This Hosted License Agreement (this "Agreement") is entered into as of the day it is accepted (such day, the "Effective Date") on behalf of the person or entity completing the order form to purchase a hosted license (such person or entity, the "Licensee"). The Agreement is entered into by and between Penergy Technologies, Inc., a Virginia corporation (Manakin-Sabot, Virginia) ("Penergy Technologies, Inc."), and Licensee.

 

 

Penergy Technologies, Inc. has developed proprietary software that may be used in the administration, reporting, and auditing of time incurred and fees charged in the performance of services, which software is promoted and licensed by Penergy Technologies, Inc. under the name eFAACT® electronic Federal Auditing and Contracting Tool (the "Software").  Penergy Technologies, Inc. acts as an application service provider, hosting the Software on dedicated servers so that it may be accessed by users via the Internet.

 

Licensee is seeking a hosted license to the Software for use in connection with the services it performs.  Penergy Technologies, Inc. is willing to grant Licensee a hosted license to the Software, pursuant to the terms and conditions of this Agreement.

 

 

BY COMPLETING THE ORDER PROCESS FOR THE HOSTED SOFTWARE, LICENSEE ACKNOWLEDGES THAT A REPRESENTATIVE OF LICENSEE HAS READ THIS AGREEMENT, UNDERSTANDS THIS AGREEMENT, AND ACCEPTS AND AGREES, ON BEHALF OF LICENSEE, THAT LICENSEE SHALL BE BOUND BY THE TERMS OF THIS AGREEMENT.  IF LICENSEE IS UNWILLING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, LICENSEE SHOULD NOT COMPLETE THE PROCESS OF ORDERING THE SOFTWARE, AND LICENSEE SHOULD REFRAIN FROM ACCESSING OR USING THE SOFTWARE IN ANY WAY.

 

 

In consideration of the mutual promises and covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Penergy Technologies, Inc. and Licensee hereby agree as follows:

 

1.            License and Reservation of Rights.

 

1.1.       Hosted Software License.  Throughout the term of this Agreement, Penergy Technologies, Inc. shall host, or arrange for the hosting of, a web site that can be accessed via the Internet, on one or more servers of Penergy Technologies, Inc.’s designation, through which representatives of Licensee can access and use the Software (such web site, the "Site").  Subject to the terms and conditions of this Agreement, including Licensee’s full and timely payment of the applicable Hosted License Fee, as defined in Section 3.1, Penergy Technologies, Inc. hereby grants to Licensee a limited, non-exclusive, non-transferable, non-sublicensable license to access the Site for the purposes of accessing and using the Software and any instructions or user information accompanying the Software.

 

1.2.       Authorized Users.  For purposes of this Agreement, an "Authorized User" shall be an employee or independent contractor of Licensee for whom a log-on name and password have been created by Licensee.  Access to and use of the Software is limited to Authorized Users.

 

1.3.       Administrators.  For purposes of this Agreement, an "Administrator" shall be an employee or independent contractor of Licensee who shall have access to all functionality of the Software.  Licensee may qualify an unlimited number of Authorized Users to serve as Administrators on Licensee’s behalf.  However, for the Hosted License Fee, as defined in Section 3.1, only two (2) Administrators will have access to the Site, the Software.  If Licensee wants additional Administrators to have concurrent access to the Site, Licensee must pay the applicable fee to add Administrators, pursuant to Section 3.1.

 

1.4.       Restrictions on Access to and Use of the Software.

 

a.            Intellectual Property Defined.  For purposes of this Agreement, "Intellectual Property" means (i) all inventions or discoveries (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all patents, patent applications, and patent disclosures, together with all reissuances, continuations, continuations-in-part, divisions, revisions, extensions, and reexaminations thereof; (ii) all trademarks, service marks, trade dress, logos, trade names, and corporate names, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith; (iii) all works, including but not limited to software code, that may be the subject of copyright protection, all copyrights, and all applications, registrations, and renewals in connection therewith; (iv) all trade secrets and confidential business information (including ideas, research and development, know-how, formulae, methodologies, compositions, manufacturing and production processes and techniques, technical data, designs, drawings, specifications, mailing lists, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals);
(v) all computer software (including data and related documentation); (vi) all know-how; (vii) other proprietary rights; (viii) all statutory protection obtained or obtainable on any of the foregoing; (ix) all claims or causes of action arising out of or relating to infringement or misappropriation of any of the foregoing; and (x) all copies and tangible embodiments thereof (in whatever form or medium).

