SOFTWARE LICENSE AGREEMENT

 

This Software License Agreement (“License Agreement”) is a binding legal contract between Orion Mobility Solutions, LLC (“Orion Mobility”) and the Customer, as identified in the applicable Order Form.  By signing this License Agreement OR by downloading, installing, accessing or using the software described herein (“Software”) you will be bound by the terms of this Agreement.  If you do not agree to the terms of this Agreement, Orion Mobility is not willing to license any right to use or access the Software to you.  In such event, do not install or use the Software and return this entire package within thirty (30) days of receipt for a refund of any fees that you have prepaid.

Definitions:

“Agreement” means this License Agreement and the applicable Order form, which terms are incorporated herein by this reference. If there is a conflict between any specific term in the Order Form and a specific term in this License Agreement, the specific term contained in this License Agreement shall control.

“Documentation” means the technical manuals and other written and electronic documentation relating to the use of and operation of the Software that are delivered or made available to you by Orion Mobility.

“Maintenance” includes certain upgrades, fixes to Software and updates to tax tables and codes, as applicable.

“Order Form” means a separate document, governed by this License Agreement, by which Customer orders the Software.

 “Software” means the software program(s) in object code format as identified in an applicable Order Form, including Updates and Documentation.

“Transaction(s)” means a relocation or move transaction for an individual that is moving or relocating and for whom the Software is being utilized to track expenses and provide expense management.

“Updates” means upgrades, revisions, enhancements or modifications to the Software that Orion Mobility makes generally available to customers through Maintenance. Updates shall not include any new versions or future products which Orion Mobility or third party vendors license separately.

“Users” refers to Customer and all users of the Software, including without limitation, Customer’s employees, agents or independent contractors.

“You” or “you” refers to the Customer and each individual (including without limitation employees of Customer) downloading, installing, accessing or using the Software.

SOFTWARE ACCESS AND USE LICENSE

The Software is licensed to you, not sold. Except for the limited license granted in this License Agreement, Orion Mobility and its licensors and suppliers retain all right, title and interest in the Software, Documentation, all copies thereof, and all proprietary rights thereto, including without limitation, copyrights, patents, trademarks and trade secret rights.

1.  GRANT OF LICENSE. 

·  Software.  Orion Mobility grants to you, during the term of this License Agreement and subject to the terms and conditions of this License Agreement and the applicable Order Form, a limited, nontransferable, nonexclusive and nonassignable license, without right of sublicense, to have the Software installed and operated by Customer for the sole purposes of performing the number of Transactions purchased on the applicable Order Form (“License”).

·  Term.  This Agreement shall commence on the earlier of (i) the date the Order Form is executed by you or (ii) the date you first download, install, access or use the Software, and shall continue until the earlier of (x) the termination of this Agreement, or (y) the expiration or termination of the Transactions purchased on the applicable Order Form.  All Transactions must be used or initiated by December 31st of each year in which the order is placed. No refunds for unused and expired Transactions.  A 10% charge for support, maintenance, software upgrades and updates to application tax tables and coding is included in the price of each move license.

2.  LIMITATIONS ON LICENSE.  The license granted to you in this Agreement is restricted as follows: 

·  Limitations on Copying and Distribution.  You may not copy or distribute the Software except that you may duplicate the Software and Documentation in order to make a copy available to each User. Customer is responsible for all Users of the Software and shall ensure that all such Users comply with the terms of this License Agreement, including without limitation those terms contained in Sections 1, 2 and 16 of this License Agreement. You may make one copy of the Software solely for backup or archival purposes.  Each copy of the Software shall contain the copyright and other proprietary notices as provided in the Software and the Documentation provided to Customer hereunder.

·  Limitations on Reverse Engineering and Modification.  You may not reverse engineer, decompile, disassemble, modify or create works derivative of the Software.  You may not alter or modify any disabling mechanism which may be resident in the Software. You may not alter, merge, modify or adapt the Software or Documentation, nor in any way remove or obscure Orion Mobility’s copyright or trademark notices.

·    Rental and Third Party Use.  You will keep any passwords associated with the use of the Software in strict confidence, and will not share such passwords with any third party. You shall use the Software solely for your internal business purposes and shall not use the Software for marketing, renting, timesharing or service bureau purposes or allow others to use the Software for the benefit of any third party except as specifically contemplated under this Agreement.

