Last Modified: June 25, 2010
In consideration of the mutual promises contained in this Agreement, the sufficiency of which is hereby acknowledged the parties agree as follows:
1. Rights to Use the System
(a) Grant to Customer. Subject to the terms and conditions of this Agreement, PhilanTech grants Customer a non-exclusive, non-transferable, revocable, terminable and non-sublicensable limited license to access and use the portion and modules of the System set forth on the Order Form, as hosted by PhilanTech, solely for Customer’s internal purposes to manage information related to grants, grant applications, grant reports, donations and other related information. Except for the limited license granted above, this Agreement does not grant Customer any right (whether by license, ownership or otherwise) in or to intellectual property with respect to the System. All rights not expressly granted herein are reserved to PhilanTech. Customer expressly acknowledges and agrees that PhilanTech may include mechanisms within the System that (a) automatically disable the System at the end of a specific time period and/or limit the size of the database and/or (b) allow PhilanTech to access and modify the System.
(b) Restrictions. Customer shall not, and shall not permit any other person to, (i) duplicate, copy, modify, translate or otherwise alter, incorporate into other materials or create any derivative work based upon, in any manner whatsoever, in whole or in part, the System (or any portion thereof), (ii) reverse assemble, reverse engineer, disassemble, decompile or otherwise attempt to create or discover any source code of the System by any means whatsoever and (iii) assign, transfer, convey, sublicense, distribute, sell, rent, lend, lease, timeshare or in any way encumber (including, without limitation, by way of grant of security interest) the System (in whole or in part), nor act as an application service provider (ASP) or service bureau or otherwise provide access to, or services using the System, to third parties. Customer acknowledges and agrees that any copies of the System (or portion thereof, including without limitation any documentation) are and shall remain the property and Confidential Information (as defined below) of PhilanTech, and may not be distributed or otherwise made available to any third parties.
(c) Title. PhilanTech retains all right, title and interest in and to the System, all copies and derivative works thereof (by whomever produced), all related documentation and materials, and all patent, copyright, trademark, trade secret and other intellectual property rights inherent in or appurtenant to any of the foregoing. This license is not a sale of a copy of the System and does not render Customer the owner of a copy of the System. Ownership of the System and all components thereof shall at all times remain with PhilanTech, regardless of who may be deemed the owner of the tangible media in or on which the System (or any portion thereof) may be copied, encoded or otherwise fixed.
(d) Modifications and Upgrades. During the Term, if PhilanTech produces a new patch, release or version of the module(s) for which customer has paid the applicable fee set forth on the Order Form, PhilanTech shall automatically make available to Customer each such new release or version. During the Term, in the event PhilanTech produces a new module or a patch, release or version of a module for which Customer has not paid the applicable fee, Customer will be notified of said new module, patch, release or version and the applicable additional fee, if any, required for Customer to be granted access to such module.
(e) Passwords and Limited Access. In order to access the System, Customer must use a unique user identification (UserID) and password (collectively, an Account) for each individual user (each a User) which will be provided by PhilanTech or, at PhilanTech’s option, by Customer’s administrator. No User may, and Customer shall be responsible for ensuring that its Users do not, share the User’s Account information with any person. The Account’s access to the System is intended to be limited to only those portions of the System related to Customer and third parties with whom Customer interacts through the System; access, or attempted access, to any other portions of the System will be deemed unauthorized access and is strictly prohibited. Each User is responsible for the security and confidentiality of the Account information and the User’s security questions/answers, if any, to allow recovery of such Account information. If Customer or any User suspects that Account information has been compromised in any way, (i) Customer or such User, as applicable, should immediately change the password and (ii) Customer should immediately contact PhilanTech. Any access to or use of the System through or using a User’s Account shall be deemed access or use by Customer and such User, and PhilanTech is and shall not be responsible or liable for any unauthorized use of or access to the System through any User’s Account. In the event PhilanTech reasonably believes or suspects unauthorized use of an Account, PhilanTech may without prior notice suspend or disable such Account; provided that PhilanTech will promptly provide notice to Customer of such suspension or disabling.
(f) Equitable Relief. Customer acknowledges and agrees that due to the unique nature of the System, PhilanTech will not have an adequate remedy in money or damages in the event of any unauthorized use of or access to the System, including, without limitation, any of the prohibited actions in Section 1(b). In addition to any other remedies that may be available in law, in equity or otherwise, PhilanTech shall be entitled to obtain any injunctive relief that may be appropriate to prevent such unauthorized use or access.
