ACCESS SERVICES AGREEMENT (CONT.)

RESTRICTIONS; TITLE; RESPONSIBILITY. (SECTION 1 CONT.)

1.3 Restrictions.  Participant acknowledges that use of the Company Platform is provided for Participant’s and Participant’s Authorized Users’ benefit only.  Participant agrees not to, not to attempt to, nor allow any Authorized User or third party to: (i) alter, modify, change, copy, distribute, rent, lease, lend, sublicense, or transfer the Company Platform, or make the Company Platform available to any third party (other than an Authorized User); (ii) decompile, reverse engineer, or disassemble the Company Platform or otherwise attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats, or programming interfaces of the Company Platform; (iii) create derivative works based on the Company Platform; (iv) modify, remove, or obscure any copyright, trademark, patent, or other notices or legends that appear on the Company Platform or during the use and operation thereof; (v) publicly disseminate performance information or analysis (including benchmarks) relating to the Company Platform; (vi) utilize any software or technology designed to circumvent any license keys or copy protection used in connection with the Company Platform; (vii) use the Company Platform to develop a competitive product offering; (viii) use the Company Platform in a manner that violates or infringes any laws, rules, regulations, third party intellectual property rights, or third party privacy rights; (ix) combine the Company Platform or any part thereof with, or incorporate the same or any part thereof, in other programs; or (x) access or attempt to access the Company Platform as an administrator. Participant may not use any automated means, including agents, robots, scripts, or spiders, to access or manage the Company Platform, except solely to the extent as may be specifically enabled and authorized by the Company.

1.4 Title and Protection.  

1. The Parties hereby acknowledge and agree that Company shall retain full ownership of and title to all portions of the Company Platform during and after the Term hereof. In the event Participant makes any modification or alteration to the Company Platform in violation of this Agreement; (i) Participant shall promptly provide a copy, and shall assign all rights in such modifications or alterations to Company and execute the applicable instruments and documents to effect said transfer; and (ii) Company shall retain full ownership of and title to such modifications or alterations and the modified Company Platform.  
2. Participant acknowledges and agrees that the Company Platform is provided under license, and not sold, to Participant. Participant does not acquire any ownership interest in the Company Platform under this Agreement, or any other rights thereto other than to use the same in accordance with the License granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company (including, without limitation, its licensors, affiliates, and service providers, as applicable) reserves and shall retain its entire right, title, and interest in and to the Company Platform and all intellectual property and ownership rights arising out of or relating to the same, except as expressly granted to the Participant in this Agreement. Participant shall use commercially reasonable efforts to safeguard the Company Platform (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access by third parties. Participant shall promptly notify Company if Participant becomes aware of any infringement of the Company’s intellectual property and ownership rights in the Company Platform and fully cooperate with Company in any legal action taken by Company to enforce its intellectual property and ownership rights under the Company Platform. 
3. Any derivatives, new version, modifications, discoveries, inventions, improvements, concepts, ideas, and data processing techniques developed by Company in connection with this Agreement, other than the Technical Services (as defined and subject to the terms and conditions below) shall remain the exclusive property of Company and not be deemed a part of the Company Platform for purposes of the License and this Agreement.
4. Participant authorizes Company to enter Participant’s premises, systems, and data bases with five (5) days’ prior written or electronic notice and during regular business hours to inspect and copy pertinent books, records, computers, systems, and data bases to verify Participant’s compliance with its obligations under this Section 1.
5. Participant acknowledges that any breach of its obligations under this Section 1 may cause Company irreparable harm, and that Company may not have an adequate remedy in monetary damages. Accordingly and notwithstanding nor limiting any other provision of this Agreement, upon a breach of any of Participant’s obligations under this Section 1 Company shall be entitled to preliminary and permanent injunctive relief, in addition to Company’s other remedies at law or in equity as provided herein, without posting an injunction bond as may be required under applicable law.

1.5 Responsibility for Use of Company Platform. Participant is responsible and liable for all uses by its Authorized Users of the Company Platform through access thereto provided by Company, directly and indirectly. Specifically, and without limiting the generality of the foregoing, Participant is responsible and liable for all actions and failures to take required actions with respect to the Company Platform by its Authorized Users, agents, contractors, and other individuals or persons who, whether intentionally or through negligence, is permitted access to or use of the Company Platform. Notwithstanding the aforementioned and without limiting the terms of this Section 1.5, Participant shall perform the terms and conditions of the Terms of Service published on the Company Platform from time to time, as amended in accordance with their terms, which are incorporated into this Agreement. Should there be a conflict between the interpretation or controlling terms or conditions of this Agreement and the Terms of Service, this Agreement shall control the Parties’ rights and duties thereby.