3.  DISABLING MECHANISM.  YOU ACKNOWLEDGE AND AGREE THAT THE SOFTWARE MAY HAVE A MECHANISM WHEREBY ORION MOBILITY CAN DISABLE THE SOFTWARE.  YOU AGREE THAT ORION MOBILITY MAY USE ANY SUCH MECHANISM IN THE EVENT OF YOUR BREACH OF THIS AGREEMENT. YOU FURTHER ACKNOWLEDGE THAT ORION MOBILITY MAY INCLUDE WITHIN THE SOFTWARE A MEANS TO AUDIT OR DETERMINE THE NUMBER OF TRANSACTIONS UTILIZED THROUGH THE SOFTWARE AND THAT ORION MOBILITY CAN DISABLE THE SOFTWARE WHEN THE NUMBER OF TRANSACTIONS UTILIZED EXCEED THE NUMBER OF TRANSACTIONS PURCHASED ON THE APPLICABLE ORDER FORM.

4.  TERMINATION

·  Breach of Agreement.  Without prejudice to any other rights, Orion Mobility may upon thirty (30) days (10 days for nonpayment) prior notice terminate this Agreement and all rights granted hereunder if you fail to comply with any of the terms and conditions of this Agreement, including without limitation failing to pay the Fees when due. 

·    Infringement Claims.  In the event of a claim of intellectual property infringement by any third party relating to the Software, or your breach of Sections 1, 2, 5 and 16 hereunder, Orion Mobility reserves the right to immediately terminate this Agreement and the rights granted hereunder. 

·  Customer’s Termination Obligations.  In the event of any expiration or termination of this Agreement for any reason, you must remove all copies of the Software and all of its components from all of your systems, and destroy all such Software, components and copies, along with all related media and documentation. All licenses hereunder shall cease immediately upon such expiration or termination, and you shall immediately pay Orion Mobility all outstanding payments due for the Software or other charges pursuant to any applicable Order Form.

5.  EXPORT.  You may not export the Software without the prior written approval of Orion Mobility.  If the Software was purchased in the United States, you agree to comply with all applicable United States laws and regulations pertaining to export controls.  If the Software was purchased outside the United States, you may not re-export the Software except as permitted by the laws of the United States and the laws of the jurisdiction in which you purchased the Software.

6.  U.S. GOVERNMENT RESTRICTED RIGHTS.  The Software and Documentation are provided with RESTRICTED RIGHTS.  Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (a) through (d) of the Commercial Computer Software – Restricted Rights at 48 CFR 52.227-19, and in similar clauses in the NASA FAR Supplement, as applicable, and as may be amended and superseded from time to time.  Manufacturer is Orion Mobility Solutions, LLC, 88 Danbury Road, Wilton, CT 06897. 

7.  REPRESENTATIONS AND ACKNOWLEDGEMENTS.  

·  You represent to Orion Mobility that neither you nor your Users shall use the Software to upload, post, input, e-mail or otherwise transmit any content (i) that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (ii) that you do not have a right to transmit under any law or under contractual or fiduciary relationships; (iii) that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party; or (iv) that contains software viruses or similar harmful components or routines.

·   You agree not to use the Software in violation of any applicable local, state, national or international law or regulation.

·     You agree to promptly install and use Updates provided to you by Orion Mobility.

·    You acknowledge that successful implementation and use of the Software depends upon Customer’s provision of appropriate hardware and software, including without limitation, Microsoft Internet Explorer, version 5.0 or equivalent, or such other hardware or software as Orion Mobility may suggest from time to time (the “Operating Environment”). Customer is responsible for providing the Operating Environment at its own expense.

8.  FEES AND PAYMENT TERMS.  You agree to pay to Orion Mobility the fees in the amounts and at the times specified in the applicable Order Form(s). 

