 

1. MAINTENANCE AND SUPPORT. Except as expressly provided in Exhibit A or B, WEBMAX shall have no obligation to provide maintenance or support for any Product. If WEBMAX elects to offer maintenance and support, such maintenance and support shall be provided on a time and materials basis, unless otherwise set forth in the relevant Exhibit A and B. Maintenance includes new releases, corrections, enhancements, and improvements to the Product and related documentation. Maintenance also includes reasonable assistance and consultation to assist  Customer  in  resolving  problems  with the use of the Product, including  the  verification,  diagnosis,  and  correction  of  material errors and defects in the Product. Maintenance shall not include new products sold separately by WEBMAX. Further, maintenance shall not include services or assistance to ensure compatibility with third party software or hardware.  Customer hereby acknowledges that WEBMAX’s completion of any maintenance and support shall require Customer to cooperate with WEBMAX in good faith and provide information as may be requested by WEBMAX from time to time.  Customer hereby agrees to provide such good faith cooperation and information.  Customer hereby authorizes WEBMAX to access the personnel, facilities, computers, servers, software and data of Customer for the purposes of performing the Support Services and any other services set forth in the Agreement.

 

Maintenance, if provided, will be available for the current release of the Product on computer platforms that WEBMAX commercially supports; prior releases shall be maintained for twelve months following a new release.

 

1. CONFIDENTIALITY

 

• For purposes of this Agreement, Confidential Information shall mean (i) all information, including without limitation information regarding Customer’s business activity and Customer’s customer data and reporting, belonging to Customer furnished to WEBMAX in written, graphic or machine readable form or otherwise accessed by WEBMAX in connection with the performance of this Agreement and all exhibits attached unto (ii) all software and all information furnished by WEBMAX to Customer in connection therewith, in each case in written, graphic or machine readable form in connection with the performance of this Agreement  and all exhibits attached thereto.

 

• It is expected that each party will disclose (each a “Disclosing Party”) to the other party (each a “Recipient”) certain confidential information (“Confidential Information”) and each Recipient recognizes the value and importance of the protection of the Disclosing Party’s Confidential Information. All Confidential Information shall remain the sole property of the Disclosing Party (or its licensors), which shall own all rights, title, interest and Intellectual Property Rights therein. Only information which is identified as confidential pursuant to the next paragraph or elsewhere in this Agreement, shall be deemed Confidential Information.  Customer acknowledges and agrees that the WEBMAX Technology, the Computer-Related Developments, the Deliverables, and the Product are the Confidential Information of WEBMAX.

 

• Disclosing Party may designate information as confidential by: (a) stamping written information or other physical media as “Confidential” prior to disclosure; (b) indicating in the visual display of a program that the program is confidential; or (c) identifying oral information as confidential prior to the time of disclosure to Recipient, and, within thirty (30) days following such disclosure, the Disclosing Party shall confirm in writing to Recipient the confidential nature of such oral information.

 

• Except as expressly allowed in this Agreement, the Recipient agrees not to duplicate in any manner the Disclosing Party’s Confidential Information or to disclose it to any third party or to any of their respective employees not having a need to know same to implement this Agreement.

Each Recipient agrees to keep the Disclosing Party’s Confidential Information in a safe and secure place, protect it from unauthorized use or disclosure, and monitor access to it. Recipient shall use the Disclosing Party’s Confidential Information solely for the implementation of this Agreement and for no other purpose, whether for Recipient’s own benefit or the benefit of any third party.

 

• Confidential Information shall not include, and the foregoing restrictions shall not apply to, information which Recipient can prove: (i) is or becomes a part of the public domain without any breach of confidentiality by Recipient; (ii) was in Recipient’s lawful possession prior to the disclosure and had not been subject to limitations on disclosure or use; (iii) is entirely independently developed by Recipient without any knowledge or reference to the Confidential Information; (iv) is lawfully disclosed hereafter to Recipient, without restriction, by a third party who did not acquire the information from the Disclosing Party; or (v) is disclosed to the minimum required by order of a court of competent jurisdiction or government regulatory agency after Recipient has a protective order or other confidential treatment therefor, if available.

 

1. WARRANTY AND DISCLAIMER. Subject to the conditions and limitations on liability stated herein, WEBMAX warrants that it will perform the services under this Agreement in a competent and workmanlike manner, and that its personnel will have the proper skill, training and background to perform their assigned tasks in accordance with the relevant Terms and Support Services. Customer’s exclusive remedy for a breach of these warranties is to notify WEBMAX of the alleged breach within thirty (30) days after the allegedly non-conforming services have been provided, whereupon WEBMAX, in its sole and absolute discretion, will either re-perform the allegedly non-conforming services in a conforming manner or refund to Customer the specific fees paid by Customer that are directly attributable to the allegedly nonconforming services. EXCEPT FOR THE FOREGOING, ANY AND ALL PRODUCTS OR SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FURTHER, WEBMAX DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE PRODUCT OR WRITTEN MATERIALS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. Customer understands that WEBMAX is not responsible for and will have no liability for hardware, software, or other items or any services provided by any persons other than WEBMAX (except for services provided by a person or entity under subcontract to WEBMAX).

