SOFTWARE
LICENSE AGREEMENT
THIS IS A LEGAL AGREEMENT BETWEEN YOU, THE
EMPLOYEE, THE INDIVIDUAL, OR THE ENTITY IDENTIFIED AS “CUSTOMER” (AS DEFINED
HEREinafter) AND DB DESIGN (DANIEL BOORN).
THIS AGREEMENT STATES THE TERMS and conditions UNDER WHICH CUSTOMER MAY
USE THE PHP Real Estate Classifieds Script (PHP REC). BY clicking on the accept button, INSTALLING, HAVING
PHP Real Estate Classifieds Script (PHP REC) INSTALLED ON CUSTOMER’s BEHALF, COPYING, HAVING PHP Real Estate Classifieds Script (PHP REC) COPIED ON CUSTOMER’s BEHALF, USING OR HAVING PHP Real Estate Classifieds Script (PHP REC) USED ON
CUSTOMER’s BEHALF, CUSTOMER INDICATES THAT CUSTOMER HAS READ AND UNDERSTANDS
THIS AGREEMENT AND AGREES TO BE BOUND BY THE TERMS SET FORTH IN THIS
AGREEMENT. IF “PHP Real Estate Classifieds Script (PHP REC)” IS
INSTALLED, COPIED OR USED ON BEHALF OF CUSTOMER, THE TERMS SET
PHP Real Estate Classifieds Script (PHP REC) Agreement
This PHP Real Estate Classifieds Script (PHP REC) Agreement (“Agreement”) is made
as of the Effective Date by and between DB DESIGN (DANIEL BOORN), a corporation
with offices located at
W I T
N E S S E T H:
WHEREAS, DB DESIGN (DANIEL BOORN) owns that certain PHP Real Estate Classifieds Script (PHP REC) application entitled PHP Real Estate Classifieds Script (PHP REC); and
WHEREAS, Customer has had an opportunity to review and approve the
functions and utilities of PHP Real Estate Classifieds Script (PHP REC) and is familiar with the use and
operation of PHP Real Estate Classifieds Script (PHP REC); and
WHEREAS, Customer has independently determined that PHP Real Estate Classifieds Script (PHP REC) will meet the needs of Customer for a Web hosting with the following
installed, PHP 4+, PHP GD Modules, PHP cURL Modules,
PHP session Modules, PHP MySQL Modules, MySQL Version 4+, 1 MySQL database for PHP Real Estate Classifieds Script (PHP REC) application at the Facility (as defined below); and
WHEREAS, Customer desires to receive a
license to use PHP Real Estate Classifieds Script (PHP REC).
NOW THEREFORE, in consideration
of the mutual benefits of the covenants and restrictions herein contained, DB DESIGN (DANIEL BOORN) and Customer hereby agree as follows:
ARTICLE
I: RECITALS AND DEFINITIONS
Section 1.01 -- Recitals: The above recitals and
identification of parties are true and correct.
Section 1.02 -- Definitions: The following definitions
shall apply:
(1)
Access:
The term “Access” and variants thereof shall mean to store data in,
retrieve data from or otherwise approach or make use of (directly or
indirectly) through electronic means or otherwise.
(2)
PHP Real Estate Classifieds Script (PHP REC): The term “PHP Real Estate Classifieds Script (PHP REC)” shall mean the object code for that certain PHP Real Estate Classifieds Script (PHP REC) application, including the Documentation, as provided by DB DESIGN
(DANIEL BOORN) to Customer hereunder, including Updates.
(3)
Associate:
The term “Associate” shall mean an employee of DB DESIGN (DANIEL BOORN)
or an independent contractor hired by DB DESIGN (DANIEL BOORN).
(4)
Authorized
Person: The term “Authorized Person” shall mean
Customer or employees of Customer who agree in writing to maintain the
confidentiality of Confidential Information and individuals or organizations
who are authorized in writing by DB DESIGN (DANIEL BOORN) to receive
Confidential Information and who agree in writing to maintain the
confidentiality of such Confidential Information.
(5)
Cancellation
Notice: The term “Cancellation Notice” shall mean
that written notice sent by DB DESIGN (DANIEL BOORN) to Customer seeking to
cancel this Agreement because of breach of this Agreement by Customer.
(6)
Confidential
Information: The term “Confidential Information” shall
mean all information concerning this Agreement, PHP Real Estate Classifieds Script (PHP REC), and the
business and technical plans of DB DESIGN (DANIEL BOORN) which is disclosed by DB
DESIGN (DANIEL BOORN) to Customer or learned by Customer.
(7)
Defects:
The term “Defects” shall mean programming errors which substantially
impair the performance, utility and functionality of PHP Real Estate Classifieds Script (PHP REC), as
represented in the Documentation.