9.  NO WARRANTIES.  THE SOFTWARE AND MAINTENANCE IS PROVIDED ON AN “AS AVAILABLE,” “AS IS” BASIS.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, ORION MOBILITY AND ITS LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SOFTWARE, MAINTENANCE OR ANY OTHER SERVICES PROVIDED TO YOU, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  Orion Mobility DOES NOT WARRANT THAT THE  SOFTWARE, SERVICES OR MAINTENANCE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE, MAINTENANCE OR RELATED DOCUMENTATION WILL BE CORRECTED.  further, homestore does not warrant that the Software IS free of viruses or other harmful components.   

10.   NO LIABILITY FOR CONSEQUENTIAL DAMAGES.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY (INCLUDING ORION MOBILITY’S THIRD PARTY SUPPLIERS) SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT OR THIRD PARTY DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOST DATA, BUSINESS INTERRUPTION OR SIMILAR CLAIMS) WHETHER IN AN ACTION IN CONTRACT, IN TORT OR OTHERWISE, EVEN IF THE OTHER PARTY OR OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, ORION MOBILITY’S ENTIRE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY YOU TO ORION MOBILITY FOR THE SOFTWARE IN THE CALENDAR YEAR IN WHICH THE DIRECT DAMAGES ARE INCURRED.   The limitations of liability set forth in this Section shall not be applicable to a party’s obligations for indemnification, breaches of confidentiality, or Customer’s breach of the license rights under Section 1.  Further, the limitations of liability set forth in this Section shall act as a limitation to Customer’s payment obligations under any applicable Order Form.

11.  CUSTOMER INDEMNITY.  You agree to indemnify, defend and hold harmless Orion Mobility, its affiliates and subsidiaries, and their respective officers, directors, shareholders, agents and employees harmless from and against any and all third party claims of any kind (along with reasonable attorney's fees and litigation costs) arising out of, resulting from, or in connection with your breach of any representation, warranty or covenant contained in this Agreement or your or your Users’ use or misuse of the Software, including but not limited to, claims for personal injury or property damage.

12.   ORION MOBILITY INFRINGEMENT INDEMNITY. Orion Mobility shall indemnify, defend and hold harmless Customer and its officers, directors, shareholders, agents and employees harmless from and against any third party claim (along with reasonable attorney’s fees and litigation costs) to the extent that it is based upon a claim that Customer’s permitted uses of the Software hereunder constitutes an infringement of any patent issued in the United States, or any trade secret, copyright or other proprietary right (“Infringement Claim”). Customer shall: (i) notify Orion Mobility within thirty (30) days of any such suit, claim or proceeding; (ii) tender control of any such Infringement Claim to Orion Mobility; and (iii) reasonably cooperate with Orion Mobility in the defense or settlement thereof. Customer may participate in the defense of an Infringement Claim at Customer’s own cost and expense.

Upon notice of an Infringement Claim, or if in Orion Mobility’s opinion, such a claim is likely, Orion Mobility shall have the right, at its option and expense, to: (a) procure for Customer the right to continue using the Software; or (b) replace or modify the Software so that it provides substantially the same or greater functionality and performance than the infringing Software.  If in Orion Mobility’s opinion none of the foregoing options are reasonably available, Customer’s sole and exclusive remedy shall be to return the infringing Software to Orion Mobility in exchange for a refund of the fees Customer paid to Orion Mobility for such Software, less those amounts paid for Transactions already used by Customer.

Orion Mobility shall have no obligation for Infringement Claims under this Section where the Infringement Claim arises out of or results from your or your Users’ content; modifications to the Software or combinations of the Software with other services or products; your or your Users’ use of the Software in violation of this Agreement; if Orion Mobility has provided you with a non-infringing version of the Software and you do not promptly replace all copies of the Software with the non-infringing version; or the use of any version of the Software other than the most recent version of the Software to the extent that your liability for the Infringement Claim would have been avoided by use of such most recent version of the Software.

13.  GOVERNING LAW.  This Agreement is governed by and construed in accordance with the laws of the State of Illinois, U.S.A as applied to agreements entered into and wholly performed within Illinois between Illinois residents.  This Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods.  Any action or proceeding brought by either party hereto shall be brought only in a state or federal court of competent jurisdiction located in the County of Cook, State of Illinois and the parties submit to the in personam jurisdiction of such courts for purposes of any action or proceeding.