2. TECHNICAL SERVICES; INDEPENDENT CONTRACTOR

2.1 Technical Services and Maintenance.  

1. Subject to Section 2.1.b. below, the License granted hereunder and payment of the Access Fees entitles Participant to the basic software maintenance services that include provision of such updates, upgrades, bug fixes, patches, and other error corrections (collectively, the “Technical Services”) as Company makes generally available free of charge to all licensees of the Company Platform then entitled to basic software maintenance and support services.  

1. Company may develop and provide Technical Services in its sole discretion, and Participant agrees that Company has no obligation to develop any particular updates or new versions of the Company Platform at all or for particular issues. Participant further agrees that all Technical Services will be deemed a part of the Company Platform, and the same will be the property of Company, subject to the terms and conditions of this Agreement. Technical Services do not include any new version or new release of the Company Platform that Company may issue as a separate or new product, and Company may determine whether any issuance qualifies as a new version, new release, or update of the Company Platform in its sole discretion.

2.2 Nature of Relationship. Both Company and Participant agree that the relationship created by this Agreement is that of an independent contractor and not that of an employee and employer, and nothing contained herein shall be construed as the creation of a partnership or joint venture between the Parties. The Parties are each individually responsible for payment of any taxes, including, without limitation, all federal, state, and local personal and business income taxes, sales and use taxes, other business taxes, and license fees arising out of the Parties’ performance of the terms and conditions of this Agreement.

3. WARRANTIES; INDEMNIFICATION; REPRESENTATIONS

3.1 Limited Warranty. THE COMPANY PLATFORM AND ALL TECHNICAL SERVICES AND ANY DELIVERABLES, RESULTS, OR PRODUCTS RESULTING FROM THE COMPANY PLATFORM OR PERFORMANCE OF THE  TECHNICAL SERVICES PROVIDED HEREUNDER ARE PROVIDED BY THE COMPANY “AS IS” AND “WITH ALL FAULTS.” COMPANY HEREBY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMAN-LIKE SERVICE, NON-INFRINGEMENT, AND ANY LEVEL OR QUALITY OF RESULTS REALIZED BY PARTICIPANT’S OR ANY AUTHORIZED USERS’ USE OF THE COMPANY PLATFORM. COMPANY PROVIDES NO EXPRESS OR IMPLIED WARRANTIES, WHETHER ORAL OR WRITTEN, AT LAW OR EQUITY. SHOULD THE COMPANY PLATFORM, SERVICES, DELIVERABLES, RESULTS, OR PRODUCTS PROVE UNAVAILABLE, DEFECTIVE, OR DISSATISFACTORY, PARTICIPANT SOLELY ASSUMES THE COST (IF ANY) OF ALL NECESSARY REPAIR OR REMEDY OF THE SAME AND HEREBY WAIVES ALL WARRANTY CLAIMS IT MAY OTHERWISE HAVE AGAINST COMPANY.

3.2 Limitation of Liability. COMPANY DISCLAIMS ANY AND ALL LIABILITY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING LOSS OF USE AND PROFITS) ARISING OUT OF THIS AGREEMENT, OR WITH RESPECT TO THE COMPANY PLATFORM OR ANY SCOPING, PLANNING, PERFORMING, NEGOTIATING, PROVIDING SUPPORT, USE, OPERATION, OR SERVICES OR PRODUCTS, AND ANY RESULTS RESULTING FROM THE COMPANY PLATFORM OR PERFORMANCE OR LACK OF PERFORMANCE OF SERVICES OR THE PARTIES’ ENTERING INTO THIS AGREEMENT, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE, TORT, OR OTHERWISE, EVEN IF THE BREACHING PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY’S LIABILITY TO PARTICIPANT OR ANY THIRD PARTY FOR MONETARY DAMAGES HEREUNDER EXCEED THE ACCESS FEE AMOUNTS, IF ANY, PAID TO AND ACTUALLY RECEIVED BY COMPANY HEREUNDER WITHIN THE PREVIOUS SIX (6) MONTHS AND RELATED TO COMPANY’S PROVISION OF THE LICENSE UNDER THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

