SOFTWARE LICENSE AGREEMENT

 

USE OF SOFTWARE ORDERED FROM TRADITIONAL TITLE SERVICES, INC. ("LICENSOR") IS PROVIDED ONLY UNDER LICENSE FROM LICENSOR AS DESCRIBED IN THIS AGREEMENT.  PLEASE READ THE FOLLOWING AGREEMENT CAREFULLY AND INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT BY CLICKING THE ACCEPTANCE BOX BELOW.  BY CLICKING ON THIS BUTTON, YOU, FOR YOURSELF AND ON BEHALF OF THE CLIENT, ACCEPT THE TERMS AND CONDITIONS SET FORTH HEREIN AND REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON CLIENT'S BEHALF.

 

1.             GRANT OF LICENSE.  Subject to Licensee's compliance with the terms and conditions set forth in this Agreement, Licensor grants to Licensee and Licensee accepts, a nontransferable, nonexclusive, limited right and license to Use (as hereinafter defined) the object code form of Licensor's software that is known as ClosingLink and shall include all bug fixes, updates and upgrades thereto furnished by Licensor to Licensee (the "Software").  The term "Use" means accessing the server on which the Software resides via the Internet for the purpose of (i) executing any portion of the Software, or (ii) obtaining, preparing or downloading information, data or reports created through the execution of any Software. 

 

2.             USE OF THE PRODUCT.

 

2.1.          Restrictions on Use.  The license granted by Licensor to Licensee to use the Software is subject to the following restrictions: (a) The Software may be used only by Licensee for its internal business purposes and only for the direct benefit of Licensee; (b) Licensee shall use the Software only in its original form, and shall not modify, reverse compile, reverse engineer, disassemble, or translate the Software, nor shall Licensee create any derivative works or otherwise use the Software except as specifically permitted in this Agreement; and (c) Licensee shall not rent, lease, sublicense, allow access to, or transfer the Software to any other party, by operation of law or otherwise.  Further, the maximum permissible number of Uses of the Software, at any moment in time, is limited to the number of named users that are employees of Licensee and that have registered with Licensor and received passwords and accounts from Licensor.  Licensor may request a list of such named users from time to time.  Once a user is no longer an employee of Licensee, such user's rights to use the Software shall immediately cease and it is Licensee's responsibility to notify Licensor that such employee is no longer employed by Licensee and to ensure that former employee no longer utilizes or has access to the Software.

 

2.2.          Security Devices.  Upon delivery of access to the Software, Licensor will provide to Licensee one or more passwords for each named user of the Software, which devices will enable the Software to be accessed by Licensee.  Licensee agrees not to employ any methods or devices to allow Use of the Software by more than the number of named users licensed herein. 

 

2.3.          Proprietary Rights.  The Software is copyrighted material under the laws of the United States and international treaty provisions.  Notwithstanding the copyright, the Software contains trade secrets and confidential information of Licensor.  No other copies may be made of the Software or any part thereof.

 

2.4.          Protection of Software.  The Software and all copies of them, regardless of the form or media in which the original or copies may exist, are the sole and exclusive property of Licensor. The Software, including the source and object codes, logic and structure, constitutes valuable trade secrets of Licensor.  Except as expressly permitted herein, Licensee agrees not to disclose or otherwise make available any part of the Software to any third party on any basis. Licensee agrees to secure and protect the Software consistent with the maintenance of Licensor's rights in the Software, as set forth in this Agreement.  By accepting the license set forth in this Agreement, Licensee does not become the owner of the Software; Licensor retains all right, title and interest in and to the Software.

 

2.6.          Survival of Section.  This Section 2 shall survive any termination of this Agreement.

 

3.             LICENSEE OBLIGATIONS. 

               

3.1           Internet Access.  Licensee shall be responsible for any communication link, internet access, and any hardware and software at Licensee's offices, necessary for Licensee to access the server on which the Software resides.

