This TERMS AND CONDITIONS (“Agreement”) is incorporated into and made and entered into as of the date set forth in the applicable executed Order Form (the “Effective Date”), by and between MaxilloSoft LLC, a Delaware limited liability company, located at 12 Brook Farm Court, Cockeysville Maryland 21030 (“MaxilloSoft”) and the Customer identified in the respective Order Form (“Customer”). This Agreement includes and incorporates any other written order form mutually executed by the parties which references this Agreement (each an “Order Form”). In consideration of the mutual covenants contained herein, Customer and MaxilloSoft agree as follows:
I. Grant of License. During the term hereof, MaxilloSoft grants Customer a non-exclusive, limited license to: (i) use the software (“Software”) and equipment, if any, selected by Customer pursuant to the applicable Order Form solely for its internal business purposes at the sites set forth in the Order Form. Any rights not expressly granted by MaxilloSoft to Customer are reserved by MaxilloSoft, and all implied licenses are disclaimed. Without limiting the foregoing, Customer shall not (x) modify, reverse engineer, decompile, create derivative works; (y) sublicense, lease, rent, assign, and/or distribute, and/or (z) duplicate, sell or reproduce the MaxilloSoft Technology (as defined in Section III) or any portion thereof.
II. MaxilloSoft Services. MaxilloSoft has agreed to provide Customer with the applicable services selected by Customer pursuant to the Order Form (“MaxilloSoft Services”) for performance in connection with the MaxilloSoft’s Technology.
III. Ownership of Technology. MaxilloSoft acknowledges that Customer owns all right, title and interest in, or if applicable, licenses to, the Customer data and content it uses in connection with the MaxilloSoft Technology and Customer marks (“Customer Technology,” in context “Technology”). Customer acknowledges that MaxilloSoft owns all right, title and interest in, or if applicable, licenses to, the Software, Maxillosoft Services, and any materials or content developed by Provider while performing under this Agreement (“Maxillosoft Technology,” in context “Technology”). At all times during the term hereof, Customer shall ensure that the Customer Technology and the other technology, telecommunications, software and hardware that it uses in connection with the MaxilloSoft Technology satisfies the system requirements located on MaxilloSoft’s internet website, which requirements may be amended from time to time by MaxilloSoft in its sole discretion with or without notice to Customer.
IV. Term. This Agreement shall commence on the Effective Date and shall continue until the date specified in the Order Form (“Term”). Those provisions that by their nature survive shall survive termination of this Agreement. All other rights and obligations of the parties shall cease upon termination including, but not limited to, all licenses granted hereunder.
V. Fees. Customer shall pay MaxilloSoft the fees on the payment dates set forth on the applicable Order Form. Any failure by the Customer to pay MaxilloSoft according to the terms of this Agreement shall entitle MaxilloSoft, without prejudice to its other rights and remedies under this Agreement, to: (i) charge interest on a daily basis from the original due date at the rate of 1.5% per month; (ii) suspend the provision of MaxilloSoft Services; and (iii) reimbursement for all reasonable costs incurred by MaxilloSoft in collecting past due amounts. All of the foregoing payments exclude applicable sales, value-added, use or other taxes and obligations, all of which Customer shall pay in full, except for taxes based on MaxilloSoft’s net income.
VI. Confidentiality. At all times during the Term and thereafter, each party shall keep confidential and not disclose, directly or indirectly, and shall not use for the benefit of itself or any other individual or entity any Confidential Information of the other party. “Confidential Information” means any trade secrets or confidential or proprietary information whether written, digital, oral or other form which is unique, confidential or proprietary to the disclosing party, including, but not limited to, the terms and conditions of this Agreement, each party’s Technology, and any other materials or information related to the business or activities of the disclosing party which are not generally known to others engaged in similar businesses or activities. Each party shall return to the disclosing party any of the disclosing party’s Confidential Information upon written request and/or upon termination of this Agreement. Neither party shall issue a press release regarding this relationship without the other party’s prior written approval.
VII. Limited Warranty. MaxilloSoft shall provide Customer with the warranty set forth in the applicable Order Form. MAXILLOSOFT SPECIFICALLY DISCLAIMS WHETHER EXPRESS, IMPLIED, STATUTORY, OR ARISING FROM TRADE USAGE OR COURSE OF CONDUCT, ANY AND ALL WARRANTIES INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE RELATING TO THE MAXILLOSOFT TECHNOLOGY, MAXILLOSOFT SERVICES OR ITS PERFORMANCE HEREUNDER.
