PortONE Internet

MASTER SOFTWARE AGREEMENT


You (the “Client”, "you", "your", and/or "yourself") enter into THIS MASTER SOFTWARE AGREEMENT (the “Agreement”) with PORT ONE INTERNET, INC. (“Port One”), a Connecticut corporation having an office located at 227 Progress Drive, Manchester, CT 06042 upon hiring (“Effective Date”) Port One to provide any software products or services.  These terms and conditions constitute a binding contract between you and Port One.  They explain Port One obligations to you, and explain your obligations to Port One.  By hiring Port One, you agree that any products or services you receive are provided in consideration of your agreement to abide by these following terms and conditions.

WHEREAS, Port One is in the business of developing software that is hosted by Port One for use by its clients (“Software”); 

WHEREAS, Client wishes to engage Port One to develop Software from time to time;

WHEREAS, the terms of this Agreement may also include terms of specific written work orders that will describe the specific work to be done by Port One;

WHEREAS, Port One is willing to provide such services in accordance with the terms of this Agreement.

NOW, THEREFORE, in consideration of the mutual promises and undertakings set forth herein, Port One  and the Client hereby agree as follows:

1. Work To Be Done By Port One

A.        Work Orders.  Whenever practical, Client and Port One shall enter into a written work order for the development of any Software (“Work Order”).  Each Work Order shall describe: (i) the purpose and functionality of the Software to be developed by Port One; (ii) the price to be paid by the Client to Port One for such work or the method of determining the price that Client will pay to Port One; (iii) the purpose to which the Client may put the Software and any restrictions on the usage of such Software by the Client that are different from or in addition to the restrictions set forth in this Agreement; (iv) the time period, if any, during which Port One shall develop the Software.  Neither Port One nor the Client shall be bound by the terms of any Work Order unless both Port One and the Client have agreed to, and have executed, such Work Order.  Port One may at its sole discretion decide whether or not to agree to any given Work Order.  Once Port One and the Client have agreed to, and have executed, a Work Order, such Work Order shall be deemed to be  part of this Agreement and shall be subject to and governed by all of the terms and conditions set forth in this Agreement, except for those terms and conditions of this Agreement that are specifically overridden by such Work Order.

B.        Other Work.  While the Parties agree that it is preferable to enter into Work Orders for all work, the Parties recognize that Port One may perform work for Client at the verbal or written request of Client, other than through a Work Order.  To the extent possible, all verbal requests by Client will be confirmed by Port One in writing.  Notwithstanding the foregoing, when the circumstances demonstrate that Client has, in fact, requested Port One to perform work, whether or not Port One acknowledges such a request in writing, Client shall be deemed to be bound by this Agreement and any existing Work Order relating to such Software which is the subject of the work request.  If a Work Order does not exist, the Parties agree to comply with the terms of this Agreement and shall proceed under the terms and conditions that have defined the Parties course of business for other work.  For purposes of this agreement, the term “Work Order” shall include the terms and conditions that have defined the Parties course of business of other work.

2. License To Use Software.

Port One hereby grants to the Client a non-exclusive, non-transferable, revocable license to use software developed pursuant to this Agreement and Work Orders that are made a part of this Agreement (the “Software”).  Port One may revoke this license if it determines that the Client has: (i) failed to make any payment required by this Agreement or any work order made a part of this Agreement; or (ii) failed to abide by any other requirement of this Agreement.  The license shall be deemed to be terminated  if this Agreement is terminated or if the Work Order to which the license relates is terminated.  Nothing in this Agreement or any Work Order shall be deemed to give the Client any ownership interest in any Software or in any intellectual property related thereto.  Port One may permit other persons to use the Software and any portion thereof.

3. Software to be Hosted by Port One. 

The Client shall have no right to possess any copy of any software developed by Port One pursuant to this Agreement or pursuant to any Work Order.  Port One shall control and host such Software and shall grant the Client access to use the Software.  The Client shall not access or use the Software for any purpose other than the purpose(s) described in the Work Order relating to such Software.  The Client shall not download any portion of any Software or permit any other person to do so.

4. Payment to Port One. 

4.1 Software Development Fees.  The Client shall pay to Port One all Software Development Fees described in each Work Order.

4.2 Hosting Fee.  For each item of Software, the Client shall pay to Port One a monthly Hosting Fee or PortOne Platform fee as set forth in each Work Order.  Port One may increase such Hosting Fee or PortOne Platform fee at any time and from time to time.