2. Availability of the System.
(a) Availability. During the Term, PhilanTech will use its commercially reasonable efforts to make the System available to the Customer during regular business hours as long as Customer has paid the fees described in the Order Form. However, availability of the System online is subject to the functioning of Internet connectivity provided independently to each of Customer and PhilanTech, and PhilanTech is not responsible for outages or service disruptions.
(b) Customer Responsibilities. It is the responsibility of Customer to provide and maintain a suitable Internet connection and network and computer resources adequate to provide access to the System to its Authorized Users. Customer must also cooperate with PhilanTech to find relevant information to enable PhilanTech to trouble-shoot, find, verify and resolve any condition with respect to which Customer requests support.
(c) Support Services. Support services, if any, shall be provided in accordance with Exhibit B.
3. Fees and Taxes.
(a) Fees. In consideration of the rights granted herein and for access to the System, Customer shall pay the fees in the amount and in accordance with the Order Form. PhilanTech will invoice Customer for any additional services, support and expenses as provided in this Agreement. Unless otherwise specified in the Order Form, all payments are due within thirty (30) days of date of invoice, and any late payment will accrue interest at a rate equal to the lesser of two percent (2%) per month or the highest rate allowed by law, and shall entitle PhilanTech to suspend access to the System and/or provision of any support or other services until such payment has been made. All fees paid are non-refundable, and PhilanTech shall have no obligation to refund any portion of such fees paid, regardless of when this Agreement is terminated. PhilanTech reserves the right to modify the fees specified in the Order Form upon thirty (30) days written notice to Customer.
(b) Taxes. Customer is solely responsible for the payment of any taxes (including sales or use taxes, intangible taxes and property taxes) resulting from CustomerÂ’s acceptance of this Agreement and use of PhilanTech Services, exclusive of taxes based on PhilanTechÂ’s income and PhilanTech shall add any such taxes to the applicable invoices; provided, however, PhilanTech shall not charge any such taxes to the extent Customer provides appropriate documentation of its exemption from the applicable taxes. Customer agrees to indemnify, defend and hold harmless PhilanTech from all claims and liability arising from CustomerÂ’s failure to report its obligation to pay or to pay any such taxes.
4. Term and Termination.
(a) Term. This Agreement is effective as of the date set forth in the Order Form (the Effective Date) and shall continue for one (1) year from the Effective Date (the Initial Term). Thereafter, this Agreement shall automatically renew for additional one (1) year terms (each a Renewal Term, and collectively with the Initial Term, the Term) unless one party notifies the other in writing of its intention not to renew at least thirty (30) days prior to the end of the then-current Term. PhilanTech will invoice Customer for the applicable fees automatically from year to year, and Customer shall pay such fees, unless this Agreement is terminated as provided herein.
(b) Termination for Cause. Either party may terminate this Agreement immediately: (i) in the event of the insolvency, bankruptcy or voluntary dissolution of the other party; or (ii) if the other party breaches any term or condition provision hereunder, and if such breach continues and is not cured within thirty (30) days after written notice thereof by the non-breaching party. Such termination right is in addition to, and not in limitation of, any other right or remedies available to the terminating party.
(c) Effect of Termination. Upon the expiration or termination of this Agreement, Customer shall immediately cease all use of the System and return to PhilanTech or destroy all copies of any portion of the System (including without limitation any documentation) and any and all Confidential Information of PhilanTech, and so certify to PhilanTech. Notwithstanding anything to the contrary in this Agreement, any termination or expiration of this Agreement shall not relieve Customer of any of its payment obligations accrued hereunder prior to such termination. All fees paid are non-refundable, and PhilanTech shall have no obligation to refund any portion of such fees paid, regardless of when this Agreement is terminated.
5. Data and Information.
(a) Confidentiality. Each of the parties acknowledges that under this Agreement it may receive information treated as confidential and proprietary information by the other party (Confidential Information), which, (i) in the case of PhilanTech means the System, and all derivatives and analyses thereof, and (ii) in the case of Customer means the information and data that Customer enters into the System. Each party agrees to maintain the Confidential Information in strict of confidence and will not, at any time during the Term of this Agreement use, disseminate or disclose any Confidential Information of the other party to any person or entity other than its employees (or, in the case of PhilanTech, its consultants and advisors) who have a reasonable need to know, who have been apprised of this restriction and who are themselves bound by similar nondisclosure restrictions. In the event of any loss or disclosure of the Confidential Information, the party responsible for such loss or disclosure shall notify the other party immediately. Upon termination of this Agreement, all documents and records containing the Confidential Information will be returned to the party who disclosed or provided such Confidential Information. Notwithstanding anything to the contrary contained herein, Confidential Information shall not include information that (i) is or becomes generally available to the public other than through breach hereof by either party; (ii) is communicated by a third party that had no confidentiality obligations with respect thereto; or (iii) was independently developed or acquired by the receiving party, without use of, or reliance upon the Confidential Information of the other party. In addition, the foregoing confidentiality obligations shall not apply to the extent that disclosure of the other party’s Confidential Information is required by law, including without limitation, pursuant to the terms of a court order, provided that the party so required to disclose has given the other party prior notice of such disclosure and an opportunity to contest such disclosure.
(b) Right to Use Data. Notwithstanding anything to the contrary in this Agreement, PhilanTech shall have the right to use, reproduce, adapt, modify and otherwise exploit any data and information entered into or provided through the System (i) to provide the rights granted, and any services provided, under this Agreement or with respect to the System, (ii) for purposes of improving and analyzing System functionality and operation, and (iii) for PhilanTech’s business purposes, including without limitation, creation and publication of reports, studies and analyses of such data and information (whether or not for commercial purposes); provided, however, that in the case of (iii) above, all such use shall be in de-identified or aggregate form such that Customer and its specific projects and data cannot be individually identified from the materials produced by Customer. Any such de-identified or aggregate data or information shall not be deemed or considered Customer’s Confidential Information.
6. Government Restricted Rights. If the license to System is being used by the U.S. Government or any related governmental organization, the System is commercial computer software and commercial computer software documentation as such terms are used in 48 C.F.R. (FAR) section 12.212 and 48 C.F.R. (DFAR) section 227.7202, as applicable, and are provided to such governmental organization (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. (FAR) section 12.212, or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. (DFAR) section 227.7202-1 and section 227.7203-3. Such governmental organization’s rights to use, modify, reproduce, release, perform, display, or disclose the System are subject to the restrictions set forth in this Agreement. Any technical data provided that is not covered by the above provisions is deemed to be technical data-commercial items pursuant to 48 C.F.R. (DFAR) section 252.227-7015(a). Any use, modification, reproduction, release, performance, display or disclosure of such technical data shall be governed by the terms of 48 C.F.R. (DFAR) section 252.227-7015(b). PhilanTech shall be a Contractor/Offeror, as such terms are defined in 48 C.F.R. (FAR) Section 227.7201.
(a) By PhilanTech. PhilanTech hereby represents and warrants, subject to paragraph (c) below, that it (i) has the right to enter into this Agreement and (ii) has the right to grant the licenses and provide the services set forth in this Agreement.
(b) By Customer. Customer hereby represents and warrants that it has the right to enter into this Agreement.
(c) Warranty Disclaimer. THE SYSTEM IS BEING MADE AVAILABLE TO CUSTOMER AS-IS AND AS-AVAILABLE. PHILANTECH MAKES NO, AND HEREBY SPECIFICALLY DISCLAIMS ANY WARRANTY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY CONCERNING THE SYSTEM, WHETHER EXPRESS OR IMPLIED, AND WHETHER OR NOT ARISING FROM ANY COURSE OF DEALING, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMPLETENESS, USE, ACCURACY, TITLE OR NONINFRINGEMENT. IN ADDITION, PHILANTECH MAKES NO WARRANTY THAT THE SYSTEM WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT CUSTOMER’S OR ANY THIRD PARTY’S USE OF THE SYSTEM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE; NOR DOES PHILANTECH MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SYSTEM NOR THAT DEFECTS OR ERRORS IN THE SYSTEM WILL BE CORRECTED. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ACCURACY OF THE SYSTEM AND THE RESULTS GENERATED BY THE SYSTEM ARE DIRECTLY IMPACTED BY CUSTOMERÂ’S CUSTOMIZATIONS AND IMPLEMENTATIONS OF THE SYSTEM, AND THE NATURE OF CUSTOMERÂ’S USE OF THE SYSTEM, AS WELL AS OTHER VARIABLES OUTSIDE OF THE DIRECT CONTROL OF PHILANTECH.
8. Limitation of Liability. PHILANTECH SHALL NOT BE LIABLE TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER RESULTING FROM (I) THE USE OR THE INABILITY TO USE THE SYSTEM, (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY FAILURE OF THE SYSTEM, (III) DAMAGES FOR LOSS OF PROFITS, REVENUE OR GOODWILL, (IV) WORK STOPPAGE IN ANY WAY ARISING OUT OF OR RELATED TO THE SYSTEM OR THIS AGREEMENT, (V) COMPUTER FAILURE OR MALFUNCTION OR (VI) ANY AND ALL OTHER COMMERCIAL DAMAGES, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF ANY REPRESENTATIVE OF PHILANTECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL PHILANTECH’S TOTAL LIABILITY TO CUSTOMER, IN THE AGGREGATE, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SYSTEM EXCEED THE FEES PAID BY CUSTOMER TO PHILANTECH IN THE SIX (6) MONTHS PRECEDING THE CLAIM BY CUSTOMER.