VIII. Default. This Agreement shall be terminated at the option of the non-defaulting party, by written notice thereof to the defaulting party, specifying in reasonable detail the reason for termination, if (i) the defaulting party breaches or otherwise fails to perform or comply in a material respect with a material obligation or covenant, and such breach or failure is not cured to the non-defaulting party’s reasonable satisfaction within ten (10) days of receipt of such notice; or (ii) the defaulting party fails to comply strictly with the provisions of Sections I, II, III or VI.
IX. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF THIS AGREEMENT, THE USE OF ITS TECHNOLOGY OR PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, EVEN IF THE AFFECTED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Except for damages arising from a party’s breach of a confidentiality obligation owed to the other set forth herein, each party agrees that the other party’s maximum liability arising out of contract, negligence, strict liability in tort or otherwise, shall not exceed the amount of fees paid or otherwise payable to MaxilloSoft by Customer hereunder.
(a) This Agreement and the respective Order Form constitute the entire understanding and agreement of the parties, and supersede all prior and contemporaneous understandings and agreements, whether written or oral, with respect to its subject matter.
(b) No delay or failure by either party to exercise or enforce at any time any right or provision hereof will be considered a waiver thereof. No single waiver will constitute a continuing or subsequent waiver. No waiver, modification or amendment of any provision hereof will be effective against MaxilloSoft unless it is in a signed writing by the parties. Customer’s continued use of the MaxilloSoft Technology and MaxilloSoft Services following an amendment to this Agreement that has been posted on the MaxilloSoft website shall indicated Customer’s acceptance of such amendment.
(c) Customer party may assign its rights or obligations hereunder (including as a change of control) without the prior written consent of MaxilloSoft. Subject to the foregoing, this Agreement will bind and inure to the benefit of the successors and permitted assigns of the parties.
(d) This Agreement shall be governed and construed in all respects by the laws of the State of Maryland, without regard to principles of conflict of laws and without application of the Uniform Computer Information Transaction Act. The parties agree that the exclusive jurisdiction and venue of any dispute amongst the parties shall be entered in the state or federal courts within the State of Maryland and each of the parties hereby waives any right to a trial by jury. The prevailing party in any action to enforce this Agreement shall be entitled to recover reasonable costs and expenses including, without limitation, reasonable attorneys’ fees.
(e) If any provision of this Agreement or the application thereof to any party or circumstance is held to be invalid, illegal, or unenforceable in any respect, that provision to the extent permitted by law (not otherwise) shall be severed from this Agreement and shall not affect the remainder hereof, and the parties agree to substitute for such provision a valid provision which most closely approximates the intent and economic effect of such severed provision.
(f) The parties to this Agreement are independent contractors. Neither party shall be liable to the other for a failure to perform any of its obligations under this Agreement, except for payment obligations, during any period in which such performance is delayed due to circumstances beyond its reasonable control.
(g) All notices hereunder must be in writing and mailed by certified mail, return receipt requested, or by prepaid courier service, or by telecopier with receipt confirmed by telephone, to each party’s address set forth in the respective Order Form.
SPECIFIC STANDARDS – ADDITIONAL STANDARD PROVISIONS FOR SUPPLYING BY SALE OR RENTAL THIRD PARTY HARDWARE OR THIRD PARTY PRODUCED SOFTWARE,AND PROVISIONS FOR CONTRACTING WITH TELECOMMUNICATIONS VENDORS OR THIRD PARTY SERVICE VENDORS.
In those cases where MaxilloSoft has agreed to provide Customer with hardware, software, or services produced by a third party or has contracted for telecommunications, the following additional provisions shall apply:
1. Customer will be responsible for payment of all shipping, taxes, installation fees and any other applicable charges from the vendor.
2. Customer will be responsible for payment of any MaxilloSoft service fees related to the hardware purchases. Service fee will be 5% of the total vendor invoice price.
3. Customer will be responsible for payment of any MaxilloSoft service fees related to third party service vendor purchases. Service fee will be $25/ hour of the total vendor time (hours) billed.
4. Customer will be responsible for payment of any increases in contracted service fees from the vendor.
5. MaxilloSoft will use commercially reasonable efforts to obtain the best price available for Customer in connection with such purchases.
6. Customer will take such equipment and services subject to the applicable vendor’s warranty.
7. Risk of Loss and Title shall transfer, if applicable, to Customer pursuant to the applicable third party’s terms and conditions.