(8)
Defect
Notice: The term “Defect Notice” shall mean that
certain written notice from Customer to DB DESIGN (DANIEL BOORN) identifying
Defects.
(9)
Delivery
Date: The term “Delivery Date” shall mean the date PHP Real Estate Classifieds Script (PHP REC) is delivered to Customer (as applicable).
(10)
Deposit: The
term “Deposit” shall mean a sum of money equal to fifty percent (50%) of the
Price.
(11)
Documentation:
The term “Documentation” shall mean the PHP Real Estate Classifieds Script (PHP REC) user guide (in
electronic or printed format) as provided to Customer on the Delivery Date.
(12)
Documentation
Fee: The term “Documentation Fee” shall mean the
sum of money paid by Customer to DB DESIGN (DANIEL BOORN) for additional copies
of Documentation requested by Customer pursuant to Section 3.02. determined in accordance with DB DESIGN (DANIEL BOORN) then
standard rates as of the date Customer’s request for additional copies of the
Documentation is received by DB DESIGN (DANIEL BOORN).
(13)
Effective
Date: The term “Effective Date” shall mean the
earlier of the date that the Sales Agreement is executed by DB DESIGN (DANIEL
BOORN) and Customer or the date PHP Real Estate Classifieds Script (PHP REC) is installed or used.
(14)
Event
of Bankruptcy: The term “Event of Bankruptcy” shall mean:
(1) the filing of a petition under any insolvency or bankruptcy statute seeking
the declaration of Customer as insolvent or bankrupt; (2) the filing of any
action seeking receivership or reorganization of Customer pursuant to or under
any insolvency or bankruptcy statute; or (3) the filing of any involuntary
petition against Customer pursuant to any insolvency or bankruptcy statute if
such petition shall remain unstayed or undismissed for a period of ten (10) days after filing.
(15)
Implement:
The term “Implement” and variants thereof (including, but not limited
to, the terms “implementation”, “implementing” and “implemented”) shall mean to
load.
(16)
Maintenance
Services: The term “Maintenance Services” shall mean
Defect resolution services concerning PHP Real Estate Classifieds Script (PHP REC) (excluding the System)
as provided by DB DESIGN (DANIEL BOORN) to Customer for the prevailing fees and
time and material rates published by DB DESIGN (DANIEL BOORN) and subject to DB
DESIGN (DANIEL BOORN) standard maintenance terms.
(17)
Price: The
term “Price” shall mean the total price to be paid by Customer to DB DESIGN
(DANIEL BOORN) for the System and for licensing PHP Real Estate Classifieds Script (PHP REC), as set forth
in the Price Schedule.
(18)
Restatements:
The term “Restatements” shall mean Section 757 of the Restatement of
Torts, Section 39 of the Restatement (Third) of Unfair Competition, Section 1
of the Uniform Trade Secrets Act, and Section 1839 of Title 18 of the United
States Code (18 U.S.C. § 1839).
(19)
Services:
The term “Services” shall mean Maintenance Services and that certain PHP Real Estate Classifieds Script (PHP REC) installation, training, telephone support, development and
consulting services as requested by Customer and approved by DB DESIGN (DANIEL
BOORN) in writing.
(20)
Term: The
term “Term” shall mean a period of time commencing on the Effective Date and
continuing until this Agreement is terminated or canceled under Article IV.
(21)
Third
Party Technology: The term “Third Party Technology” shall mean
third party software, computer, hardware, peripherals, components, devices,
equipment and technology used in connection with or related to PHP Real Estate Classifieds Script (PHP REC).
(22)
Unauthorized
Access: The term “Unauthorized Access” shall mean any
access to PHP Real Estate Classifieds Script (PHP REC) except for the exclusive purpose of [Primary
Software Purpose], and training employees of Customer in the use of PHP Real Estate Classifieds Script (PHP REC).
(23)
Unauthorized
User: The term “Unauthorized User” shall mean any
individual who accesses PHP Real Estate Classifieds Script (PHP REC) except for: (1) employees of Customer
authorized by Customer to access PHP Real Estate Classifieds Script (PHP REC) and who agrees to maintain
the confidentiality of Confidential Information for the exclusive purpose of
performing entering store locations and finding store locations, and training
employees of Customer in the use of PHP Real Estate Classifieds Script (PHP REC) and (2) Authorized
Persons authorized in writing by DB DESIGN (DANIEL BOORN) to access PHP Real Estate Classifieds Script (PHP REC).
(24)
Updates: The
term “Updates” shall mean the object code for updates, upgrades, new versions,
new releases or modifications to PHP Real Estate Classifieds Script (PHP REC) as generally made available
by DB DESIGN (DANIEL BOORN) from time to time to DB DESIGN (DANIEL BOORN)
customers for the applicable fee.
(25)
Warranty
Term: The term “Warranty Term” shall mean a period
of time commencing on the Delivery Date and ending on the date which is sixty
(60) days thereafter.