9. Allocation of Risk. The provisions of Sections 7 and 8 allocate the risks under this Agreement between Customer and PhilanTech, and the parties have relied upon the limitations set forth herein in determining whether to enter into this Agreement.
10. Promotion. In consideration of the pricing schedule provided on the Order Form, Customer agrees to the following promotional activities:
(a) Press Release. PhilanTech may issue press release announcing Customer’s selection and purchase of PhilanTech’s products and services.
(b) Use of Name. Customer grants PhilanTech the right to include Customer’s name published lists referencing the users of the products and services of PhilanTech.
(c) References. From time to time, and not exceeding a reasonable frequency, Customer will provide technical and executive reference telephone calls.
(d) Customer Profile. Customer hereby authorizes PhilanTech to publish a mutually agreed upon customer profile highlighting key business process use or unique application of PhilanTech.
(a) Modification of the Agreement. The terms of this Agreement may only be modified by a written agreement duly signed by both parties hereto. Variance from the terms and conditions of this Agreement in any Customer purchase order or other written notification will be of no effect.
(b) Assignment. This Agreement may not be assigned by Customer without the prior written consent of PhilanTech; provided, however, that such consent shall not be required for the assignment of this Agreement by Customer to a wholly-owned subsidiary of Customer or to a successor corporation or entity in connection with a merger, consolidation or transfer of all or substantially all of the assets of Customer by such successor corporation or entity. In such event, Customer shall provide prior written notice of such assignment to PhilanTech. Any assignment in violation of the foregoing shall be null and void ab initio. PhilanTech may assign this Agreement or any of its rights or obligations hereunder to a third party, provided that such third party undertakes in writing to assume the applicable rights and obligations hereunder.
(c) Dispute Resolution. Other than with respect to a failure by Customer to make payments when due, in the event of any dispute between the parties with respect to any matter related to this Agreement, the parties shall first attempt to resolve such dispute through good faith in person, or if in person is not practical, telephone discussions between an executive officer (or equivalent, if such position does not exist) of each party. In the event such discussions fail after no less than twenty (20) days and after good faith efforts, to reach a resolution, each party shall be permitted to seek other legal recourse. The foregoing shall not apply with respect to any claim for injunctive relief.
(d) Governing Law; Forum. This System is controlled and operated by PhilanTech, Inc. from PhilanTech’s offices in the District of Columbia. The System is intended for the use of residents of the United States. The laws of the District of Columbia govern this Agreement, and use of the System. PhilanTech and Customer each agree that the courts of District of Columbia, but no other jurisdiction, have exclusive jurisdiction for any claim, action or dispute under this Agreement, and use of the System. Customer and PhilanTech also agree and expressly consent to the exclusive exercise of personal jurisdiction in the District of Columbia.
(e) Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(f) Notices. Any notice or report required or permitted by this Agreement, except as otherwise set forth in this Agreement, shall be in writing and shall be deemed sufficient upon receipt, when delivered personally or by courier, overnight delivery service or confirmed facsimile, or forty-eight (48) hours after being deposited in the regular mail as certified or registered mail (airmail if sent internationally) with postage prepaid, if such notice is addressed to the party to be notified at such party’s address or facsimile number as set forth below or as subsequently modified by written notice.
(g) Severability; Waiver. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith, in order to maintain the economic position enjoyed by each party as close as possible to that under the provision rendered unenforceable. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights or of any other rights hereunder.
(h) Relationship of the Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto.
(i) Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
(j) Entire Agreement. This Agreement, including all Exhibits hereto, is the product of both of the parties hereto, and constitutes the entire agreement between such parties pertaining to the subject matter hereof and merges all prior negotiations and drafts of the parties with regard to the transactions contemplated herein. Any and all other written or oral agreements existing between the parties hereto regarding such transactions are expressly canceled.
(k) UCITA. The parties expressly agree and acknowledge that to the fullest extent permitted by law, the provisions of the Uniform Computer Information Transactions Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement.
(l) Survival. The following sections shall survive any termination or expiration of this Agreement: Sections 1(b), 1(c), 1(f), 3, 4(c), 5, 7(c), 8, 9 and 11.