4.3 Method of PaymentPort One shall prepare and submit to the Client monthly invoices in which Port One shall indicate the amount due from the Client for the preceding month and/or the amount due pursuant to a Work Order (i.e., progress payments and final payments).  Payment of this amount shall be due on the first business day of the following month.  All such payments shall be in lawful moneys of the United States of America by business check, money order, cashier’s check, or bank check and shall be made payable, without condition, to “PORT ONE INTERNET, INC.” and remitted to “PORT ONE INTERNET, INC., 227 Progress Drive, Manchester, CT 06042”.

4.4 Late Payment by the ClientClient shall pay all invoices no later than ten (10) days after the due date.  If the Client fails to timely pay Port One, Port One shall be entitled to charge a Late Payment Fee equal to two and one half percent (2.5%) per month of the amount that was due but not paid from the due date of the invoice.  The Late Payment Fee will be waived if the Client pays an invoice no later than thirty days after the due date.

4.5 Collection.  In the event that Port One expends any sums to collect any amounts due it from the Client under the terms of this Agreement, the Client hereby agrees to pay to Port One all reasonable costs of collection, as allowed under existing state and federal law, including but not limited to attorneys’ fees, bank fees, court entry fees, court filing fees, and sheriff/marshal costs.

4.6 Taxes.  All amounts stated to be payable by the Client under this Agreement or any Work Order are exclusive of sales tax, value added tax, or any other taxes, charges, or duties to which the supply of goods or services by Port One hereunder may be subject or give rise.  Sales tax, value added tax, and any other taxes, charges, or duties plus any interest and penalties imposed with respect thereto shall, where applicable, be added to such amounts payable by the Client retrospectively if necessary, and shall be due and payable at the same time and in the same manner as such other amounts due hereunder are paid so that the net amount actually received by Port One after the imposition of such taxes, charges, duties, interest, and penalties shall not be less than the amount that Port One would have received if no such tax, charge, duty, interest, or penalty had been imposed.

5. Restrictions.

5.1 Unauthorized Use of Software.  The Client shall not use, copy, access, alter, improve, modify, edit, publish, repackage, or distribute any Software, or any portion thereof, in any manner not expressly permitted by this Agreement or the applicable Work Order. 

5.2 Permitting Others to Use SoftwareThe Client shall not re-license or permit any party to copy, use, access, alter, display, publish, repackage, or distribute the Software, or any portion thereof other than as set forth in the Work Order.

5.3 Reverse Engineering.  At no time shall the Client attempt to re-create, reverse engineer, decompile, or otherwise imitate or infringe any aspect of the Software or any algorithms employed by the Software.  The Client shall instruct all of its employees, contractors, agents and affiliates who are permitted to use the Software in any way pursuant to the terms of the Work Order that, as a condition of their usage, they may not attempt to re-create, reverse engineer, decompile, or otherwise imitate or infringe any aspect of the Software or any algorithms employed by the Software.

5.4 Source Code.  The Client will not receive and will not attempt to gain access to the source code underlying the Software.

5.5 Precautions by the ClientThe Client will take all measures necessary to prevent any unauthorized person from gaining access to the Software.

6. Ownership.

6.1 Retention of Ownership by Port OnePort One retains all of its ownership rights, title, and interest in and to the Software and any patent, copyright, trademark, technology, trade secret, or know-how incorporated into the Software.  This includes all copyright, patent and trademark rights in all material that is visually displayed through the use of the Software.  The Client is not acquiring any ownership right, title or interest of any nature whatsoever in the Software except the license rights provided in this Agreement. 

6.2 Derivative Works.  The Client shall have no right to create derivative works of any kind that are in any way based on the Software.

6.3 Possession.  The Software shall remain in the possession of Port One at all times.  The Client shall have no right to possess any copy of the Software or any portion thereof.

6.4 Cooperation.  The Client will use good faith efforts to cooperate with Port One in the protection of Port One’s intellectual property rights, at Port One’s reasonable request.  Should the Client become aware of any evidence suggesting that any person or entity is infringing any of the rights described in this Section 6, the Client shall report this fact to Port One immediately.  

6.5 Proprietary Notices.  The Client will not remove, alter, or conceal any Port One proprietary notice displayed on the Software nor will the Client authorize others to do so.

7. Termination.

7.1 Termination of Agreement by Port One.  Port One may terminate this Agreement at any time for any reason by giving the Client written notice of termination at least thirty (30) days prior to the date on which such termination is to become effective.

7.2 Termination of Agreement by the Client.  The Client may terminate this Agreement at any time for any reason by taking both of the following actions: (i) giving Port One written notice of termination at least thirty (30) days prior to the date on which such termination is to become effective; and (ii) delivering to Port One a termination fee of two thousand five hundred dollars ($2500.00) or a termination fee set forth in a Work Order (the “Termination Fee”).  IN THE EVENT OF A TERMINATION BY THE CLIENT, THE CLIENT SHALL REMAIN LIABLE FOR THE IMMEDIATE PAYMENT OF ANY MONIES DUE TO PORT ONE UNDER THE TERMS OF THIS AGREEMENT (INCLUDING ALL WORK ORDERS) FOR WORK DONE BY PORT ONE THROUGH 11:59 P.M. EASTERN TIME ON THE DATE ON WHICH THE TERMINATION TAKES EFFECT.

7.3 Effect of Termination.  Upon and after the termination of this Agreement:

(a) All of Port One’s obligations under this Agreement and related Work Orders shall be deemed null and void;

(b) All accrued and unpaid amounts shall become immediately due and payable;

(c) The Client shall cease to use the Software in any manner;

(d) All licenses granted pursuant to this Agreement shall terminate; and

(e) All access to the Software by Licensee shall terminate.

7.4 Continuing Obligations.  The expiration or termination of this Agreement shall not affect the following:

(a) the obligation of the Client to pay for services or access already received.

(b) the ongoing validity and enforceability of Sections 5, 6, 8, 9 and 11 of this Agreement.

7.5 Injunctive Relief.  Nothing in this Agreement shall limit the right of either party to seek injunctive relief, to the extent available, in respect of breaches of this Agreement.

8. Confidentiality.

8.1 Confidential Information.  Port One and the Client acknowledge that during the Term of this Agreement both parties may have access to proprietary or trade secret information of the other, including but not limited to information concerning the other's business affairs, property, methods of operation, processing systems, or other matters (the "Confidential Information").  The Confidential Information of Port One shall include but shall not be limited to the Software, this Agreement, and all Work Orders.

8.2 Obligations of Confidentiality.  Port One and the Client agree to maintain the Client’s Confidential Information and the Client agrees to maintain Port One’s Confidential Information in strict confidence and not to disclose the same to any third party without the prior written consent of the other party, save to the extent necessary for the proper performance of the parties’ respective obligations hereunder.  Without limiting the generality of the foregoing, Port One and the Client each agrees:

(a) not to disclose or permit any other person or entity access to the other party’s Confidential Information, except that disclosure or access shall be permitted to an employee, officer, director, agent, representative, external or internal auditor, attorney, or independent contractor of the party requiring access to such information in the course of his or her employment or services;

(b) to ensure that its employees, officers, directors, agents, representatives, external or internal auditors, attorneys and independent contractors are advised of the confidential nature of the other party’s Confidential Information, provided that, in any event, the Client and Port One shall each be liable for any breach of this Section 8.2 by its employees, officers, directors, agents, representatives, external or internal auditors, attorneys, and independent contractors and affiliates;

(c) not to alter or remove any identification, copyright or proprietary rights notice which indicates the other party’s ownership of any Confidential Information; and

(d) to notify the other promptly and in writing of the circumstances surrounding any possession, use, or knowledge of the other party’s Confidential Information at any location or by any person or entity other than those authorized by this Agreement.

8.3 Release of Information.

The Client specifically agrees that the Client's Confidential Information may be made available to third parties to the extent necessary or desirable for the proper performance of the Client's obligations under this Agreement. 

8.4 Exclusions.  Nothing in this Section 8 shall restrict either party with respect to information or data identical or similar to that contained in the other party’s Confidential Information, that:

(a) such party rightfully possessed before it received the information from the other party, as evidenced by written documentation;

(b) subsequently becomes publicly available through no fault of such party.

(c) is subsequently furnished rightfully to such party by a third party (no affiliate of the Client or Port One shall be considered to be a third party) not known to be under restrictions on use or disclosure;

(d) is independently developed by an employee, agent, or contractor of such party; or

(e) is required to be disclosed by legislation or by subpoena or other court order, provided that the party required to so disclose shall promptly (unless such action shall be prohibited by law) notify the other party prior to disclosure and permit that other party to challenge and/or defend against such requirement.

8.5. Nonsolicitation of EmployeesClient will not privately contact, nor solicit, entice or persuade any employee or consultant of Port One to leave the services of Port One for any reason while this Agreement or any Work Order is in effect or for a period of twenty-four (24) months following last date upon which this Agreement or any Work Order is in effect.

8.6. Confidential Personal InformationClient shall not share or collect the personal data of any Port One employees, except as warranted for the purposes of this Agreement or a Work Order

8.7. Remedy.  In the event of any breach of this Section 8, the parties agree that the non-breaching party will suffer irreparable harm and the total amount of monetary damages for any injury to the non-breaching party from any violation of this Section 8 will be impossible to calculate and will therefore be an inadequate remedy.  Accordingly, the parties agree that the non-breaching party shall be entitled to temporary and permanent injunctive relief against the breaching party, its employees, officers, directors, agents, representatives, external or internal auditors, attorneys or independent contractors, in addition to the other rights and remedies to which the non-breaching party may be entitled at law, in equity and under this Agreement, for any violation of this Section 8.  The provisions of this Section 8 shall survive the expiration or termination of this Agreement.

9. Indemnification.

9.1. General.         The Client will indemnify, defend, and hold harmless Port One, its members, managers, officers, employees, agents, and affiliates from and against any loss, damage or cost (including reasonable attorneys fees, court costs, expert witness fees, expenses, and costs of settlement) arising out of any third party claim relating to:  (i) the Client’s use of Software; (ii) any changes made to the Software by or on behalf of the Client; (iii) any claim, investigation, or cause of action initiated by any U.S. governmental entity or regulatory agency arising out of the use of the Software; or (iv) any taxes due with respect to this Agreement or the Client’s provision of services to its customers that the Client is obligated to pay pursuant to Section 4.6 of this Agreement.

10. Representations and Warranties and Disclaimers.

10.1. Port One’s Representations.  Port One represents and warrants that:

(a) It has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder;

(b) It has by proper action duly authorized the execution and delivery of this Agreement and, when executed and delivered, this Agreement shall constitute a legal, valid, and binding Agreement of Port One enforceable in accordance with its terms;

(c) The execution and delivery of this Agreement and the consummation of the transactions herein contemplated do not conflict in any material respect with or constitute a material breach or material default under the terms and conditions of any documents, agreements, or other writings to which it is a party.

10.2. Client’s Representations.  The Client represents and warrants that:

(a) It has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder;

(b) It has by proper action duly authorized the execution and delivery of this Agreement and, when executed and delivered, this Agreement shall constitute a legal, valid, and binding Agreement of the Client enforceable in accordance with its terms;

(c) The execution and delivery of this Agreement and the consummation of the transactions herein contemplated do not conflict in any material respect with or constitute a material breach or material default under the terms and conditions of any documents, agreements or other writings to which it is a party.

11. Limitation on Liability.

11.1. Limitation on Liability.  The cumulative liability of Port One for any loss or damage due to any cause whatsoever shall not under any circumstances exceed the amount paid by the Client to Port One under this Agreement.

11.2. NO CONSEQUENTIAL LOSS.  UNLESS OTHERWISE AGREED TO IN THIS AGREEMENT, PORT ONE SHALL HAVE NO LIABILITY TO THE CLIENT FOR INDIRECT OR OTHER CONSEQUENTIAL LOSSES (INCLUDING WITHOUT LIMITATION LOSS OF BUSINESS, LOSS OF PROFITS, OR EXEMPLARY OR PUNITIVE DAMAGES) WHETHER ARISING FROM NEGLIGENCE, BREACH OF CONTRACT, TORT, BREACH OF STATUTORY DUTY OR OTHERWISE, LIABILITY FOR EACH OF WHICH IS HEREBY EXPRESSLY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR OTHER DAMAGES.

11.3. Survival.  The provisions of this Section 11 shall survive the expiration or termination of this Agreement for any reason whatsoever.

11.4. GENERAL DISCLAIMER OF WARRANTY.  TO THE FULLEST EXTENT PERMITTED BY LAW, PORT ONE SPECIFICALLY DISCLAIMS ALL TERMS, CONDITIONS, WARRANTIES, AND UNDERTAKINGS OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SOFTWARE AND ANY SERVICES ARISING OUT OF OR RELATED TO THIS AGREEMENT (AS OPPOSED TO EXPRESSLY SET OUT WITHIN IT), INCLUDING BUT NOT LIMITED TO THOSE RELATING TO MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, SATISFACTORY QUALITY, AND TIME FOR PERFORMANCE, EACH OF WHICH IS HEREBY EXPRESSLY EXCLUDED BY AGREEMENT OF THE PARTIES.  PORT ONE DOES NOT WARRANT THAT THE SOFTWARE WILL BE ERROR-FREE OR THAT IT WILL MEET LICENSEE’S SPECIFIC NEEDS.  PORT ONE MAKES NO WARRANTY WHATSOEVER REGARDING THE ACCURACY OF THE INFORMATION CONTAINED IN THE SOFTWARE.

11.5. Reasonableness.  Each party expressly agrees that the exclusions and limitations of liability and the disclaimers contained in this Section 11 and in this Agreement are reasonable and appropriate, taking into consideration all circumstances relevant to the entering into and performance of this Agreement.

12. No Partnership/Joint Venture.        Nothing in this Agreement is intended to nor shall it be construed in any way to create a partnership, joint venture, or agency relationship between Port One and the Client.  Neither party shall have the right to act on behalf of the other in respect of any matter that is the subject of this Agreement.

13. Assignment.   Client may not assign or otherwise transfer its rights or obligations under this Agreement except with the written consent of Port One, which may be withheld in Port One’s sole discretion.  Any prohibited assignment shall be null and void.  This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns. 

Port One may assign this Agreement and Work Order to any other party.

14. Waiver and Severability.      The failure of any party to enforce any of the provisions hereof shall not be construed as a waiver of the right of such party thereafter to enforce such provisions.  The terms and conditions stated herein are declared to be severable.  If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable, it shall be enforced to the maximum extent possible.  The validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

15. Notices.           Any notice, demand or other document required or permitted to be delivered hereunder shall be in writing and may be delivered personally or shall be deemed to be delivered:  (a) one (1) calendar day after such notice is faxed to the party at its fax number indicated below, or at such other fax number as may have theretofore been specified in written notice delivered in accordance herewith; or (b) three (3) calendar days after such notice is deposited in the United States mail, postage prepaid, registered or certified mail, return receipt requested or other traceable express mail services such as but not limited to UPS, DHL, Federal Express, addressed to the party at the address indicated below, or at such other address as may have theretofore been specified in written notice delivered in accordance herewith.

If to the Client:

                                               
Attn:                                       
                                               
                                               
                                               

If to Port One:

Port One Internet, Inc.
Attn: Kenneth A. Reiss
President
227 Progress Drive
Manchester, CT 06042

16. Force Majeure and Disaster Recovery.

If the performance of the Software or the performance by either party of any service or obligation under this Agreement (other than the payment of amounts due) is prevented, restricted, delayed or interfered with by reason of any act, omission or occurrence whatsoever, which is beyond the reasonable control of that party, including but not limited to strikes, lockouts or other labor disputes or disturbances (other than strikes, lockouts or other labour disputes or disturbances involving only employees of that party or of its affiliates), acts of God, fire, floods, lightning, severe weather, shortages of materials, rationing, utility or communication failures, failure or delay in any system of electronically transmitting or receiving information or funds, earthquakes, war, revolution, civil commotion, acts of terrorism, acts of public enemies, blockade, embargo, or any law, order, proclamation, regulation, ordinance, demand or requirement (that is extraordinary and unforeseeable and which prevents or materially restricts, delays or interferes with the party’s performance) having legal effect of any government or any judicial authority or representative of any such government, then, that party shall be excused from the performance without liability, to the extent of the prevention, restriction, delay or interference.  If either party is affected by circumstances constituting Force Majeure under this Section 16, that party shall give prompt written notice to the other party and promptly take reasonable steps to overcome such circumstances (if possible), and to mitigate the consequences thereof.

17. Interpretation of this Agreement

(a) The Section and Exhibit headings in this Agreement are solely for convenience and shall not affect its interpretation.

(b) The recitals set forth on the first page of this Agreement are incorporated into the body of this Agreement.

(c) The Exhibits and Work Orders referred to throughout this Agreement will be attached to and incorporated into this Agreement and any reference to this Agreement shall include the Exhibits and Work Orders.

(d) Unless the context clearly indicates otherwise, words used in the singular include the plural, words used in the plural include the singular and the word “including” means “including but not limited to”.

18. Governing Law.        This Agreement will be governed by and construed in accordance with the laws of the State of Connecticut.

19. Entire Agreement; Counterparts.   This Agreement, including all Exhibits and Work Orders, represents the entire agreement of the parties, and supersedes any prior or contemporaneous understandings, whether written or oral.  This Agreement may be executed in two or more counterparts, and each such counterpart shall be deemed an original thereof.  If this Agreement or any Work Order is not signed by Client, Client shall be deemed to have accepted the terms of this Agreement and any Work Order by accessing and using the Software.

20. Modification.    This Agreement may not be amended or modified except as expressly provided herein or in writing by the parties and signed by authorized representatives of the parties.

IN WITNESS WHEREOF, each party hereto has executed or caused this Agreement to be executed on its behalf, on the Effective Date first above stated.