ARTICLE
II: PHP Real Estate Classifieds Script (PHP REC)
Section 2.01 -- Grant of License: DB DESIGN (DANIEL
BOORN) hereby grants to Customer a non-exclusive and non-transferable license
to use PHP Real Estate Classifieds Script (PHP REC) and to use the Documentation at the Facility for the
License Term, subject to the terms and provisions of this Agreement.
Section 2.02 -- Delivery: Customer hereby acknowledges
DB DESIGN (DANIEL BOORN) shall deliver PHP Real Estate Classifieds Script (PHP REC) on the Delivery Date.
Section 2.03 -- Implementation: Customer shall
install the PHP Real Estate Classifieds Script (PHP REC). Customer shall
implement PHP Real Estate Classifieds Script (PHP REC) on the System, subject
to the terms and conditions of this Agreement.
Section 2.04 -- Acceptance: PHP Real Estate Classifieds Script (PHP REC) shall be
deemed accepted by Customer ten (10) days after the Delivery Date unless Defect
Notice is received by DB DESIGN (DANIEL BOORN) by such tenth day. Upon receiving Defect Notice from Customer, DB
DESIGN (DANIEL BOORN) shall review the asserted Defect to determine if the
Defect is valid. If, in the reasonable
professional judgment of DB DESIGN (DANIEL BOORN) the asserted Defect is valid,
DB DESIGN (DANIEL BOORN) shall correct the Defect and resubmit PHP Real Estate Classifieds Script (PHP REC) for acceptance by Customer. If,
in the reasonable professional judgment of DB DESIGN (DANIEL BOORN) the
asserted Defect is not valid, DB DESIGN (DANIEL BOORN) shall submit to Customer
a written explanation of the reasons why such asserted Defect is not valid. The
written explanation of DB DESIGN (DANIEL BOORN) set forth herein shall be
deemed accepted by Customer within ten (10) days after receipt by Customer of
such written explanation unless DB DESIGN (DANIEL BOORN) receives from Customer
written notice rejecting such explanation and terminating this Agreement within
such ten (10) day period. Upon receipt
of Defect Notice from Customer by DB DESIGN (DANIEL BOORN) as set forth above, PHP Real Estate Classifieds Script (PHP REC) shall be deemed accepted by Customer except as to the asserted
Defects specified in the Defect Notice.
Section 2.05 -- Risk of Loss: Customer shall
assume risk of loss to PHP Real Estate Classifieds Script (PHP REC) as of the Delivery Date. Customer shall keep PHP Real Estate Classifieds Script (PHP REC)
protected and in good working order, maintained and insured against loss for
full replacement value until the date that the Price is paid in full by
Customer.
Section 2.06 -- Authorized Use: Customer shall
prevent Unauthorized Users from accessing PHP Real Estate Classifieds Script (PHP REC). Customer shall prevent Unauthorized Access to
PHP Real Estate Classifieds Script (PHP REC). Customer shall promptly inform DB DESIGN (DANIEL BOORN) of
any and all Unauthorized Access (or suspected Unauthorized Access) and
Unauthorized Users (or suspected Unauthorized Users) of which Customer has knowledge
or suspicion. Access to PHP Real Estate Classifieds Script (PHP REC) using third party products for purposes of manipulating, viewing,
disclosing or using the internal structure of PHP Real Estate Classifieds Script (PHP REC)™ or for
creating a database, data dictionary or data model shall be deemed Unauthorized
Access.
Section 2.07 -- Site Restriction: Customer shall use PHP Real Estate Classifieds Script (PHP REC) only on the System and only at the Facility.
Section 2.08 -- End Use: Customer hereby represents
and warrants that PHP Real Estate Classifieds Script (PHP REC) is being licensed by Customer for its own
use at the Facility and not for rental, leasing, resale, sublicensing,
distribution, outsourcing, or offering service bureau services.
Section 2.09 -- Services: Customer may request
Services, as approved by DB DESIGN (DANIEL BOORN). All Services shall be subject to the
discretion of DB DESIGN (DANIEL BOORN) and shall be subject to DB DESIGN
(DANIEL BOORN) standard service terms and applicable time and material rates.
ARTICLE
III: PAYMENT
Section 3.01 -- Price: Customer shall pay the
Deposit on the Effective Date. Customer
shall pay the difference between the Price and the Deposit on the Delivery
Date.
Section 3.02 -- Documentation Fee:
Additional copies of the Documentation may be purchased by Customer from
DB DESIGN (DANIEL BOORN) upon request by Customer and upon payment of the
Documentation Fee.
Section 3.03 -- Costs: Customer shall pay all
costs incurred by DB DESIGN (DANIEL BOORN) in performing this Agreement. Such
costs shall include (without limitation) postage, freight, telecommunications,
fees charged by third parties, telephone, travel, lodging, per diem, material
and reproduction costs.
Section 3.04 -- Taxes: Customer shall pay any
and all taxes attributable to this Agreement, to the transactions contemplated
hereunder or to the transactions performed by Customer or third parties using PHP Real Estate Classifieds Script (PHP REC), including, without limitation, any applicable sales or use
taxes. Notwithstanding the foregoing,
Customer shall not be responsible for paying any income taxes assessed against DB
DESIGN (DANIEL BOORN).
Section 3.05 -- Late Fee: Any amount which is not
paid when due shall be increased by a late charge equal to 1% of such unpaid
amount for each month (or portion thereof)
in which such amount is due and not paid.
Section 3.06 -- Invoicing and Payment:
Services shall be performed by DB DESIGN (DANIEL BOORN) at the time and
material rates of DB DESIGN (DANIEL BOORN) prevailing at the time such Services
are rendered. DB DESIGN (DANIEL BOORN)
shall invoice Customer for fees and costs in connection with the Services. Customer shall pay any such invoice in full
on the due date thereof or within thirty (30) days of receiving such invoice
(whichever is earlier).
ARTICLE
IV: TERMINATION
Section 4.01 -- Termination Limitations:
This Agreement shall only be terminated or canceled as provided under
this Article IV.
Section 4.02 -- Term: This Agreement shall be
valid for the Term.
Section 4.03 -- Termination: Customer may
terminate this Agreement for convenience upon providing ten (10) days written
notice of termination to DB DESIGN (DANIEL BOORN), subject to the terms and
provisions of this Agreement.
Section 4.04 -- Cancellation for Cause: If
Customer violates its obligations under this Agreement, DB DESIGN (DANIEL
BOORN) may cancel this Agreement by sending Cancellation Notice describing the
noncompliance to Customer. Upon
receiving Cancellation Notice, Customer shall have ten (10) days from the date
of such notice to cure any such noncompliance. If such noncompliance is not
cured within the required ten (10) day period, DB DESIGN (DANIEL BOORN) shall
have the right to cancel this Agreement as of the eleventh day after the date
of the Cancellation Notice.
Section 4.05 -- Return: Upon termination or
cancellation of this Agreement, Customer shall promptly remove (at Customer’s
expense) all customer information and data stored in PHP Real Estate Classifieds Script (PHP REC) and
return to DB DESIGN (DANIEL BOORN) the PHP Real Estate Classifieds Script (PHP REC), the Documentation and
all DB DESIGN (DANIEL BOORN) materials provided by DB DESIGN (DANIEL BOORN) to
Customer hereunder and shall provide DB DESIGN (DANIEL BOORN) with a
certificate of compliance with this Section 4.05 signed by an authorized
representative of Customer. Orders under
the Sales Agreement terminated or cancelled by Customer or changes made by
Customer within ten (10) days after the Effective Date or before implementation
of PHP Real Estate Classifieds Script (PHP REC) on the System has started (whichever is earlier) are
subject to DB DESIGN (DANIEL BOORN) and Manufacturer’s standard return and
refund policy in effect, including (without limitation) restocking fees and
other applicable fees. Upon termination
or cancellation of this Agreement ten (10) days after the Effective Date or
after implementation of the PHP Real Estate Classifieds Script (PHP REC), DB DESIGN (DANIEL BOORN) shall be entitled to retain all payments
rendered to DB DESIGN (DANIEL BOORN) under this Agreement, including (without
limitation) the Deposit, the Price, payment for the Services, and payments in
anticipation of Services.
ARTICLE
V: WARRANTY
Section
5.01 -- Warranty: DB DESIGN (DANIEL BOORN) represents and
warrants that PHP Real Estate Classifieds Script (PHP REC) shall perform substantially as represented in
the Documentation for the Warranty Term.
Customer’s exclusive remedy for breach of warranty shall be modification
or replacement of PHP Real Estate Classifieds Script (PHP REC), as determined by DB DESIGN (DANIEL BOORN).
Section 5.02 -- Third Party Warranties: DB
DESIGN (DANIEL BOORN) hereby assigns to Customer the benefit of any and all
Manufacturer warranties for the Third Party Technology and may cooperate (as
determined by DB DESIGN (DANIEL BOORN)) with Customer in securing the benefit
of any remedies available to Customer under any such Manufacturer warranty.
Section 5.03 -- Service Warranty: Any
Services provided by DB DESIGN (DANIEL BOORN) pursuant to this Agreement shall
be performed on a reasonable efforts basis in a timely and professional manner
and shall conform to the standards generally observed in the industry for similar
Services and shall be subject to Sections 5.01, 5.04, 5.05 and 5.08.