 

1. PATENT AND COPYRIGHT INFRINGEMENT INDEMNIFICATION BY WEBMAX. Subject to the terms and conditions of this Agreement, WEBMAX shall indemnify, defend, and hold Customer and its officers, directors, agents and employees harmless from liability resulting from third-party claims of infringement by the Product of any United States patent or copyright, provided WEBMAX is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over the defense and all negotiations for a settlement or compromise; WEBMAX will not be responsible for any settlement it does not approve in writing. THE FOREGOING IS IN LIEU OF ANY WARRANTIES OF NONINFRINGMENT, WHICH ARE HEREBY DISCLAIMED IN THEIR ENTIRETY. The foregoing obligation of WEBMAX does not apply with respect to Product or portions or components thereof (i) not supplied by WEBMAX,  (ii) made  in  whole  or in part in accordance to Customer specifications, (iii) which are modified after shipment from WEBMAX if the alleged infringement relates to such modification, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Product is incident to an infringement not resulting primarily from the Product or is not strictly in accordance with the License. Customer will indemnify, defend and hold WEBMAX and its officers, directors, agents and employees harmless from all liabilities, damages, settlements, attorneys’ fees and expenses related to a claim of infringement or misappropriation excluded from WEBMAX’s indemnity obligation by the foregoing.

 

1. INDEMNIFICATION BY CUSTOMER. Customer shall release, indemnify, defend and hold harmless WEBMAX (including WEBMAX’s officers, members, and agents), WEBMAX’s subsidiaries, WEBMAX’s affiliates and WEBMAX’s suppliers and distributors from and against any and all losses, costs, claims, suits, obligations, demands, damages, liabilities, expenses, and reasonable attorney fees on account thereof resulting from or in connection with: (i) Customer’s failure to comply with the terms of the Agreement; (ii) any claim regarding Customer’s use of the Product; (iii) any claim regarding the content, data, and/or images on Customer’s Websites except for any claims resulting from WEBMAX’s breach of Section 4.3 of this Agreement; (iv) Customer’s operation of its business; (v) any modifications to the Product’s source code caused by Customer; and (v) any attempted transfer by Customer of Customer’s rights to use the Product.

 

1. LIMITATION OF LIABILITY. EXCEPT FOR A BREACH OF SECTION 4, 5, OR 7, NEITHER PARTY SHALL BE LIABLE TO THE OTHER IN CONTRACT, TORT OR OTHERWISE, WHATEVER THE CAUSE THEREOF, FOR ANY LOSS OF PROFIT, BUSINESS OR GOODWILL OR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE COST, DAMAGES OR EXPENSE OF ANY KIND, HOWSOEVER ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT. EXCEPT FOR A PARTY’S PAYMENT OBLIGATION, TO SATISFY A PARTY’S INDEMNIFICATION OBLIGATION UNDER SECTIONS 9 OR 10, OR FOR A BREACH OF SECTIONS 4, 5, OR 7, THE CUMULATIVE LIABILITY OF EACH PARTY TO THE OTHER PARTY FOR ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING FROM OR RELATING TO THIS AGREEMENT UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, IN TORT, OR OTHERWISE, WILL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO WEBMAX HEREUNDER.
2. TERM AND TERMINATION

 

• The term of your agreement shall be specified in your written agreement.

 

9.2.             Termination Rights.

 

• WEBMAX may terminate this Agreement and any License granted herein immediately upon written notice to Customer for a breach of Section 4.

 

• Each Party will have the right to terminate this Agreement upon written notice to the other Party: (a) immediately, if the other Party breaches Section 7; or (b) if the other Party breaches any other provision of this Agreement, and does not cure such breach within thirty (30) days following written notice thereof from the non-breaching party; or (c) if the other Party ceases business operations, becomes insolvent, or is subject to any bankruptcy or other similar legal process or proceeding.

 

12.3     Effects of Termination.     Upon any termination or expiration of this Agreement

(i) each party will promptly return all Confidential Information of the other party, and (ii) all licenses granted hereunder shall cease. Any outstanding payment obligation and the following provisions will survive any such termination or expiration: Section 1, 4, 5, 7, 8, 9, 10, 11 and 13. In addition, Customer will be liable for all monies earned by WEBMAX up to the effective date of termination.

 

1. GENERAL

 

• Relationship of Parties. The Parties to this Agreement are independent contractors and this Agreement shall not establish any relationship of partnership, joint venture, employment, franchise, or agency between the Parties. Neither Party shall have the power to bind the other or incur obligations on the other’s behalf without the other’s prior express written consent.

 

• Independent Contractors WEBMAX will perform all services as an independent contractor and not as an employee, partner or joint venture of Customer. WEBMAX agrees to (i) pay all wages and to provide any benefits required by any applicable employment agreement, contract or benefit plan, (ii) to pay  all  Federal,  State  and  local  taxes  with  respect to employment (including Federal, Social Security and State Unemployment Compensation taxes) and (iii) to comply with all other applicable rules and regulations of any duly constituted governmental authority with respect to the employment of any individuals supplied to perform services for Customer hereunder.

 

• All notices, consents, waivers, and other communications intended to have legal effect under this Agreement must be in writing, must be delivered to the other Party at the address set forth at the top of this Agreement by personal delivery, certified mail (postage pre-paid), a nationally recognized overnight courier, or via facsimile with verified receipt of transmission, and will be effective upon receipt (or when delivery is refused). Any such notices sent to WEBMAX must be addressed to the attention of its Project Manager. Any such notices sent to Customer must be addressed to the attention of the Project Manager. Each Party may change its address for receipt of notices by giving notice of the new address to the other Party.

 

• Governing Law and Venue. This Agreement will be solely and exclusively governed, construed and enforced in accordance with the laws of the State of New Jersey, without reference to its provisions regarding conflicts of law. Any action or proceeding arising from or relating to this Agreement may be brought in a federal court in the District of New Jersey or in state court in Gloucester County, New Jersey, and each party irrevocably submits to the jurisdiction and venue of such court in any such action or proceeding. The United Nations Convention on Contracts for the Sale of International Goods does not apply to this Agreement.

 

• Injunctive Relief. It is understood and agreed that, notwithstanding any other provision of this Agreement, any breach of Section 4 by Customer or Section 7 by either Party will cause irreparable damage for which recovery of money damages would be inadequate, and that the non-breaching Party will therefore be entitled to seek timely injunctive relief to protect such Party’s rights under this Agreement in addition to any and all remedies available at law.

 

• Attorneys’ Fees. In the event that any action or proceeding is brought in connection with this Agreement, the prevailing Party (on the merits, by motion, or otherwise) shall be entitled to recover its costs and reasonable attorneys’ fees in addition to any other relief it may receive.

 

• Compliance with Laws. Each Party agrees to comply with all applicable laws, rules, and regulations in connection with its activities under this Agreement, including any applicable export controls imposed by the U.S. Export Administration Act of 1978, as amended (the “Act”) and the regulations promulgated under the Act.

 

• The failure of either Party to require performance by the other Party of any provision of this Agreement will not affect the full right to require such performance at any time thereafter; nor will the waiver by either Party of a breach of any provision of this Agreement be taken or held to be a waiver of the provision itself.

 

• If any provision of this Agreement is unenforceable or invalid under any applicable law or is so held by applicable court decision, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.

 

• Neither Party may transfer or assign this Agreement in whole or in part or any of its rights or obligations hereunder, by delegation, operation of law, or otherwise, without the prior written consent of the other Party, except (i) to any of its affiliates, or (ii) in connection with a sale of all or substantially all of the business or assets of such Party, whether by merger, reorganization, acquisition, sale or otherwise. As used herein, an “affiliate” shall mean any corporation or other legal entity (including joint ventures) controlling, controlled by or under common control of a Party, through stock ownership or other equity interest, direct or indirect. Any attempted assignment in violation of this section shall be void. This Agreement will bind and inure to the benefit of the respective successors and permitted assigns of the Parties.

 

            13.11   Force Majeure. Neither Party will be liable for any failure to fulfill its obligations hereunder due to causes beyond its reasonable control, including acts or omissions of government or military authority, acts of God, shortages of materials, transportation delays, earthquakes, fires, floods, labor disturbances, riots, or wars.

 

            13.12   Full Power. Each Party warrants that it has full power to enter into and perform this Agreement, and the person signing this Agreement on such Party’s behalf has been duly authorized and empowered to enter into this Agreement.

 

            13.13   Construction. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or extent of such section or in any way affect this Agreement. Unless otherwise expressly stated, when used in this Agreement the word “including” means “including but not limited to.”

 

            13.14   Entire Agreement and Amendment. This Agreement together with all Exhibits A completely and exclusively states the agreement of the Parties regarding its subject matter. It supersedes, and its terms govern, all prior or contemporaneous understandings, agreements, or other communications between the Parties, oral or written, regarding such subject matter. This Agreement may be amended only in a written document signed by both Parties.

 

13.15   Counterparts.  This Agreement may be executed in one or more counterparts or by facsimile, each of which when executed and delivered shall be an original, and all of which when executed shall constitute one and the same instrument.  The parties expressly agree that if a  signature on this Agreement is not an original, but is a digital, mechanical, or electronic reproduction (such as, but not limited to, a photocopy of, fax, email, PDF, Adobe image, jpeg, telegram, telex or telecopy), then such digital, mechanical, or electronic reproduction shall be as enforceable, valid, and binding as, and the legal equivalent to, an authentic and traditional ink-on-paper, original wet-signature, penned manually by its signatory.