 

3.2.          Licensee Account, Password And Security.   Licensee will receive password and account designations upon completing Licensor's registration process. Licensee shall be responsible for maintaining the confidentiality of such password and account designations, and fully responsible for all activities that occur under Licensee's password and account designations. Licensee agrees to (a) immediately notify Licensor of any unauthorized use of Licensee's password or account designation or any other breach of security, and (b) ensure that Licensee' employees exit from Licensee's account at the end of each session. Licensor cannot and will not be liable for any loss or damage arising from Licensee's failure to comply with this section.

 

3.3.          License.  Licensee grants to Licensor, and Licensor accepts, the following nonexclusive and nontransferable right and limited license, to: exhibit, publish, transmit, copy, prepare derivative works from, distribute, perform, display, use and transmit via the Internet any Licensee Content in connection with Licensee's Use of the Software.  Licensee shall provide such Licensee Content to Licensor in a form that is mutually agreeable to the parties.  "Licensee Content" means any documents, materials, customer, client or other information pertaining to a third party or a property that is being purchased, sold, closed or financed by Licensee or Licensee's customers.

 

3.4.          Representations.  Licensee represents, warrants and covenants to Licensor that: (i) Licensee has and will continue to have the power and authority to enter into and perform its obligations under this Agreement; (ii) Licensee Content does not and shall not contain any content, materials, link, advertising or services that actually or potentially violate any applicable law or regulation or infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person; (iii) Licensee owns or has and will continue to own or have the legal right to use in the manner contemplated by this Agreement the Licensee Content and all proprietary or intellectual property rights therein; and (iv) Licensee shall comply with all applicable laws and regulations.

 

3.5.          Indemnity.  At Licensee's expense, Licensee agrees to indemnify, defend and hold Licensor, and its subsidiaries, affiliates, officers, agents and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Licensee's Use of the Software, any Licensee Content that Licensee provides or utilizes with or through the Software, Licensee's connection to the server, Licensee's violation of the terms of this Agreement, Licensee's violation of any rights of another or Licensee's failure to comply or violation of any applicable law or regulation.

 

4.             TERM OF AGREEMENT.

 

4.1.          Term and Termination.  This Agreement commences on the date Licensee accepts this Agreement and shall remain in effect until terminated.  Licensee may terminate this Agreement:  (a) at any time without cause upon written notice to Licensor or (b) thirty (30) days after written notice to Licensor in the event that Licensor breaches any provision of this Agreement and has not cured such breach within the thirty (30) day period.  This Agreement shall terminate (i) immediately upon notice from Licensor if Licensee breaches any of the terms or conditions of Sections 2.1, 2.3 or 2.4 hereof, (ii) upon the breach of any other provision of this Agreement upon thirty (30) days prior written notice to Licensee from Licensor which specifies the breach, provided that Licensee has not cured the breach within such thirty (30) day period, or (iii) immediately upon the failure of Licensee to purchase title search services from Licensor.

 

4.2.          Actions to be Taken Upon Termination.  Upon termination, Licensee shall immediately discontinue use of and return all complete or partial copies of the Software, in whatever form or media, and shall delete the Software from its computer libraries.

 

4.3.          Effect of Termination.  Termination of this Agreement by Licensor for Licensee's breach shall not bar Licensor from seeking any other remedy it may have available against Licensee for breach of this Agreement.

 

5.             DISCLAIMERS.  THE USE OF THE SOFTWARE AND SERVICES ARE PROVIDED ON AN "AS IS" BASIS, WITH NO WARRANTIES OF ANY KIND OR NATURE.  LICENSOR MAKES NO WARRANTY THAT (i) THE SOFTWARE, THE SERVICES OR ANY MATERIALS OR INFORMATION PROVIDED HEREUNDER WILL MEET LICENSEE'S REQUIREMENTS, (ii) THE USE OF THE SOFTWARE, THE SERVICES OR ANY MATERIALS OR INFORMATION PROVIDED HEREUNDER WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE , THE SERVICES OR ANY MATERIALS OR INFORMATION PROVIDED HEREUNDER WILL BE ACCURATE OR RELIABLE, OR (iv) ANY ERRORS IN THE SOFTWARE, THE SERVICES OR ANY MATERIALS OR INFORMATION PROVIDED HEREUNDER WILL BE CORRECTED. LICENSOR DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE, SERVICES AND ANY MATERIALS OR INFORMATION PROVIDED HEREUNDER, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.  LICENSOR DOES NOT WARRANT THAT THE SOFTWARE OR SERVICES SHALL OPERATE WITH ANY HARDWARE OR SOFTWARE.

 

6.             LIMITATION OF LIABILITY.  IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY LOSS OF OR DAMAGE TO REVENUES, PROFITS OR GOODWILL OR OTHER SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, RESULTING FROM ITS PERFORMANCE OR FAILURE TO PERFORM PURSUANT TO THE TERMS OF THIS AGREEMENT, OR RESULTING FROM THE FURNISHING, PERFORMANCE, OR USE OR LOSS OF ANY SOFTWARE, SERVICES OR OTHER MATERIALS DELIVERED TO LICENSEE HEREUNDER, INCLUDING WITHOUT LIMITATION ANY INTERRUPTION OF BUSINESS, WHETHER RESULTING FROM BREACH OF CONTRACT OR BREACH OF WARRANTY OR OTHERWISE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  Notwithstanding anything herein to the contrary, the maximum aggregate amount of money damages for which Licensor may be liable to Licensee under this Agreement, resulting from any cause whatsoever, shall be limited to $1,000.

 

7.             SUPPORT.  Licensor will provide reasonable telephone consultation and assistance to Licensee to assist in addressing problems with the operation of the Software during Licensor's standard business hours during the workweek.  Licensee may also submit questions or problems to Licensor via electronic mail. 

 

8.             MISCELLANEOUS PROVISIONS.

 

8.1.          Assignment.  Neither this Agreement nor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by Licensee by operation of law or otherwise, and any purported assignment or transfer shall be null and void.

 

8.2.          Independent Contractors.  Licensor and Licensee are contractors independent of one another and neither party's employees, independent contractors or agents will be considered employees of the other party for any purpose.  This Agreement does not create a joint venture or partnership, and neither party has the authority to bind the other to any third party.

 

8.3.          Severability.  If any term or provision of this Agreement shall be found to be illegal or unenforceable, then, notwithstanding, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this Agreement will not be affected.  IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY OR LIMITED WARRANTY IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND TO BE ENFORCED AS SUCH.

 

8.4.          Breach.  No consent by either party to, or waiver of, a breach of this Agreement by the other party, whether express or implied, shall constitute a consent to, waiver of, or excuse for any other different, continuing, or subsequent breach.

 

8.5.          Audit Rights.  Upon reasonable prior notice, Licensor shall have the right to audit Licensee's use of the Software to ensure Licensee's compliance with the terms and conditions of this Agreement.

 

8.6.          Entire Agreement.  This Agreement constitute the entire agreement between the parties concerning the Software and supersede all prior agreements, whether written or verbal, between the parties.  No purchase order, other ordering document or any other document which purports to modify or supplement this Agreement shall add to or vary the terms and conditions of this Agreement unless executed by both Licensor and Licensee.

 

8.7.          Governing Law.  The parties agree that this Agreement shall be governed and construed by the laws of the State of Georgia.

 

8.8.          Notices. Any notice and/or documents required or permitted to be submitted by either party to the other under this Agreement shall be in writing to the party's respective addresses set forth on the first page of this Agreement, or to any other address as either party may designate by giving a written notice to the others, and be deemed effectively delivered: (a) if delivered personally, upon the date of delivery; (b) if delivered by registered mail, within 5 business days from the dispatch thereof; (c) if delivered by facsimile, one (1) business day after the dispatch thereof and upon facsimile transmission confirmation; or (d) if delivered by an overnight delivery service, one (1) business day after dispatch thereof.

 

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