The following terms are applicable to the use of the SOFTWARE (as defined below) and constitute a License Agreement (“Agreement") by and between the Neighborhood Reinvestment Corporation, dba NeighborWorks America ("Licensor"), and the user to whom Licensor shall have provided a Software user identification and password ("Licensee").
1. Definitions and Interpretations
“Access” means Licensee has capability of using the software via login and password.
"Agreement" means this Agreement and includes all Exhibits attached to it or incorporated in it by reference.
"Documentation" means user manuals including those in electronic form (on any media), handbooks, maintenance libraries, education materials and other publications containing specifications to be supplied in order to assist the use, operation or support of the Software.
"Effective Date" means the date this Agreement and the terms hereof become effective. The Effective Date shall be the first date on which the Licensee or a User or End-User shall access the Software by logging onto the Software with the user identification and password provided to Licensee by Licensor.
“End-User” means the actual office personnel that will be accessing and utilizing application via secure login and password.
"Environment" means the Equipment, operating system and network.
"Equipment" means computer hardware, telecommunications hardware, accessories, and attachments, alterations of and spare parts for that Equipment.
"Installation Date" means the date by which installation of the Software must be completed.
"User" means any person authorized by Licensee to have access to, and to use, the Software, subject to the maximum number specified in Exhibit "A" hereto.
"Software" means the products covered by this License Agreement, which is named CounselorMax®, a customized application that was developed for housing counselors, which includes the following general functions; (1) Marketing/outreach (2) Intake, (3) Education, (4) Evaluation, (5) Loan, (6) Transactions – third party provider links (7) Reporting, and the use of the Tab Frame technology as the Calendar function. The web tool, with its current configuration using the Tab Frame, Smart Evaluation and other technological functions, configured in separate modules make up the basic foundation of the software.
"Update" means the supply of new versions of the Software as they are released;
1.2 For the purposes of interpretation and construction of this Agreement:
1.2.1 Words importing one gender include the others;
1.2.2 Words importing the singular or plural number include the plural and singular number respectively;
1.2.3 References to sections, clauses, and Exhibits are references to sections, clauses and exhibits in this Agreement;
1.2.4 Any Exhibits, and the provisions and conditions contained in such Exhibits, will have the same effect as if set out in the body of the Agreement. In the event of any conflict between the Exhibits and the body of this Agreement, the provisions and conditions of the body of this Agreement will prevail;
1.2.5 Headings are inserted for the sake of convenience of reference only and do not affect the interpretation of this Agreement;
2.1 The Licensor agrees to provide Licensee access to the Software and to make available updates to the Software as and when new versions are released, provided that the Licensee has made the payments due on both License and Update fees up to that time, if the payment of such fees has not been waived by Licensor in accordance with section 3.5.
2.2. The Licensee shall have the right to extend the use of the Software to additional and/or related parties subject to the payment of additional fees as specified in section 3.1 as long as Licensee is in compliance with the terms of this Agreement.
3. Charges and Payments
3.1 Price The Licensee shall pay annual license fees as specified in Exhibit “A” (see attached).
3.2 Payment The Licensee shall pay Licensor as specified in Exhibit “A” (see attached).
3.3 Increases in Fees The Licensor shall have the right to increase the license fees upon renewal of this Agreement.
3.4 Customization The Licensee may have the Software customized by Owner, pursuant to execution of a separate agreement between Licensee and Licensor, to better suit Licensee's specific organization. The cost of such customization will be dependent on the scope of such customization and subject to agreement between Licensee and Licensor.
3.4.1 Total Charges Subject to sections 3.1, 3.3 and 3.4 and to any agreed variations or change requests, the licensee fees specified in this Agreement constitute the total charge to the Licensee.
3.4.2 Waiver of Fees Licensor may waive Licensee's obligation to pay any of the fees or charges payable pursuant to sections 3.1 through 3.4, provided that any such waiver shall be set forth in Exhibit "A" hereto or in a separate writing signed by Licensor.
3.5 Term The length of the license granted hereby shall be for a period of one (1) year, commencing on the Effective Date of this Agreement (the "Term"). The Term of the license shall be subject to extension upon request by Licensee and approval by Licensor.
4. Delivery, Installation and Use
4.1 The Licensor will deliver Access to the Software to the Licensee.
4.2 The Licensor will provide reasonable instructions to enable the Licensee to access the Software from Equipment at each Location.
4.3 The Licensor will supply the Software via the Internet.
4.4 The Licensor will make available updates to the Software at the server level as they become available.
4.5 The Licensee agrees to implement and maintain industry best practices with respect to the security of, and access to, the Software, including the issuance and change of passwords required for access to the Software. Licensee accepts all risks and liability resulting from any failure to adopt and maintain such industry best practices.
4.6 All customer support for Licensee's use of the Software shall be provided by Licensor, in accordance with the provisions of Exhibit A hereto.
4.7 The Licensee agrees that Licensor shall have access to all client data that Licensee shall enter into the Software for customer support purposes only. NeighborWorks America is committed to ensuring ongoing improvement and enhancement of the CounselorMax functionality, maintenance, customer support and communications. In order to do this, NeighborWorks may occasionally analyze non-client level data and other organizational use of CounselorMax. This information will be used only for these purposes and no organization-level data will be shared with any external entity without prior consent of the organization. It is also important to note that none of this analysis is linked to a client name or other personal identifier and does not impinge on consumer privacy.
4.8 Upon request of Licensor, the Licensee agrees to provide Licensor with feedback concerning the efficacy of the Software in managing Licensee's counseling activities. The provision of such feedback shall include, if requested by Licensor, the participation of authorized Users in focus groups or other meetings conducted by Licensor.
4.9 Licensee hereby agrees and acknowledges that Licensee agrees to the terms of this Agreement upon the use of the Software by any End-User of the Licensee, and that each End-User accepts the terms on behalf of both the Licensee and the End-User.
Both parties agree that, unless they have the prior written consent of the other, they will not use or disclose to any third party (other than for the purpose of performing this Agreement) the terms and conditions of this Agreement or any information which is confidential to the other party. The obligations of this section 5 shall survive termination or cancellation of this Agreement.
Neither party will advertise or publicly announce any matter relating to the existence of this Agreement, without the other's prior written consent, which will not be unreasonably withheld.
The Licensor will provide the Licensee, via the Software, with all materials for training and operating the Software (“Documentation”). Amendments to the Documentation will be provided with each Update to the Software.
8.1 The Licensor warrants that:
8.1.1 It has the right and authority to grant a license for the Software supplied to the Licensee.
8.1.2 The Software, when used in the specified operating environment, will conform to its published specifications at the time the Software is supplied by the Licensor;
8.2 The Licensor will take action to correct any defect in the Software which is notified to the Licensor within 90 days of notice provided that the Licensee has complied with all the Licensor's Equipment recommendations and instructions concerning the access and use of the Software. This warranty is void if failure of the Software results from accident, abuse or misuse.
8.3 Notwithstanding the foregoing, the Licensor shall have no obligation to correct defects in the event that all or any part of the Software is modified or misused by the Licensee without the approval of Licensor.
8.4 The above warranties are in lieu of, and the Licensor disclaims, all other warranties, express or implied, which may be lawfully excluded, including, but not limited to warranties of description, design, merchantability or fitness for a particular purpose.
9.1 All intellectual property rights which may exist in the Software and associated Documentation shall remain at all times with the Licensor, but the Licensee shall have a license to use the Software upon the terms and conditions of this Agreement.
9.2 The parties shall execute all documents and do all acts and things reasonably required for the purpose of giving effect to section 12.1.
The Software is owned by Licensor, and is protected by U.S. and International copyright laws and treaty provisions. Licensee has a restricted license to the Software and no ownership interest of any kind in the Software. No title shall be deemed to transfer to Licensee regarding the Software or any portions thereof or material provided therewith, including any associated copyrights, trademarks and other intellectual property rights. Title and ownership in such remains with Owner.
Licensee may not reverse engineer, decompile, or disassemble the Software product and may not copy the written materials accompanying the Software. The license granted hereby is for the use of the End Users specified in the CounselorMax Order Form only. Licensee may not sublicense, rent or lease the Software to others.
12. Intellectual Property Rights Indemnity
The Licensor will indemnify the Licensee against and will at its cost defend or settle any claim, suit, action or proceeding (collectively called an "Action") brought against the Licensee to the extent that the Action is based on a claim that the Licensee's use of deliverables supplied by the Licensor constitutes a breach of any patent, copyright, trade secret or other proprietary right provided that:
12.1 The Licensee fully co-operates with the Licensor in defending or settling the Action and makes its employees available to give statements, advice and evidence, as the Licensor may reasonably request; and
12.2 The Licensor is notified promptly in writing of any Action, and shall have complete authority and information required for the conduct of the defense or settlement of the Action and all negotiations conducted for the purpose of settlement.
13. Limitation of Liability
13.1 The warranties in section 8 replace all other representations or warranties (statutory, express or implied) and all such representations and warranties (save any which may not lawfully be excluded) are expressly excluded, including, without limitation, the implied warranties of merchantability and fitness for any particular purpose.
13.2 Neither party will under any circumstances be liable under the law of tort, contract or otherwise for any loss of profits or savings or for any indirect or consequential loss or damage, however caused, arising out of or in connection with the performance or non-performance of this Agreement.
13.3 The Licensor's liability to the Licensee arising out of any claim for damages for any cause whatsoever will under no circumstances exceed in aggregate the total amount of the sums actually paid by the Licensee to the Licensor for the goods or services which gave rise to the claim.
13.4 No action arising out of this Agreement, may be brought more than two (2) years after the party bringing the action became aware, or reasonably ought to have been aware, of the circumstances giving rise to the action.
14.1 Immediate Termination
Either party may terminate this Agreement forthwith:
14.1.1 If the other party assigns its rights or obligations under the Agreement otherwise than in accordance with the provisions of section 19; or
14.1.2 if the other party commits a breach of copyright or any other breach of intellectual property rights, or a breach of confidentiality; or
14.1.3 A party's performance of its obligations hereunder is made impossible by the occurrence of an event of force majeure, as defined in section 15, or by Licensor’s cessation of business in the ordinary course or its inability to provide Licensee support services in the ordinary course of business.
14.2 Termination by Either Party on Notice
If one party defaults in the performance of any of its obligations under this Agreement and:
14.2.1 the default is capable of being remedied, and, within thirty (30) days of notice by the non-defaulting party specifying the default, is not remedied, then the non-defaulting may by notice terminate this Agreement; or
14.2.2 The default is not capable of being remedied the non-defaulting party may immediately terminate, or temporarily suspend the operation of this Agreement until the default is remedied, at its sole discretion.
14.3 Remedies on Termination
Upon termination of this Agreement the Licensee shall, at the Licensor's option, return or destroy any copies of the Software and related Documentation in the possession or control of the Licensee.
15. Force Majeure
15.1 Neither party will be liable for any act, omission, or failure to fulfill its obligations under this Agreement if such act, omission or failure arises from any cause reasonably beyond its control including acts of God, strikes, lockouts, labor disputes, riots, acts of war, epidemics, governmental action after the date of this Agreement, fire, communication line failures, power failures, earthquakes or other disasters (called "Force Majeure").
15.2 The party unable to fulfill its obligations due to Force Majeure will immediately:
15.2.1 Notify the other in writing of the reasons for its failure to fulfill its obligations and the effect of such failure;
15.2.2 Use all responsible endeavors to avoid or remove the cause and perform its obligations.
No delay, neglect or forbearance by either party in enforcing against the other any provision of this Agreement will be a waiver, or in any way prejudice any right, of that party.
If any provision of this Agreement is held to be invalid, illegal or unenforceable, such provision will be severed and the remainder of the Agreement will remain in full force and effect.
Any notice given pursuant to this Agreement will be sufficiently given if it is in writing and delivered, or sent by prepaid post or facsimile to the other party at the address as shown below:
If to Licensor:
1325 G Street, NW, Suite 800
Washington, DC 20005
Attention: Jayna Bower
With a copy to:
1325 G Street, NW, Suite 800
Washington, DC 20005
Attention: Office of General Counsel
If to Licensee:
To the Administrator named, and at the address specified, in the application form submitted by Licensee to Licensor to request the license and the access to the Software granted under the terms of this Agreement.
The Licensee shall not assign or transfer its rights or obligations under this Agreement without the prior written consent of the Licensor, which shall not be unreasonably withheld.
Any modification to or variation of this Agreement (i) must be in writing and signed by authorized representatives of the Licensor and the Licensee or (ii) must be communicated to Licensee by Licensor in writing or by e-mail or by notice set forth in the Software and ratified by Licensee by its subsequent use of the Software.
21. Entire Agreement
The parties acknowledge that this Agreement contains the whole of the contract and understanding between them. There are no conditions, warranties or other understandings affecting the arrangements between the parties other than those set out herein and this Agreement replaces all prior Agreements and understandings (if any) with respect to the subject matter of this Agreement.
22. Subject to District of Columbia Law
The parties agree that the laws of the District of Columbia shall govern this Agreement.
23. Disputes and Remedies
23.1 The parties agree to use their best efforts to resolve any dispute, which may arise under the Agreement through good faith negotiations. No party shall commence any litigation in relation to this Agreement unless it has first invited the authorized representative of the other party to meet with its own authorized representative for the purpose of endeavoring to resolve the dispute on mutually acceptable terms.
23.2 Any dispute arising under this Agreement which cannot be settled by negotiation between the parties or their respective representatives shall be submitted to mediation before commencing any litigation. Either party may initiate mediation by giving written notice to the other party.
23.3 The parties shall continue to perform their obligations under the Agreement as far as possible as if no dispute had arisen pending the final settlement of any matter referred to mediation.
License Fees and Payments
License Fee: In consideration of Licensee's use of the Software, the standard annual license fee shall be $595 (the "Annual Fee") which allows a one (1)-year Term that includes 5 End Users renewable on the anniversary of the initial use of the Software (if applicable). Licensor shall reserve the right to change the Annual Fee at its’ discretion.
The Annual Fee shall include:
Billing: Payments: In accordance with the provisions set forth in the "License Fee" section above, all payments of an Annual Fee or any other fee (if applicable) shall be required during the one (1)-year Term of the Agreement. Additional End Users may be added to a license at a cost of $150 per each additional End User (if applicable). This fee is also renewable on an annual basis due by the anniversary date of the initial use of the Software.