 

b.            Copying and Distribution.  Licensee expressly acknowledges that the Software and all Intellectual Property related to the Software contains proprietary and confidential information of Penergy Technologies, Inc. that Penergy Technologies, Inc. protects as confidential information and trade secrets.  Neither Licensee nor any Authorized User may disclose any part of the Software, any Intellectual Property related to the Software, or any other information provided by Penergy Technologies, Inc. to Licensee pursuant to this Agreement to any other person or entity.  Further, under no circumstances may Licensee or any Authorized User:  (i) decompile, reverse engineer, modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, sell, or delete the Software, any Intellectual Property, products, or services obtained from Penergy Technologies, Inc.; or (ii) directly or indirectly, sell, license, or offer for sale any part of the Software.

 

c.            Prohibited Acts.  Licensee and all Authorized Users shall access and use the Software in strict accordance with the terms and conditions of this Agreement, and only for Licensee’s internal business purposes pertaining to administration, reporting, and auditing functions in connection with its services.  Neither Licensee nor any Authorized User shall post, transmit, re-transmit, process or store material on or through the Software, the Site, or any of Penergy Technologies, Inc.’s servers or computer networks that Penergy Technologies, Inc. reasonably determines, in its sole judgment:  (i) is in violation of any local, state, federal or foreign law or regulation; (ii) is threatening, pornographic, obscene, indecent, or defamatory to any individual, group, or entity; or (iii) violates the rights of any person, including rights protected by laws governing publicity, copyright, trade secret, patent, or other Intellectual Property.  Licensee shall be solely responsible for determining what laws and regulations are applicable to its and its Authorized Users’ use of the Software, the Site.

 

1.5.       Additional Software and Services.  In the event that Licensee is required to license any third party software, or Licensee has to obtain services from third parties (such as an Internet Service Provider) to access and use the Software or the Site, obtaining such licenses and services and the payment of any associated taxes, fees, and costs shall be the sole responsibility of Licensee.

 

1.6.       Rights Reserved.  As between the parties, Penergy Technologies, Inc. exclusively owns, and shall exclusively own, the Software, the Site, and all Intellectual Property associated with or incorporated within the Software and the Site (collectively, "Penergy Technologies, Inc. Intellectual Property").  Licensee will not have any rights in, or with respect to, any Penergy Technologies, Inc. Intellectual Property, except those limited rights expressly granted by Penergy Technologies, Inc. in this Agreement.  All licenses, rights, and interest, including all right, title, and interest in and to the Penergy Technologies, Inc. Intellectual Property, not specifically granted to Licensee hereunder will be, and are specifically and entirely reserved to Penergy Technologies, Inc. and may be fully exploited by Penergy Technologies, Inc. without regard to the extent to such rights may be competitive with this Agreement or the rights granted hereunder.

 

1.7.       Rights in Licensee Data.  As between the parties, Licensee exclusively owns, and shall exclusively own, all data entered into the Software by Authorized Users of Licensee in the course of using the Software, as well as all data generated, compiled, or otherwise produced by the Software in the course of Authorized Users’ use of the Software (collectively, such data, the "Licensee Data").  Penergy Technologies, Inc. acknowledges that the Licensee Data may include information that Licensee considers to be proprietary and confidential.  Penergy Technologies, Inc. will not disclose the Licensee Data or any portion thereof to any other person or entity, and Penergy Technologies, Inc. will not use the Licensee Data except as necessary to fulfill its obligations to Licensee pursuant to this Agreement.

 

1.8.       Distinction between Hosted License and Site License.  Prior to the Effective Date of this Agreement, Licensee may have entered into a separate contract with Penergy Technologies, Inc., pursuant to which Penergy Technologies, Inc. provided Licensee with a copy of the Software on a disc, to be installed on hardware located at Licensee’s premises, and Penergy Technologies, Inc. granted Licensee a license to use the Software (any such Agreement, a "Site License Agreement").  Whether Licensee is a party to a separate Site License Agreement, and continues to receive and pay for maintenance services for the Software from Penergy Technologies, Inc. pursuant to such Site License Agreement will affect the amount of the Hosted License Fee to be paid by Licensee to obtain a hosted license under this Agreement.  However, any rights granted to Licensee pursuant to a Site License Agreement are independent of the rights granted pursuant to this Agreement.  To the extent that Licensee has entered into a Site License Agreement prior to the Effective Date of this Agreement, upon entering into this Agreement, Licensee shall discontinue its use of the Software installed on hardware located at Licensee’s premises and commence use of the hosted Software accessed through the Site, pursuant to this Agreement, throughout the term of this Agreement.  To the extent that Licensee requires assistance from Penergy Technologies, Inc. in replicating the data stored in the Software installed on hardware located at Licensee’s premises in the hosted Software, for purposes of enabling Licensee to use the hosted Software pursuant to this Agreement, Penergy Technologies, Inc. will provide such assistance.

 

2.            Services.  Penergy Technologies, Inc. shall provide the following services (the "Services") in connection with the Software during the term of this Agreement:

 

2.1.       Hosting Services.  In hosting the Site, Penergy Technologies, Inc. will use commercially reasonable efforts to provide services and bandwidth of a quantity and quality reasonably sufficient to accommodate Licensee’s use of the Software.  Penergy Technologies, Inc. will also use commercially reasonable efforts to assure that the Site will be available at least twenty-three (23) hours a day, seven (7) days a week, so that Licensee may have access to and use of the Software on a fairly constant basis.  Penergy Technologies, Inc. will use commercially reasonable efforts to schedule any maintenance or upgrades within the same sixty (60) minute time period each day, so that Licensee may have continuous access to and use of the Software during the remaining twenty-three (23) hours each day.  Notwithstanding the foregoing, from time to time, Penergy Technologies, Inc. may have to limit or suspend Licensee’s access to the Site and the Software for more than sixty (60) minutes to perform necessary maintenance or upgrades.  Penergy Technologies, Inc. will use commercially reasonable efforts to provide Licensee with forty-eight (48) hours’ advance notice of any maintenance activities scheduled to occur during a time other than the daily maintenance period, together with a good faith estimate of the length of time for which Licensee’s access to the Site and the Software will be limited or suspended.  Nonetheless, Licensee acknowledges that Licensee may occasionally experience temporary interruption of service, causing inability to access the Site or to access or use the Software, without advance notice and for an indeterminate period of time.

 

2.2.       Support and Maintenance Services.  Penergy Technologies, Inc. will be under no obligation to provide any maintenance, support, or related services to Licensee or any Authorized User, except as specifically provided in this Section 2.2.

 

a.            Correction of Material Errors.  During the term of this Agreement, Penergy Technologies, Inc. will use commercially reasonable efforts to promptly correct any Material Error in the Software that is reported by Licensee to Penergy Technologies, Inc..  For purposes of this Agreement, a "Material Error" is any failure of the Software to operate substantially in accordance with any instructions or user information accompanying the Software, or any other documentation relating thereto, which such failure materially impairs the functionality of the Software.  Licensee will promptly provide information and cooperation reasonably necessary for Penergy Technologies, Inc. to correct reported Material Errors.  If Penergy Technologies, Inc. is unable to correct a Material Error within a commercially reasonable period of time after receiving notice of the Material Error, then Licensee’s exclusive remedy shall be to terminate this Agreement and Penergy Technologies, Inc.’s sole responsibility shall be to refund to Licensee a pro-rated portion of the Hosted License Fee paid with respect to the term in which the Agreement is terminated, in accordance with the terms of Section 7.4 of this Agreement applicable to termination of the Agreement without cause.

 

b.            Technical Support.  Upon the occurrence of any other error, defect, or problem not amounting to a Material Error, Licensee will provide qualified and competent personnel to investigate in an effort to remedy such error, defect, or problem.  If Licensee is unable to resolve the error, defect, or problem after a reasonable period of time, Licensee will report it to Penergy Technologies, Inc., who, if requested, will use reasonable efforts to provide technical assistance to Licensee to identify and remedy such error.  Penergy Technologies, Inc. reserves the right to charge an additional fee for any services and technical assistance that it provides in the event that Licensee reports an error, including a Material Error, with the Software or requests technical support from Penergy Technologies, Inc., and Penergy Technologies, Inc. reasonably determines that:  (i) such reported error did not arise solely as a result of a failure, flaw, error, or defect in the Software, but was due in whole or part to some unrelated cause, including but not limited to user error by any Authorized User or any use of the Software not in compliance with the terms of this Agreement or (ii) the request for technical support does not arise as a result of or is not related to remedying any failure, flaw, error, or defect in the Software.