3.3 Participant Indemnification. Participant shall defend, indemnify, and hold Company harmless from and against any claim, loss, costs, suits, allegations, fines, or damages incurred, including, without limitation, attorneys’ fees, arising out of or resulting from: (i) any action by a third party based upon any act or omission, including, without limitation, negligent, reckless, or intentionally wrongful conduct of Participant or its Authorized Users or any other users who access the Company Platform through Participant or its Authorized Users; (ii) any failure of Participant or Authorized Users or any other users who access the Company Platform through Participant or its Authorized Users to comply with all applicable laws, rules, and regulations in connection with this Agreement; (iii) any allegation of infringement, misappropriation, or other violation of the Company’s or a third party’s intellectual property rights; or (iv) any breach by Participant or Authorized Users or any other users who access the Company Platform through Participant or its Authorized Users of any of the terms, covenants, representations, or warranties contained in this Agreement.

3.4 Representations and Warranties. Each Party hereto represents that (a) such Party has the full corporate or individual contractual capacity, right, power, and authority to enter this Agreement and to perform the acts required of such Party hereunder, (b) the execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder does not, and will not, violate any agreement to which such Party is bound, and (c) when executed and delivered by such Party, this Agreement constitutes the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms. Participant represents and warrants to Company that it will not use the Company Platform or any data or information derived or generated from use of the Company Platform in a manner or in connection with any activity that would violate any law, rule, or regulation, including those relating to privacy or data protection.

3.5 Right to Disclose Information. Company may require Participant to disclose certain information, including, but not limited to, full name, email address, and phone number (“collectively, “Personal Information”), of Authorized Users in order for Participant and Authorized Users to take full advantage of the Company Platform. Participant hereby represents and warrants that it has obtained all necessary permissions from the Authorized User and that Participant is allowed to disclose such Personal Information to the Company.

4. TERM AND TERMINATION; SURVIVAL

4.1 Term. This Agreement will commence on the Effective Date and will continue in effect until the termination as provided below (“Term”). 

4.2 Termination Notice. Company may terminate this Agreement, for any or no reason, upon delivery of thirty (30) days’ prior written notice to Participant of such intent to terminate this Agreement.  Company may terminate this Agreement immediately for Participant’s failure to perform the terms of Schedule 1.2 or Participant’s or Authorized Users’ or other users’ who access the Company Platform through Participant or its Authorized Users breach of the terms, conditions, representations, warranties, or covenants of this Agreement. Participant may terminate this Agreement, for any or no reason, upon delivery of thirty (30) days’ prior written notice to Company of such intent to terminate this Agreement. Any such notice of termination shall be addressed to the Party at the address shown and in accordance with the provisions of Section 8.1 below.

4.3 Termination. Upon termination of this Agreement for any or no reason Participant shall immediately discontinue use of and shall return to the Company within fourteen (14) days all Confidential Information (as defined below) and materials of the Company and all copies, portions, and abstracts thereof, that are in its possession or under its control. Participant and Authorized Users shall also immediately discontinue use of the Company Platform and, promptly upon Company’s request for the same, deliver or destroy any information or documentation related to the Company Platform. Further, all Access Fees that are or will be due as of the effective date of such termination shall be paid by Participant to Company on or before the effective date of such termination.

4.4 Survival. Upon termination or expiration of the Term, all rights and duties of the Parties toward each other will cease except Sections 1.2, 1.3, 1.4, 1.5, 2.2, 3, 4.3, 4.4, 5, 6, 7, and 8, which shall survive the termination of this Agreement.

5. CONFIDENTIAL INFORMATION

5.1 Definition. “Confidential Information” means any intellectual property created or disclosed by the Parties’ performance of this Agreement, including, without limitation, the Company Platform, software, documentation, source code, other work product, and all modifications of the foregoing, and all portions thereof, including, without limitation, copyrights, patent, and trade secret rights, and any other proprietary information, technical data, trade secrets, or know-how of the Company, including, but not limited to, research, business plans or models, product plans, products, services, computer software and code, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, customer lists and customers, markets, finances, or other business information disclosed by Company either directly or indirectly in writing, orally, or by drawings or inspection of facilities, parts, or equipment. Confidential Information does not include information that (a) is known to Participant at the time of disclosure by Company as evidenced by written or electronic records, (b) has become publicly known and made generally available through no negligent or intentional act of the Participant, or (c) has been rightfully received by Participant from a third party who is authorized to make such disclosure.