SECTION 5.04 -- DISCLAIMER:
THE WARRANTIES SET FORTH IN SECTIONS 5.01 AND 5.03 ARE IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, AND DB DESIGN (DANIEL BOORN) HEREBY
DISCLAIMS AND CUSTOMER HEREBY WAIVES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING (WITHOUT LIMITATION) ANY AND ALL IMPLIED WARRANTIES OF FITNESS FOR A
PARTICULAR PURPOSE AND IMPLIED WARRANTIES OF MERCHANTABILITY.
Section 5.05 -- Express Warranties:
Customer hereby acknowledges and agrees that DB DESIGN (DANIEL BOORN)
(including DB DESIGN (DANIEL BOORN) officers, employees, agents, directors,
independent contractors, affiliates, distributors and successors) has not made
or granted any express warranties concerning the System, the Services and PHP Real Estate Classifieds Script (PHP REC) except as expressly set forth in Sections 5.01 and 5.03 of this
Agreement.
Section 5.06 -- Third Party Claims: If
a final judgment from a court of competent jurisdiction is entered against
Customer upholding claims that PHP Real Estate Classifieds Script (PHP REC) violates a United States
patent, copyright, trade secret or other proprietary rights of a third party in
the United States, provided that Customer gives DB DESIGN (DANIEL BOORN) prompt
written notice upon Customer’s knowledge of any such claim, permits DB DESIGN
(DANIEL BOORN) to answer and defend (at DB DESIGN (DANIEL BOORN) option) such
claim or action and provides DB DESIGN (DANIEL BOORN) with information,
assistance and authority to assist DB DESIGN (DANIEL BOORN) in the defense of
such claim or action, DB DESIGN (DANIEL BOORN) shall perform one or more of the
following actions (as determined by DB DESIGN (DANIEL BOORN)) within one year
of the date final judgment in favor of such third party’s claim is rendered by
a court of competent jurisdiction:
(1) Replacement: Replace PHP Real Estate Classifieds Script (PHP REC) with a
non-infringing PHP Real Estate Classifieds Script (PHP REC) product of substantially equivalent functional
and performance capability;
(2) Modification: Modify PHP Real Estate Classifieds Script (PHP REC) to avoid the
infringement without substantially eliminating the functional and performance
capabilities of PHP Real Estate Classifieds Script (PHP REC);
(3) Obtain
Agreement: Obtain a license for use
of PHP Real Estate Classifieds Script (PHP REC) from the third party claiming infringement for use of PHP Real Estate Classifieds Script (PHP REC).
DB DESIGN (DANIEL BOORN) shall have the right to participate or
assume the defense (as determined by DB DESIGN (DANIEL BOORN)) and Customer
shall permit and authorize DB DESIGN (DANIEL BOORN) to participate in or assume
the defense of any such claim or action through legal counsel. The foregoing remedy does not apply and DB
DESIGN (DANIEL BOORN) shall have no obligation in connection with or relating
to any third party infringement claim in connection with or related to (i) Customer’s modification of PHP Real Estate Classifieds Script (PHP REC); (ii)
Customer’s failure to use PHP Real Estate Classifieds Script (PHP REC) in accordance with the
Documentation in effect; (iii) Customer’s failure to use the most current
release or version of PHP Real Estate Classifieds Script (PHP REC); (iv) Customer’s combination,
interface, operation or use of PHP Real Estate Classifieds Script (PHP REC) with Third Party Technology;
and (v) DB DESIGN (DANIEL BOORN) compliance with designs, instructions, or
specifications required by Customer. The
remedies set forth herein shall be the sole and exclusive remedies of Customer
under this Agreement for any and all claims of indemnification relating to
infringement. DB DESIGN (DANIEL BOORN)
obligations set forth in this Section 5.06 shall not apply to the Third Party
Technology.
Section 5.07 -- Remedies: The exclusive remedy of
Customer for any reason and for any cause of action whatsoever in connection
with or relating to this Agreement, the System, PHP Real Estate Classifieds Script (PHP REC) or any
transaction involving PHP Real Estate Classifieds Script (PHP REC), regardless of the form of action,
whether in contract or in tort, including negligence and breach of warranty,
shall be limited to repair or replacement of PHP Real Estate Classifieds Script (PHP REC) as determined by
DB DESIGN (DANIEL BOORN).
Section 5.08 -- Limitation of Damages: DB DESIGN (DANIEL BOORN) shall not be liable to Customer in
connection with or relating to this Agreement, the System, PHP Real Estate Classifieds Script (PHP REC)
and any transactions involving PHP Real Estate Classifieds Script (PHP REC) for any direct, indirect, lost
profits, consequential, exemplary, incidental or punitive damages, regardless
of the form of action, whether in contract or in tort, including breach of
warranty and negligence, regardless of whether DB DESIGN (DANIEL BOORN) has
been advised of the possibility of such damages in advance or whether such
damages are reasonably foreseeable.