 

2.3.       Training.  Penergy Technologies, Inc. will have no obligation under this Agreement to provide any training relating to the Software to Licensee or any Authorized User.  To the extent that Licensee desires to obtain training in the use of the Software, Licensee may retain Penergy Technologies, Inc. to provide training services, in the form of any of the training programs offered by Penergy Technologies, Inc. at the time of Licensee’s request, and for Penergy Technologies, Inc.’s then current rates for such programs.

 

2.4.       Additional Services.  If, following the execution of this Agreement, Penergy Technologies, Inc. agrees to perform additional services relating to the Software licensed pursuant to this Agreement, or to provide Licensee with additional materials, content, or deliverables relating to the Software, the parties shall execute a Statement of Work, in a form acceptable to both parties.  Each such Statement of Work shall set forth a description of the services to be performed, the deliverables to result from such services, the additional fees to be paid by Licensee, and any other pertinent terms to be agreed upon by the parties.

 

3.            Fees.

 

3.1.       License Fees.  The "Hosted License Fee," as identified on the online order form completed by Licensee, is the amount to be paid by Licensee to obtain a hosted license to the Software for a period of one (1) year.  Payment of this Hosted License Fee, either on an annual basis or in equal monthly increments, will allow Licensee to provide two (2) workstations access to the Site, the Software.  If Licensee wants additional Administrators to have concurrent access to the Site, the Software, Licensee must pay the then-current fees charged by Penergy Technologies, Inc. to add Administrators to Licensee’s hosted license, at the time the additional Administrator access is ordered by Licensee.  Once Licensee has increased the number of Administrators having concurrent access to the Site, the Software, in accordance with this Section 3.1, the Hosted License Fee charged to Licensee shall be increased accordingly.

 

3.2.       Payments.  When Licensee completes its order for access to the Software, pursuant to this Agreement, which process includes but is not limited to Licensee’s acceptance of this Agreement, Licensee shall pay Penergy Technologies, Inc. the entire amount of the Hosted License Fee, or if permitted by Penergy Technologies, Inc., Licensee may pay the Hosted License Fee on a monthly basis, in equal monthly increments.  Upon each anniversary of the Effective Date, when this Agreement is renewed in accordance with the terms of Section 7.1, Licensee shall again either pay Penergy Technologies, Inc. the entire amount of the then-current Hosted License Fee, or if permitted by Penergy Technologies, Inc., pay the then-current Hosted License Fee on a monthly basis, in equal monthly increments, to continue having access to the Software.  In any event, regardless of whether Licensee pays the Hosted License Fee on an annual or monthly basis, Licensee shall always pay in advance of the period for which Licensee receives access to the Site, the Software, not in arrears.  Licensee shall also pay Penergy Technologies, Inc. any and all fees relating to training services contemplated by Section 2.3 of this Agreement, and any and all fees relating to additional services performed or deliverables provided by Penergy Technologies, Inc. in accordance with the terms of Statements of Work contemplated by Section 2.4 of this Agreement.  Any fees not paid on or before the due date relating thereto are subject to a finance charge of 18% per year (1.5% per month).

 

3.3.       Taxes.  Each party shall be responsible for paying any applicable federal, state, or local use, franchise, excise, sales, or privilege taxes, duties, fees, or similar liabilities chargeable to or against such party as a result of this Agreement.

 

4.            Representations and Warranties.

 

4.1.       Representations and Warranties of Penergy Technologies, Inc..  Penergy Technologies, Inc. represents and warrants to Licensee as follows:

 

a.            Ownership.  Penergy Technologies, Inc. owns all right, title, and interest in and to the Software and has the right to license the Software to Licensee as contemplated by this Agreement.

 

b.            Non-Infringement.  To Penergy Technologies, Inc.’s knowledge, the Software does not infringe any patent, copyright, or other Intellectual Property or proprietary right of any third party arising under the laws of the United States.

 

c.            Authority.  Penergy Technologies, Inc. is a corporation duly organized, validly existing, and in good standing under the laws of Virginia that has the corporate power and authority to enter into and perform its obligations under this Agreement and to consummate the transactions contemplated hereunder.

 

d.            Binding Obligation.  This Agreement constitutes the legal, valid, and binding obligation of Penergy Technologies, Inc., subject to applicable laws relating to bankruptcy, insolvency, or liquidation or any other laws or legal procedures affecting generally the enforcement of creditors' rights and applicable general principles of equity.

 

4.2.       Disclaimer of Additional Warranties.  Penergy Technologies, Inc. MAKES NO OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY (INCLUDING BUT NOT LIMITED TO ANY AND ALL WARRANTIES ARISING UNDER THE VIRGINIA UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT, VA. CODE § 59.1-501.1 ET SEQ.) WITH RESPECT TO THE SOFTWARE, ANY SERVICES, AND ALL Penergy Technologies, Inc. INTELLECTUAL PROPERTY PROVIDED BY Penergy Technologies, Inc. TO LICENSEE PURSUANT TO THIS AGREEMENT.  ANY AND ALL OTHER WARRANTIES, EXCEPT THOSE EXPRESSLY STATED IN SECTION 4.1, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED.  Penergy Technologies, Inc. DOES NOT WARRANT THAT: (a) THE SOFTWARE OR THE SITE WILL OPERATE UNINTERRUPTED OR CAN BE ACCESSED AND USED BY LICENSEE AT ALL TIMES WITHOUT INTERRUPTION, OR THAT THE SOFTWARE OR THE SITE WILL BE FREE FROM DEFECTS OR ERRORS; (b) THE SOFTWARE IS COMPATIBLE WITH ANY SOFTWARE, HARDWARE, OR SERVICE UTILIZED BY LICENSEE EXCEPT FOR THAT EXPRESSLY APPROVED BY Penergy Technologies, Inc.; OR (c) THE APPLICATIONS CONTAINED IN THE SOFTWARE ARE DESIGNED TO MEET ALL OF LICENSEE’S REQUIREMENTS.  THE SOFTWARE, ALL SERVICES, AND ALL Penergy Technologies, Inc. INTELLECTUAL PROPERTY ARE PROVIDED "AS IS" AND WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH LICENSEE.  THERE IS NO WARRANTY AGAINST INTERFERENCE WITH LICENSEE’S ENJOYMENT OF THE SOFTWARE.

 

4.3.       Representations and Warranties of Licensee.  Licensee represents and warrants to Penergy Technologies, Inc. as follows:

 

a.            Authority.  Licensee has full legal right and authority to enter into this Agreement.

 

b.            Non-Contravention.  Licensee’s execution and performance of this Agreement will not violate any other agreement or obligation by which Licensee is bound.

 

c.            Compliance with Restrictions.  Each Authorized User will access and use the Software in strict accordance with the terms and conditions of this Agreement, and Penergy Technologies, Inc. will not commit, directly or through others, any act expressly prohibited by the terms of Section 1.5, nor will it cause, permit, or encourage any Authorized User, employee, independent contractor, or third party to perform such actions.

 

d.            Enforcement of Security.  Licensee will take reasonable care to prevent unauthorized or improper access or use of the Site or the Software.  In no event will the standard of care exercised by Licensee be less than industry standards.  Licensee agrees to immediately inform Penergy Technologies, Inc. of any suspected or actual act or omission that may potentially undermine the security or integrity of the Site, the Software, or any Penergy Technologies, Inc. Intellectual Property, and will cooperate fully with Penergy Technologies, Inc. in investigating and resolving such suspected or actual act or omission.

 

5.            Limitation of Liability.  IN NO EVENT SHALL Penergy Technologies, Inc., OR ITS OFFICERS, DIRECTORS, MANAGERS, MEMBERS, EMPLOYEES, AGENTS, SUPPLIERS, CONTRACTORS OR LICENSEES BE LIABLE TO LICENSEE OR ANY OTHER PARTY FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA OR BUSINESS INFORMATION, OR OTHER PECUNIARY OR NON-PECUNIARY LOSS), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF EXPRESS OR IMPLIED WARRANTY, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY EVEN IF Penergy Technologies, Inc. WAS ADVISED ABOUT THE POSSIBILITY OF SUCH LOSS OR DAMAGE.  IN NO EVENT SHALL Penergy Technologies, Inc.’S LIABILITY UNDER ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR LICENSEE OR ANY AUTHORIZED USER’S USE OF THE SOFTWARE, THE SITE, ANY Penergy Technologies, Inc. INTELLECTUAL PROPERTY, OR ANY SERVICES PROVIDED BY Penergy Technologies, Inc. EXCEED THE SUMS ACTUALLY PAID BY LICENSEE TO Penergy Technologies, Inc. PURSUANT TO THIS AGREEMENT.