14.  FORCE MAJEURE.  Orion Mobility shall not be responsible for any delays, errors, failures to perform, interruptions or disruptions in the Software or Services caused by any acts of God, strikes, lockouts, riots, acts of war, changes in law or regulations, fire, flood, earthquake, storm, power failure or failures of the Internet. 

15.   NOTICES. Any notices required or permitted to be given pursuant to this Agreement shall be in writing, sent via certified mail, return receipt requested, addressed as set forth on the Order Form (except with respect to Orion Mobility, which shall be addressed as set forth below) or to such other address as may be amended or modified only in writing to the other party and shall be deemed to have been given when received:

                Orion Mobility Solutions, LLC

                88 Danbury Road

                Wilton, CT 06897

                Attn:  General Counsel

16.                CONFIDENTIAL INFORMATION. “Confidential Information” means information about Orion Mobility or Customer (or their respective affiliates’ or suppliers’) (“disclosing party”) business or activities that is proprietary and confidential, including, but not limited to the terms and conditions of this Agreement, products and services or business from which disclosing party derives economic benefit from the fact that the information is not generally known or may suffer economic loss, embarrassment or other detriment if that information is improperly disclosed, or which, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as confidential.  Confidential Information of Orion Mobility also includes information relating to the Software, and  any and all portions of the source and executable code of any software, including without limitation the Software.

Customer shall restrict access to the Confidential Information to only those employees, Users, agents and/or independent contractors engaged in a use permitted hereby and who enter into a written agreement containing confidentiality provisions at least as protective of the Confidential Information as those set forth herein.  Customer and Orion Mobility (“recipient”), each agrees that it and its respective employees, Users, agents and/or independent contractors (i) shall only use the Confidential Information for the purposes of performing its obligations under this Agreement, and shall not use the Confidential Information for any other purpose without the prior written consent of the disclosing party; and (ii) shall maintain the confidentiality and prevent disclosure to any third party of the Confidential Information using at least as great a degree of care as such party uses to maintain and prevent the disclosure of the confidentiality of it’s own most confidential information (and in no event less than a reasonable degree of care).  Customer shall take appropriate action by instruction or agreement with its Users to satisfy its obligations hereunder. 

Recipient acknowledges that the disclosure of any Confidential Information shall immediately give rise to continuing irreparable injury to such party inadequately compensable in damages at law, and the disclosing party shall be entitled to seek and obtain immediate injunctive relief against the breach or threatened breach of any of the foregoing confidentiality obligations, in addition to any other legal remedies which may be available.

Confidential Information shall not include information that: (i) is in or enters the public domain without breach of this Agreement: (ii)  the recipient lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; (iv) the recipient can demonstrate with documentary evidence that the recipient knew prior to receiving such information from the disclosing party; or (iv) recipient develops independently without use of disclosing party’s Confidential Information.

17.    RIGHT TO AUDIT.  Orion Mobility may from time to time request Customer to provide a certification signed by a duly authorized representative of Customer that actual use of the Software is in compliance with the terms of this Agreement.  Orion Mobility may also upon at least five (5) days prior notice perform an audit during regular business hours to determine compliance with the terms of this Agreement, provided that such audit shall not unreasonably interfere with Customer’s operations.

 

18.  GENERAL. This Agreement constitutes the entire understanding and agreement between Orion Mobility and you with respect to the transactions contemplated in this Agreement and supercedes all prior or contemporaneous oral or written communications with respect to the subject matter of this Agreement, all of which are merged in this Agreement.  You may not assign this Agreement in whole or in part without the prior written consent of Orion Mobility. Any such attempted assignment in violation of this Agreement shall be void and without effect. This Agreement shall not be modified, amended or in any way altered except by an instrument in writing signed by both of the parties.  In the event that any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree, the remainder of this Agreement shall remain valid and enforceable according to its terms.  Any failure by Orion Mobility or Customer to strictly enforce any provision of this Agreement will not operate as a waiver of that provision or any subsequent breach of that provision.  Each party shall obtain the other’s written consent prior to any publication, presentation, public announcement or press release concerning the relationship between the parties or the existence of terms and conditions of this Agreement.  The Disclaimer of Warranties, Limitations on Liability, Indemnity, Notices, Force Majeure, Customer Representations, General and such other provisions which by their nature should survive, will survive any termination or expiration of this Agreement. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT.