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-1- § 7.15A Form: Vendor Oriented Software License Agreement with Trial Period Option ABC INVESTORS, INC. SOFTWARE LICENSE AGREEMENT AGREEMENT (the "Agreement") made as of the ________ day of ______ (the "Effective Date"), by and between ABC Investors, Inc., with its principal place of business at ____________ ("Licensor"), and XYZ, Inc., with its principal place of business at ____________ ("Licensee") (Licensor and Licensee each being referred to herein as a "Party" and collectively as the "Parties"). TERMS AND CONDITIONS1. LICENSE Subject to the terms and conditions set forth below and so long as Licensee is not in breach of any of the terms of this Agreement, Licensor grants to Licensee, and Licensee agrees to accept, a non- exclusive and non-transferable license (the "License") to use and access ____ copy(ies) of the software specified on Schedule A hereto (the "Software") from a server owned by Licensor and delivered to Licensee hereunder (the "Server") only for Licensee's own internal business purposes at the location specified on Schedule A. The Software will be supplied to Licensee in executable object code form only. Licensor shall not be responsible for providing any documentation. The License shall commence on the Effective Date. 2. SERVER SOFTWARE AND TRIAL OPTION Licensee is solely responsible for acquiring and installing any hardware or software not specified on the first page hereof (the "Equipment") necessary for Licensee to operate the Software. Licensee is also solely responsible for knowing how to properly operate the Software on the Equipment and in the Operating System and with the Server Software (the "Server Software") specified on Schedule A. Licensee acknowledges that this License grants to Licensee the right to examine the Software, Server, and Server Software for a period of ____(____) days from the Effective Date hereof, and upon the expiration of such ______(____) day period, Licensee must either license the Server Software from the manufacturer specified on Schedule A, in which case this License shall continue until terminated, or forthwith return the Software, Serve, Operating System, and Server Software to Licensor. -2- 3. SCOPE OF USE The Software and Server shall be used only by Licensee's employees for Licensee's own internal business purposes and Licensee shall not use the Software or Server to act as a service bureau for, or to process information for, any entity other than Licensee. Licensee shall not delete or permit to be deleted any identifying marks, copyright or proprietary right notices of Licensor from the Software. Licensee shall not translate, decompile, nor create nor attempt to create, by reverse engineering or otherwise, the source code from the object code supplied hereunder, or adapt the Software in any way or use it to create a derivative work. Licensor shall not be responsible for providing any technical support, bug fixes, error corrections, updates, replacements, or conversions of the Software, or for otherwise maintaining the Software. Licensee shall maintain records identifying the specific equipment and location on which the Software has been used and shall make copies of same available to Licensor upon Licensor's request. Under no circumstances shall the Software be the Licensee's exclusive means (whether through its own efforts or aided by others) of accomplishing any process. 4. OTHER RIGHTS AND OBLIGATIONS4.1 Proprietary Rights Licensor retains title in and to the Software and the Server, including, without limitation, all copies thereof and passwords therefor and all rights to patents, copyrights, trademarks, trade secrets and other intellectual property rights inherent therein and/or appurtenant thereto. Licensee shall not, by virtue of this Agreement or otherwise, acquire any proprietary rights whatsoever in the Software or the Server Software hereunder, each thereof being confidential information of Licensor and the sole and exclusive property of Licensor. Any right not expressly granted to Licensee by this Agreement is hereby expressly reserved by Licensor. 4.2 Confidentiality Licensee shall permit access to the Software or the Server Software only by its employees who have a need to know in connection with the license rights granted under this Agreement. Licensee shall not sell, transfer, publish, disclose, display or otherwise make available any portion of the Software to others or permit others to access the Server. Licensee agrees to secure and protect the Software in a manner consistent with the maintenance of Licensor's rights therein, and in -3- accordance with the terms of this Agreement, and to take appropriate action by instruction or agreement with its employees who are permitted access to the Software or the Server to satisfy its obligations hereunder. Licensee shall cooperate with and assist Licensor in identifying and preventing any unauthorized use, copying or disclosure of the Software. Without limitation of the foregoing, Licensee shall advise Licensor immediately in the event Licensee learns or has reason to believe that any person has violated or intends to violate the confidentiality of the software or Server or the proprietary rights of Licensor, and Licensee will, at Licensee's expense, cooperate with Licensor in seeking injunctive or other equitable relief in the name of, at Licensor's sole discretion, either Licensee or Licensor, against any such person. Licensee agrees to maintain the confidentiality of the Software and the Server using the same care as Licensee uses to maintain the confidentiality of Licensee's own most confidential information. Licensee acknowledges that the disclosure of any aspect of the Software, the Server, or any other confidential information referred to herein, or any information which at law or equity ought to remain confidential, will immediately give rise to continuing irreparable injury to Licensor inadequately compensable in damages at law, and Licensor shall be entitled to obtain immediate injunctive relief against the breach or threatened breach of any of the foregoing confidentiality undertakings, in addition to any other legal remedies which may be available and Licensee hereby consents to the obtaining of such injunctive relief.4.3 Non-Confidential Information Notwithstanding the obligations set forth in Paragraph 4.2, the confidentiality obligations of the Parties shall not extend to information that: (i) is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving Party; (ii) was known to the receiving Party as of the time of its disclosure and such knowledge can be proven by documentation; (iii) is independently developed by the receiving Party; (iv) is subsequently learned from a third Party not under a confidentiality obligation to the providing Party; or (v) is required to be disclosed pursuant to court order, subpoena, or government authority, but the receiving Party shall provide notice to the other Party immediately upon service of the order, subpoena or other governmental order and prior to such disclosure. -4- 4.4 Licensee Indemnification of Licensor Licensee will, at its own expense, indemnify and promptly reimburse Licensor for the defense of, and hold harmless Licensor and its officers and employees, from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs and expenses (including attorneys' fees) resulting from or pertaining to the use or operation of the Software. 4.5 No Fiduciary Duty IT IS UNDERSTOOD THAT LICENSEE MAY ENTER INTO DERIVATIVE TRANSACTIONS WITH LICENSOR. NEITHER LICENSOR'S SUPPLYING TO LICENSEE THE LICENSE, THE SOFTWARE, THE SERVER SOFTWARE AND/OR ANY DATA RELATING THERETO OR FOR USE THEREWITH, NOR LICENSOR'S RECEIPT FROM LICENSEE OF ANY INFORMATION ABOUT LICENSEE, SHALL CAUSE LICENSOR TO BE DEEMED LICENSEE'S FIDUCIARY OR ADVISOR. 4.6 Disclaimer of Warranty THE SOFTWARE AND THE SOFTWARE SERVER ARE PROVIDED TO LICENSEE "AS IS." LICENSOR EXPRESSLY DISCLAIMS, AND LICENSEE HEREBY EXPRESSLY WAIVES, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES AS TO ANY RESULTS TO BE OBTAINED FROM ANY USE OF THE SOFTWARE OR THE SERVER SOFTWARE OR INFORMATION DERIVED THEREFROM. 4.7 Third-Party Software and Equipment The Parties understand that Licensee may use certain third-party software or equipment in conjunction with the Software and Server Software. LICENSOR MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO THE QUALITY, CAPABILITIES, OPERATIONS, PERFORMANCE OR SUITABILITY OF THE THIRD-PARTY SOFTWARE OR EQUIPMENT, INCLUDING THE ABILITY TO INTEGRATE SAME WITH THE SOFTWARE OR THE SERVER. THE QUALITY, CAPABILITIES, OPERATIONS, PERFORMANCE AND SUITABILITY OF THE THIRD-PARTY SOFTWARE OR EQUIPMENT LIE SOLELY WITH LICENSEE AND THE -5- VENDOR OR SUPPLIER OF SUCH THIRD-PART SOFTWARE OR EQUIPMENT, AS THE CASE MAY BE.5. LIMITATION OF LIABILITY LICENSOR SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS. BOTH PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES, EXCLUSIONS AND LIMITATIONS HEREIN ALLOCATE THE RISKS OF PRODUCT AND SERVICE NONCONFORMITY BETWEEN THE PARTIES AS AUTHORIZED BY THE UNIFORM COMMERCIAL CODE AND/OR OTHER APPLICABLE LAWS. THE ROYALTY-FREE LICENSE HEREIN REFLECTS, AND IS SET IN RELIANCE UPON, THIS ALLOCATION OF RISK AND THE EXCLUSION OF CONSEQUENTIAL DAMAGES AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT. 6. TERMINATION Unless earlier terminated by Licensor as herein provided, this agreement shall continue in full force and effect for a period of 1 (one) year from the Effective Date, and the term shall be automatically renewed for additional successive 1 (one) year periods unless either party gives the other written notice of termination not less than 30 (thirty) days prior to the expiration of its initial or any renewal term (as the case may be). However, in addition to any other express rights of Licensor to terminate this Agreement set forth herein, Licensor shall also have the right, in its sole discretion, to terminate this Agreement immediately by written notice to Licensee. The termination of this Agreement shall automatically, and without further action by Licensor, terminate and extinguish the License. Within _______ (____) days after the termination of this Agreement, Licensee shall return the Software and Server Software, disable any means Licensee may have of accessing the Software or the Server and certify the completion of such steps in writing to Licensor. Not later than the 10th (tenth) day of each calendar month during the term hereof Licensee shall pay Licensor the monthly fee for that -6- month specified on Schedule A, except that the fee for any calendar month or months during the term hereof will be prorated if the agreement is not in effect for that entire month.7. MISCELLANEOUS7.1 Entire Agreement This Agreement, evidences the complete understanding and agreement of the Parties with respect to the subject matter hereof and supersedes and merges all previous proposals of sale, communications, representations, understandings and agreements, whether oral or written, between the Parties with respect to the subject matter hereof. This Agreement may not be modified except by a writing subscribed to by authorized representatives of both Parties. 7.2 Governing Law This Agreement and performance hereunder shall be governed by the laws of the State of __________, without giving effect to the principles of conflict of laws of such state. Licensor and Licensee hereby agree on behalf of themselves that the sole and exclusive jurisdiction and venue for any litigation arising from or relating to this Agreement or the subject matter hereof shall be an appropriate federal or state court in the State of __________ located in __________ County. 7.3 Assignment Licensee may not assign, without the prior written consent of Licensor, Licensee's rights, duties or obligations under this Agreement to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise, and any attempt to do so shall be deemed void. Licensor may assign this Agreement. This Agreement shall apply to, inure to the benefit of, and be binding upon the Parties hereto and upon their permitted successors and assigns. 7.4 Notice Any notice provided pursuant to this Agreement, if specified to be in writing, shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if mailed, ______ (____) days after deposit in the U.S. mails, postage prepaid, certified mail return receipt requested. All notices shall be addressed to the Parties at their addresses set forth on Schedule A. 7.5 Survival -7- All provisions of this Agreement relating to Licensor's proprietary rights, disclaimers, and limits of liability or duty, confidentiality, non- disclosure, Licensee's actions upon termination, payment of fees by Licensee, or indemnification by Licensee shall survive expiration or the termination of this Agreement for any reason. 7.6 Licensee Identification Licensor, upon written consent of Licensee, which shall not be unreasonably withheld, may use the name of and identify Licensee as a client, in advertising, publicity, or similar materials distributed to prospective clients. 7.7 No Waiver The waiver or failure of either Party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder. 7.8 Enforceability If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the remainder of this Agreement shall continue in full force and effect. 7.9 Remedies Unless otherwise specified herein, the rights and remedies of both Parties set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to them at law or in equity. 7.10 Counterparts This Agreement may be executed in counterparts, all of which shall constitute one single agreement between the Parties hereto. 7.11 Taxes Licensee shall pay all applicable sales, use, transfer or other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the transaction(s) contemplated hereby, excluding, however, income taxes that may be levied against Licensor. Licensee shall reimburse Licensor for the amount of any such taxes or duties paid or accrued directly by Licensor as a result of this transaction. -8- IN WITNESS WHEREOF, AND INTENDING TO BE LEGALLY BOUND HEREBY, THE PARTIES HAVE DULY EXECUTED THIS AGREEMENT. XYZ, INC. ABC INVESTORS, INC. By:________________________ By:___________________ Name:_____________________ Name:_________________ Title:______________________ Title:__________________ Date:______________________ Date:__________________