 

6.            Indemnity.

 

6.1.       Indemnity by Penergy Technologies, Inc..  Provided that Licensee and each Authorized User comply at all times with the terms of this Agreement, Penergy Technologies, Inc. agrees to indemnify and hold Licensee harmless from and against all claims, causes of action, liability, judgments, damages, fines, or expenses (including reasonable attorney’s fees and costs) (collectively, "Claims") against Licensee by a third party arising out of or in connection with a breach by Penergy Technologies, Inc. of any of its warranties set forth in Section 4.1.  Licensee will promptly notify Penergy Technologies, Inc. if any such claim is brought or threatened against Licensee.  Licensee will not settle or compromise any such actual or threatened claim without Penergy Technologies, Inc.’s prior consent, which consent shall not be unreasonably withheld, and Penergy Technologies, Inc. is permitted to control fully, at its sole expense, the defense and settlement of any such claim.

 

6.2.       Indemnity by Licensee.  Licensee agrees to indemnify and hold Penergy Technologies, Inc. harmless from and against all Claims suffered by or threatened against Penergy Technologies, Inc. arising out of or in connection with:  (a) a breach by Licensee of any of its warranties set forth in this Agreement; (b) any breach by Licensee or any Authorized User of the provisions of Section 1.5; or (c) an act or omission of Licensee, an Authorized User, or any other employee or independent contractor of Licensee.  Penergy Technologies, Inc. will promptly notify Licensee if any such claim is brought or threatened against Penergy Technologies, Inc..  Penergy Technologies, Inc. will not settle or compromise any such actual or threatened claim without Licensee’s prior consent, which consent shall not be unreasonably withheld, and Licensee is permitted to control fully, at its sole expense, the defense and settlement of any such claim.

 

6.3.       Defense of Rights in the Penergy Technologies, Inc. Intellectual Property.  Penergy Technologies, Inc. shall give Licensee prompt written notice of any claim that any Penergy Technologies, Inc. Intellectual Property, or Licensee’s use thereof, as contemplated by this Agreement, violates, misappropriates, or otherwise infringes the Intellectual Property or proprietary rights of any third party.  In Penergy Technologies, Inc.’s opinion, if the Penergy Technologies, Inc. Intellectual Property or any part thereof may be likely to become, or actually becomes, the subject of an actual or threatened claim for infringement of the rights (including but not limited to Intellectual Property or proprietary rights) of any third party, Penergy Technologies, Inc. shall, at its sole expense and option, either procure for Licensee the right to continue using the Penergy Technologies, Inc. Intellectual Property, replace the infringing components of the Penergy Technologies, Inc. Intellectual Property with non-infringing components, or modify the Penergy Technologies, Inc. Intellectual Property so that it becomes non-infringing.  If, in Penergy Technologies, Inc.’s sole opinion, none of these options is reasonably practical, Penergy Technologies, Inc. may immediately terminate this Agreement and the license granted pursuant to this Agreement by providing written notice of termination to Licensee, in which event Penergy Technologies, Inc. shall provide Licensee with a pro-rated refund of the Hosted License Fee paid by Licensee with respect to the term in which the Agreement is terminated, in accordance with the terms of Section 7.4 of this Agreement applicable to termination of the Agreement without cause.  This Section 6.3 states Licensee’s exclusive remedy and Penergy Technologies, Inc.’s entire obligation regarding infringement of third party rights.

 

6.4.       Enforcement of Rights.  In the event that Licensee learns of any alleged infringement, misappropriation, or unauthorized use of the Software or any Penergy Technologies, Inc. Intellectual Property, Licensee shall promptly notify Penergy Technologies, Inc. in writing of such alleged infringement and of any available evidence thereof.  Penergy Technologies, Inc. shall have the right, but not the obligation, to prosecute any and all infringements of the Software and any Penergy Technologies, Inc. Intellectual Property, and to enter all settlements, judgments, or other arrangements respecting the same, all at its own expense.  Licensee shall cooperate with Penergy Technologies, Inc. in enforcing its rights in the Penergy Technologies, Inc. Software and Penergy Technologies, Inc. Intellectual Property, and shall permit any action to be brought in its name, and to join in any action if necessary or desirable.  Any damages or other recovery from such infringement actions shall be retained by Penergy Technologies, Inc., and Penergy Technologies, Inc. shall have no obligation to make any payments to Licensee.

 

7.            Term and Termination.

 

7.1.       Term and Renewal.  This Agreement shall commence on the Effective Date and, unless terminated sooner in accordance with its terms, shall continue for an initial term of one (1) year.  Upon the expiration of the initial term, this Agreement shall automatically renew for successive annual terms.  Licensee shall pay Penergy Technologies, Inc. the Hosted License Fee, at Penergy Technologies, Inc.’s then-current rates, either in full upon the commencement of each annual renewal term, or on a monthly basis upon each such renewal, as provided in Section 3.2 of this Agreement.