Notwithstanding anything to the contrary, the liability of DB DESIGN
(DANIEL BOORN) for any reason and for any cause of action whatsoever in
connection with or relating to this Agreement, the System PHP Real Estate Classifieds Script (PHP REC) and
any transactions involving PHP Real Estate Classifieds Script (PHP REC) shall be limited to the license
fee for PHP Real Estate Classifieds Script (PHP REC).
Section 5.09 -- Force Majeure: DB
DESIGN (DANIEL BOORN) shall not be liable for any failure by DB DESIGN (DANIEL
BOORN) to perform its obligations under this Agreement because of circumstances
beyond the reasonable control of DB DESIGN (DANIEL BOORN), which such circumstances
shall include (without limitation) natural disaster, terrorism, riot, sabotage,
labor disputes, war, any acts or omissions of any government, governmental
authority or third party, declarations of governments, transportation delays,
power failure, computer failure, telecommunications failure, Third Party
Technology, failure of Customer to cooperate with the reasonable requests of DB
DESIGN (DANIEL BOORN), misuse of the System or PHP Real Estate Classifieds Script (PHP REC) by Customer or
third party, breach of this Agreement by Customer or a third party and any
other events reasonably beyond the control of DB DESIGN (DANIEL BOORN).
Section 5.10 -- Customer Indemnification:
Customer shall release, defend, indemnify and hold harmless DB DESIGN
(DANIEL BOORN) (including its officers, directors, employees, affiliates,
independent contractors, distributors, agents and successors) against any
expense, loss, cost or liability (including, without limitation, interest,
penalties, attorney fees and paralegal fees) arising from any and all claims,
demands, damages or actions resulting from or related to (1) use of PHP Real Estate Classifieds Script (PHP REC) by Customer, (including, without limitation, any claim regarding use of
PHP Real Estate Classifieds Script (PHP REC) by Customer in an
infringing manner or any claim by third parties for breach of warranty,
negligence, loss of data, libel, slander, unfair competition, trademark
infringement, or invasion of privacy); (2) performance of PHP Real Estate Classifieds Script (PHP REC);
(3) Customer’s negligence or the acts (or any failure to act) of Customer
hereunder; (4) any breach by Customer of the obligations of Customer hereunder;
and (5) investigation or defense of any of the above or in asserting DB DESIGN
(DANIEL BOORN) rights hereunder.
Section 5.11 -- Cooperation: Customer shall cooperate
with DB DESIGN (DANIEL BOORN) by providing DB DESIGN (DANIEL BOORN) with
information concerning PHP Real Estate Classifieds Script (PHP REC) and the System as may be requested by DB
DESIGN (DANIEL BOORN) from time to time and by providing DB DESIGN (DANIEL
BOORN) with unrestricted access to the personnel, facilities, computers,
computer PHP Real Estate Classifieds Script (PHP REC) and data of Customer.
Section 5.12 -- Maintenance: Customer hereby
acknowledges and agrees that Customer shall solely be responsible for acquiring,
installing, implementing, updating, upgrading, maintaining and replacing the
System and all Third Party Technology for any reason, including (without
limitation) for Updates or correction of Defects, including (without
limitation) all costs, fees, taxes and payments in connection therewith or
related thereto.
Section 5.13 -- Security Interest: DB
DESIGN (DANIEL BOORN) hereby reserves and Customer hereby grants to DB DESIGN
(DANIEL BOORN) a purchase money security interest in the System and PHP Real Estate Classifieds Script (PHP REC) to secure payment of the Price by Customer. In order to perfect such security interest,
Customer hereby appoints DB DESIGN (DANIEL BOORN) as the true and lawful
attorney-in-fact of Customer and Customer hereby authorizes DB DESIGN (DANIEL
BOORN) to (1) execute in the name of Customer all forms, documents and
financing statements deemed desirable by DB DESIGN (DANIEL BOORN), and (2) file
copies of the Sales Agreement, this Agreement and any forms and financing
statements with appropriate government agencies and offices as deemed necessary
by DB DESIGN (DANIEL BOORN) to perfect such purchase money security interest.
Section 5.14 -- Repossession: If Customer fails to
pay the balance of the Price when due (as provided in Section 3.01 of this
Agreement), DB DESIGN (DANIEL BOORN) shall have the right to enter the Facility
and to repossess the System and PHP Real Estate Classifieds Script (PHP REC) without further notice. If any Event of Bankruptcy occurs before
payment of the balance of the Price when due (as provided in Section 3.01 of
this Agreement), DB DESIGN (DANIEL BOORN) shall be entitled to any and all
remedies available to a secured creditor under the U.S. Bankruptcy Code and
applicable state or federal law.