5.2 Non-Disclosure. Participant agrees that it shall not and shall cause its Authorized Users and any other users who access the Company Platform through Participant or its Authorized Users to not, during or subsequent to the Term of this Agreement, and other than as expressly set forth in Section 7 below: (i) disclose the Confidential Information for any purpose whatsoever other than the performance of the terms and conditions of this Agreement, or (ii) disclose the Confidential Information to any third party, except as otherwise directed in writing by the Company. Participant shall use the same degree of care and shall cause its Authorized Users and any other users who access the Company Platform through Participant or its Authorized Users to use the same degree of care, but no less than a reasonable degree of care, as Participant uses with respect to its own information of a similar nature to protect the Confidential Information and to prevent any use of Confidential Information in violation of this Agreement, and/or communication of Confidential Information to any unauthorized third parties. 

6. RESTRICTIVE COVENANTS

6.1 Anti-Solicitation: Employees. Participant shall not, during the Term of this Agreement and for twelve (12) months following the termination of this Agreement, for any or no reason, directly, indirectly, or by action in concert with others induce or influence or seek to induce any person, company, or other third party entity that has been engaged by Company as an executive, employee, manager, salesman, independent contractor, broker, agent, subcontractor, sales representative, or otherwise during the twelve (12) month period preceding the termination of this Agreement, to terminate, circumvent, or materially alter his, her, or its relationship with Company.

6.2 Non-Solicitation of Customers. Participant shall not, during the Term of this Agreement and for twelve (12) months following the termination of this Agreement, for any or no reason, either as an officer, manager, stockholder, member, director, employee, representative, partner, sole proprietor, broker, agent, or independent contract, solicit, accept, or otherwise perform business directly from any of the Company’s customers or clients or using the Company Platform in circumvention of the terms and conditions of this Agreement.

6.3 Modification and Severability of Section 6. If any provision of this Section 6 is held to be invalid or unenforceable by a court of competent jurisdiction, the remaining provisions hereof shall nevertheless continue to be valid and enforceable as though the invalid or unenforceable parts had not been included herein. Notwithstanding any terms or conditions of this Agreement, each clause, provision, restrictive or affirmative covenant, and condition of this Section 6 of this Agreement above is hereby distinct, separate, and severable from the remainder of this Agreement and from each of the same. If any clause, provision, restrictive or affirmative covenant, or condition of this Section 6 of this Agreement, or the application thereof to any person, place, or circumstance, is held to be invalid, unenforceable, or void, the remainder of the clauses, provisions, restrictive or affirmative covenants, and conditions of this Section 6 shall remain in full force and effect in accordance with their terms; and the same shall be and are hereby severable and shall be thereafter enforced in accordance with the terms herein above.

6.4 Survival. Without limiting any other term or condition of this Agreement, the restrictive covenants, terms, and conditions contained in this Section 6 shall survive the termination of this Agreement. Any action by Company seeking to enforce the terms and conditions of this Section 6 shall automatically toll the foregoing survival time period until the dispute or enforcement action has been resolved to the sole satisfaction in good faith of Company.

7. MARKETING AND PROMOTIONS

Any written or electronically stored promotional materials that include any reference to Company shall be subject to Company’s prior written approval. Participant may use the name “Sqwire” or the applicable Company Platform tradename(s) only when communicating the available Company Platform to prospective Authorized Users, and shall not use such name or any other trademarks, service marks, or trade names of Company for any other purpose. Participant shall not question, contest, or challenge, either during or after the Term of this Agreement, any of Company’s trademarks, service marks, or trade names (collectively, the “Trademarks”). Participant shall claim no right, title, or interest in the Trademarks, except to use the same pursuant to and limited by the terms and conditions of this Agreement and the License and shall not seek to register the same. Participant expressly recognizes and acknowledges that the use of any of the Trademarks shall not confer upon Participant any proprietary rights to such Trademarks. Upon termination of this Agreement, the License shall automatically terminate and cease to exist, Participant shall immediately cease using the Trademarks, and shall execute all necessary or appropriate documents to confirm Company’s ownership in any of such Trademarks. Nothing in this Agreement shall be construed to bar Company after expiration or termination of this Agreement from protecting its right to the exclusive use of the Trademarks against infringement by any party or parties, including, without limitation, Participant. The Parties hereby acknowledge and agree Company is not responsible for marketing the Company Platform to any Authorized Users, and the promotion of the same is solely the responsibility of Participant in accordance with this Section 7.