 

7.2.       Termination by Penergy Technologies, Inc. for Cause.  Penergy Technologies, Inc. may immediately terminate this Agreement by providing written notice of termination to Licensee if:  (a) Licensee or any Authorized User breaches or violates any provision of Section 1.3; (b) Licensee or any Authorized User breaches or materially violates any other term of this Agreement; (c) Licensee fails to pay any fees owing to Penergy Technologies, Inc. under this Agreement within thirty (30) days of the date such fees become due and payable; or
(d) Licensee becomes insolvent, executes an assignment for the benefit of its creditors, voluntarily files a petition in bankruptcy, or has a petition in bankruptcy filed against it and such petition is not dismissed within sixty (60) days.

 

7.3.       Termination without Cause.  Penergy Technologies, Inc. may terminate this Agreement, without cause, by providing Licensee with ninety (90) days’ notice of Penergy Technologies, Inc.’s intent to terminate the Agreement.  Licensee may also terminate this Agreement, without cause, by providing Penergy Technologies, Inc. with thirty (30) days’ notice of Licensee’s intent to terminate the Agreement.

 

7.4.       Economic Consequences of Termination.  If Penergy Technologies, Inc. terminates this Agreement for cause pursuant to Section 7.2, Licensee shall promptly pay to Penergy Technologies, Inc. all fees owed and unpaid as of the date of termination, including but not limited to any part of the Hosted License Fee owed for the portion of the then current term of the Agreement during which Licensee was provided access to the Site, the Software.  On the other hand, if either party terminates this Agreement without cause pursuant to Section 7.3, and Licensee has already paid the Hosted License Fee in full for the current term of the Agreement, the Hosted License Fee paid by Licensee for the term in which the Agreement is terminated will be pro-rated on a monthly basis, so that Penergy Technologies, Inc. can refund to Licensee the portion of the Hosted License Fee allocable to the months following termination of the Agreement.  Within sixty (60) days after termination of the Agreement pursuant to Section 7.3, Penergy Technologies, Inc. will refund to Licensee the applicable portion of the Hosted License Fee.  For avoidance of doubt, if Licensee has been paying the Hosted License Fee on a monthly basis during the term in which the Agreement is terminated, then Licensee will not be entitled to any refund upon termination.

 

7.5.       Discontinuation of Use of the Software following Termination.  Upon the termination of this Agreement for any reason whatsoever, Licensee and all Authorized Users shall immediately cease any and all access and use of the Software, and shall promptly return to Penergy Technologies, Inc. any and all materials, documents, and information in their possession, existing in any and all formats and residing on any media, relating to the Software and any Penergy Technologies, Inc. Intellectual Property.  Licensee shall have no further access to the Software or any Penergy Technologies, Inc. Intellectual Property following termination of this Agreement, unless Licensee has entered into a separate Site License Agreement with Penergy Technologies, Inc., as defined in Section 1.9, that grants Licensee rights in the Software independent of the rights granted pursuant to this Agreement.  In the event the parties have entered into a Site License Agreement, its terms shall govern following the termination of this Agreement.  Within ten (10) business days following termination of this Agreement, regardless of whether Licensee has entered into a separate Site License Agreement, Penergy Technologies, Inc. shall provide Licensee with a copy of the Licensee Data, as it existed in the Software as of the date of termination.  If Licensee has entered into a separate Site License Agreement with Penergy Technologies, Inc., the Licensee Data will be provided to Licensee in a form that will allow it to be readily imported into the Software licensed pursuant to the Site License Agreement, enabling Licensee to promptly access the Licensee Data in a useful form.  Penergy Technologies, Inc. will not be obligated to provide Licensee with any transition services upon termination of this Agreement, except pursuant to a separate Statement of Work governing the terms and conditions upon which such services will be provided.

 

7.6.       Survival.  All provisions of this Agreement that expressly, or by their nature, survive the termination of this Agreement shall so survive, including but not limited to the provisions of Section 1.4 (Restrictions on Access to and Use of the Software), Section 1.6 (Rights Reserved), Section 1.7 (Rights in Licensee Data), Section 1.8 (Distinction between Hosted License and Site License), Section 4.2 (Disclaimer of Additional Warranties), Section 5 (Limitation of Liability), Section 6.1 (Indemnity by Penergy Technologies, Inc.), Section 6.2 (Indemnity by Licensee), Section 7.4 (Economic Consequences of Termination), Section 7.5 (Discontinuation of Use of the Software following Termination), Section 7.6 (Survival), and Section 8 (General Provisions).

 

8.            General Provisions.

 

8.1.       Assignment.  Licensee shall not assign any or all of its rights or obligations under this Agreement without the prior written consent of Penergy Technologies, Inc., which consent Penergy Technologies, Inc. may withhold in its absolute discretion.  Any purported assignment of any of Licensee’s rights or obligations under this Agreement without Penergy Technologies, Inc.’s prior written consent shall be void.  Penergy Technologies, Inc. may freely assign or transfer any or all of its rights under this Agreement to any third party, including but not limited to any affiliated party, or a purchaser of substantially all of its business, membership interests, or assets.

 

8.2.       Relationship of the Parties.  Penergy Technologies, Inc. and Licensee are contractors independent of one another and neither party, nor its employees or agents, will be considered employees or agents of the other party for any purpose.  This Agreement does not create a joint venture, agency, or partnership, and neither party has the authority to bind the other to any third party.

 

8.3.       Further Assurances.  Each party agrees to execute such additional documents and take such other actions as the other party may reasonably request in order to secure and preserve any rights of either party arising hereunder, and to carry out more fully the transactions contemplated by this Agreement and the license granted hereunder.

 

8.4.       Notices.  Any notice or other communication required or permitted under this Agreement shall be given in writing and delivered by hand or by registered or certified mail, postage prepaid and return receipt requested, to Penergy Technologies, Inc. at the address set forth in the introduction to this Agreement and to Licensee at the address provided during the process of ordering the Software, or to such other address as a party might identify by giving notice pursuant to this Agreement.

 

8.5.       No Waiver.  No waiver or failure by either party to exercise any option, right, or privilege under the terms of this Agreement on any occasion or occasions will be construed to be a waiver of the same on any other occasion or of any other option, right, or privilege.

 

8.6.       Severability.  If any provision of this Agreement, or the application thereof, will for any reason and to any extent be determined by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Agreement will be interpreted in the manner that would best effect the intent of the parties.  The parties further agree to replace any such invalid or unenforceable provisions with valid and enforceable provisions designed to achieve, to the extent possible, the business purposes and intent of the invalid and unenforceable provisions.

 

8.7.       Force Majeure.  Neither party will be held responsible for any delay or failure in performance hereunder caused by fires, strikes, embargoes, acts of god, acts of terrorism, or other causes beyond its reasonable control.

 

8.8.       Applicable Law and Forum.  This Agreement is governed by the laws of the Commonwealth of Virginia, without regard to the conflict of laws principles of any jurisdiction.  Any and all claims arising out of or relating to this Agreement shall be commenced and maintained solely in a state or federal court of competent subject matter jurisdiction located within the Commonwealth of Virginia.  Licensee consents to personal jurisdiction and venue in any such court, and waives all objections to such jurisdiction and venue.

 

8.9.       Binding Nature.  This Agreement will be binding on and inure to the benefit of the parties and their respective heirs, successors and permitted assigns.

 

8.10.    Entire Agreement.  This Agreement, including the Exhibits to the Agreement, comprises the entire agreement between the parties with respect to the subject matter of this Agreement, and it supersedes all prior representations and agreements with respect to the subject matter hereof. This Agreement can be amended or modified only by written instrument signed by Licensee and a duly authorized officer of Penergy Technologies, Inc..

 

8.11.    Headings.  The headings used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

 

 

BY ACKNOWLEDGING ACCEPTANCE OF THIS AGREEMENT, THE REPRESENTATIVE COMPLETING THE ORDER FOR THE SOFTWARE ON BEHALF OF LICENSEE ATTESTS THAT HE OR SHE HAS READ THIS AGREEMENT, UNDERSTANDS THIS AGREEMENT, ACCEPTS THE TERMS OF THIS AGREEMENT, AND AGREES THAT LICENSEE SHALL BE BOUND BY SUCH TERMS.  IF LICENSEE IS UNWILLING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, LICENSEE SHOULD NOT COMPLETE THE PROCESS OF ORDERING THE SOFTWARE, AND LICENSEE SHOULD REFRAIN FROM ACCESSING OR USING THE SOFTWARE IN ANY WAY.