ARTICLE
VI: INTELLECTUAL PROPERTY
Section 6.01 -- Ownership and Title:
Title to PHP Real Estate Classifieds Script (PHP REC), including all ownership rights to patents,
copyrights, trademarks and trade secrets therein or in connection therewith
shall be the exclusive property of DB DESIGN (DANIEL BOORN). Customer hereby assigns, transfers and
conveys to DB DESIGN (DANIEL BOORN) any and all rights, title and interests
Customer may have or accrue in PHP Real Estate Classifieds Script (PHP REC), including (without
limitation) any and all ownership rights to patents, copyrights, trademarks and
trade secrets therein or in connection therewith.
Section 6.02 -- Confidential Information: PHP Real Estate Classifieds Script (PHP REC) shall be deemed Confidential Information of DB DESIGN (DANIEL
BOORN). Customer shall maintain the
Confidential Information in strict confidence.
Customer shall not disclose Confidential Information except to
Authorized Persons. Customer shall not access, duplicate or use the Confidential
Information except as otherwise permitted under this Agreement.
Section 6.03 -- Trade Secrets: Customer hereby
acknowledges and agrees that the Confidential Information (i)
derives independent economic value (actual or potential) from not being
generally known to, or readily ascertainable by, other persons who can obtain
economic value from its disclosure or use; (ii) is the subject of reasonable
efforts by DB DESIGN (DANIEL BOORN) under the circumstances to maintain its
secrecy; and (iii) is a trade secret as defined under Chapter 688 of the
Florida Statutes [§688.002(4)] and the Restatements.
Section 6.04 -- Reverse Engineering:
Customer shall not reverse engineer PHP Real Estate Classifieds Script (PHP REC) and shall not
allow PHP Real Estate Classifieds Script (PHP REC) to be reverse engineered.
Section 6.05 -- Backup Copy: Customer may create one
copy of PHP Real Estate Classifieds Script (PHP REC) (excluding the printed Documentation) at the Facility
only for routine archival or backup purposes.
Section 6.06 -- Copies: Except as provided in
Section 6.05, Customer shall not copy PHP Real Estate Classifieds Script (PHP REC) and shall not allow PHP Real Estate Classifieds Script (PHP REC) to be copied without the prior written consent of DB DESIGN
(DANIEL BOORN).
Section 6.07 -- Modifications: Customer shall not
modify PHP Real Estate Classifieds Script (PHP REC) and shall not allow PHP Real Estate Classifieds Script (PHP REC) to be modified
without the prior written consent of DB DESIGN (DANIEL BOORN). Customer shall not use PHP Real Estate Classifieds Script (PHP REC) or
any materials incident thereto to develop computer PHP Real Estate Classifieds Script (PHP REC) without
the prior written consent of DB DESIGN (DANIEL BOORN). If PHP Real Estate Classifieds Script (PHP REC) is modified, such
modifications shall be the sole and exclusive property of DB DESIGN (DANIEL
BOORN) and DB DESIGN (DANIEL BOORN) shall own any and all rights, title and interests
to such modifications and any resulting computer PHP Real Estate Classifieds Script (PHP REC), including
(without limitation) any and all copyrights, patents and trade secrets therein
or in connection therewith.
Section 6.08 -- No Contest: Customer shall not
contest or aid in contesting the ownership or validity of the trademarks,
service marks, trade secrets, or copyrights of DB DESIGN (DANIEL BOORN).
Section 6.09 -- Employee Pirating:
Customer shall not induce or solicit (directly or indirectly) any
Associate to leave the employ or hire of DB DESIGN (DANIEL BOORN). Customer shall not engage (directly or
indirectly) the services of such Associate (as an employee, consultant,
independent contractor, or otherwise) without the advance written consent of DB
DESIGN (DANIEL BOORN).
Section 6.10 --
Section 6.11 -- Proprietary Notices:
Customer shall not remove, alter or obscure any copyright notices or
other proprietary legends displayed by or used by DB DESIGN (DANIEL BOORN) in
connection with or related to PHP Real Estate Classifieds Script (PHP REC).
Section 6.12 -- Trademarks: DB
DESIGN (DANIEL BOORN) trademarks, trade dress, logos, tradenames
or insignia (“DB DESIGN (DANIEL BOORN) Marks”), including (without limitation) PHP Real Estate Classifieds Script (PHP REC), are owned exclusively by DB DESIGN (DANIEL BOORN). DB
DESIGN (DANIEL BOORN) shall retain all rights, title and ownership interests in
DB DESIGN (DANIEL BOORN) Marks. Customer
shall not (directly or indirectly) use any trademark, tradename,
trade dress, insignia or logo that is similar to or a colorable imitation of
any DB DESIGN (DANIEL BOORN) Marks.
Section 6.13 -- Continuation: The terms and
conditions of this Article VI shall survive termination and cancellation of
this Agreement.
ARTICLE
VII: MISCELLANEOUS
Section 7.01 -- Assignments: All assignments of rights
under this Agreement by Customer without the prior written consent of DB DESIGN
(DANIEL BOORN) shall be void.