8. MISCELLANEOUS (CONT.)

8.2 Amendments; Waiver and Consent. This Agreement shall not be amended except in a writing signed by an authorized individual of each of the Parties hereto. No waiver or consent shall be binding upon either Party except in a writing signed by the Party making the waiver or giving the consent. No waiver of any provision or consent of any action shall constitute a waiver of any other provision or consent of any other action, whether similar. No waiver or consent shall constitute a continuing waiver or consent except to the extent specifically set forth in writing executed by the Party making the continuing waiver or giving the continuing consent.

8.3 Entire Agreement. This Agreement is the entire agreement of the Parties and supersedes any prior agreements between them, whether written or oral, with respect to the subject matter hereof. In the event of any conflict between the terms of this Agreement and any Schedule hereto, the terms of this Agreement shall control and govern.

8.4 Venue; Jurisdiction. Company and Participant agree that any dispute or controversy arising out of, relating to, or in connection with the interpretation, validity, construction, performance, breach, or termination of this Agreement shall be filed, initiated, and resolved exclusively in state or federal courts located in the City of Norfolk, Virginia, United States of America; each Party hereby consents to both the exclusive jurisdiction and venue of the state and federal courts located in the City of Norfolk, Virginia.

8.5 Governing Law. This Agreement shall be construed in accordance with the laws of the Commonwealth of Virginia without regard to its rules regarding conflicts of law.

8.6 Severability. If a court of competent jurisdiction holds any provision of this Agreement or its application to any person, place, or circumstance to be invalid, unenforceable, or void, such provision shall be enforced to the greatest extent permitted by law, and the remainder of this Agreement and such provision as applied to other persons, places, and circumstances shall remain in full force and effect.

8.7 Further Assurances. This Agreement serves to replace all prior agreements, both oral and written, and now hereby constitutes the entire agreement and understanding of and between the Parties.  The Parties are not bound by any oral or written expression or representation by either, or by any agent of either Party purporting to act for or on behalf of another, or by a commitment or arrangement not otherwise specified in this Agreement.  Each Party, at the request of the other Party, shall execute and deliver such additional or confirmatory instruments, documents, and acknowledgements and shall take or refrain from taking all other such actions and execute such other documents as such requesting Party may reasonably require to effect the transactions contemplated hereunder.

8.8 No Third-Party Beneficiaries. Nothing contained herein is intended, nor shall it be construed, to confer any rights or benefits upon any person (including, but not limited to, any Authorized User, potential Authorized User, employee, agent, contractor, officer, shareholder, member, manager, or former agent of the Parties) other than the Parties, and no such person shall have any rights or remedies under this Agreement.

8.9 Force Majeure. The Parties shall not be liable or responsible, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of the Parties, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions or omissions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riots, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes, or other labor disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers, or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of one hundred twenty (120) days, each Party shall be entitled to give notice in writing to the other Party to terminate this Agreement.  

8.10 Costs and Attorneys’ Fees. In any legal action or other negotiation or proceeding brought to enforce the terms of this Agreement, the prevailing Party shall be entitled to recover its attorneys’ fees, fees, and costs. The non-prevailing Party in any legal action brought pursuant to, or arising out of, this Agreement shall pay to prevailing Party all costs and fees incurred by such Party in such action, including, without limitation, all attorneys’ fees and out-of-pocket expenses and all other reasonable costs of enforcement of the terms and conditions hereof. As used herein, the “prevailing Party” means the Party in whose favor a final judgment, order, or decree is rendered or entered.

8.11 Counterparts; Headings. This Agreement may be executed simultaneously and in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one (1) and the same instrument.  The headings provided for herein are for convenience and reference only and shall not be deemed a substantive part of this Agreement.

8.12 Recitals; Construction.  The recitals contained in this Agreement above are incorporated into and made an integral and substantive part of this Agreement.  This Agreement has been negotiated by the Parties and their respective counsel.  This Agreement will be strictly interpreted in accordance with its terms and conditions and without any strict construction against either Party as the drafting party or scrivener.  Any ambiguity herein will not be interpreted against the drafting Party.