Section 7.02 -- Public Announcement:
All public announcements of the relationship of DB DESIGN (DANIEL BOORN)
and Customer under this Agreement shall be subject to the prior written
approval of DB DESIGN (DANIEL BOORN). DB DESIGN (DANIEL BOORN) shall have the
right to use the name of Customer as a reference for marketing purposes in
connection with PHP Real Estate Classifieds Script (PHP REC).
Section 7.03 -- Entire Agreement: This Agreement and
the Sales Agreement contain the entire understanding of the parties and
supersede previous verbal and written agreements between the parties concerning
the System and PHP Real Estate Classifieds Script (PHP REC). In the
event of a conflict between the terms of this Agreement and the terms of the
Sales Agreement, the terms of this Agreement shall prevail.
Section 7.04 -- Amendments and Modifications:
Alterations, modifications or amendments of a provision of this
Agreement shall not be binding unless such alteration, modification or
amendment is in writing and signed by DB DESIGN (DANIEL BOORN) and Customer.
Section 7.05 -- Severability: If a provision of
this Agreement is rendered invalid, the remaining provisions shall remain in
full force and effect.
Section 7.06 -- Captions: The headings and captions
of this Agreement are inserted for convenience of reference and do not define,
limit or describe the scope or intent of this Agreement or any particular
section, paragraph, or provision thereof.
Section 7.07 -- Counterparts: This Agreement may
be executed in multiple counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
Section 7.08 -- Governing Law: This Agreement
shall be governed by the laws of the State of [State of Governing Law] without
regard to any rules of conflict or choice of laws which require the application
of laws of another jurisdiction and venue shall be in [County, City and State
of Venue].
Section 7.09 -- Notice: Notices shall be in
writing and shall be deemed delivered when delivered by commercial overnight
delivery service, by courier, Certified or Registered Mail with Return Receipt
Requested or by hand to the address set forth below for DB DESIGN (DANIEL
BOORN) and to the address set forth on the Sales Agreement for Customer. Notice
shall be deemed given on the date of receipt - as evidenced in the case of
Certified or Registered Mail by Return Receipt.
DB DESIGN
(DANIEL BOORN): Address:
Section 7.10 -- Pronouns/Gender: Pronouns and nouns
shall refer to the masculine, feminine, neuter, singular or plural as the
context shall require.
Section 7.11 -- Bankruptcy: If DB DESIGN (DANIEL
BOORN) must institute, defend, appear or attend a bankruptcy proceeding as a
result of the filing of bankruptcy by Customer, fees and expenses shall be paid
by Customer. If Customer has a
bankruptcy proceeding filed against it, DB DESIGN (DANIEL BOORN) shall recover
attorney fees, expert witness fees, and other costs incurred by DB DESIGN
(DANIEL BOORN) in connection with the bankruptcy proceeding, hearing or trial.
Section 7.12 -- Waiver: Any waiver of a provision
of this Agreement by DB DESIGN (DANIEL BOORN) shall not be binding unless such
waiver is in writing and signed by DB DESIGN (DANIEL BOORN). Waiver by DB DESIGN (DANIEL BOORN) of any
breach of this Agreement shall not constitute waiver of any other breach. Any failure by DB DESIGN (DANIEL BOORN) to
enforce a provision of this Agreement shall not constitute a waiver or create
an estoppel from enforcing such provision.
Section 7.13 -- Relationship of the Parties: It
is agreed that the relationship of DB DESIGN (DANIEL BOORN) and Customer is
primarily that of licensor and licensee or seller and customer
respectively. Nothing herein shall be
construed as creating a partnership, an employment relationship, or an agency
relationship between the parties, or as authorizing either party to act as
agent for the other. Each party shall
maintain its separate identity.
Section 7.14 --
Arbitration: Any controversy or claim arising out of or
relating to this Agreement, or breach thereof, shall be settled by arbitration
in accordance with the Arbitration Rules of MyTechnologyLawyer.com in
Section 7.15 -- Assurances: Each party hereby
represents and warrants that all representations, warranties, recitals,
statements and information provided to the other under this Agreement are true,
correct and accurate as of the Effective Date to the best of their knowledge.
Section 7.16 -- Litigation Expense: In
the event of litigation or arbitration arising out of this Agreement, each
party shall pay its own costs and expenses of litigation or arbitration
(excluding fees and expenses of arbitrators and administrative fees and
expenses of arbitration).
Section 7.17 -- Equitable Remedies: The parties hereby acknowledge that damages
at law may be an inadequate remedy to DB DESIGN (DANIEL BOORN). DB DESIGN (DANIEL BOORN) shall have the right
of specific performance, injunction or other equitable remedy in the event of a
breach or threatened breach of this Agreement by Customer.