10.20 Age Verification Software License Agreement
THIS AGREEMENT made this ___ day of _____ 20__ (the "Effective Date") by and
between Vendor, a _____ with a place of business at __________________
("Vendor") and _________Inc., a _____ corporation with its primary office at
___________ ("Licensee").
WHEREAS, Licensee, among its other activities, is a vendor of online age
verification services to its customers ("Customers") for their use in connection
with their web sites;
WHEREAS, Vendor is ______ who has developed an online age verification software
product labeled [product name]; and
WHEREAS, Licensee desires to license from Vendor, and Vendor desires to license
to Licensee, Licensor's online age verification software product on the terms
and subject to the conditions set forth below.
NOWTHEREFOR, In consideration of the mutual promises set forth herein, Licensee
and Vendor hereby agree as follows:
1. SOFTWARE LICENSE1.1 License. Vendor hereby grants to Licensee a worldwide, enterprise-
wide, irrevocable (subject to Section 1.2), exclusive (subject to Section 1.3)
license (the "License"), during the Term (as defined in Section 1.6), to use the
programs supplied hereunder (the "Program") and other materials related thereto
(the "Documentation", which collectively with the Program is referred to herein
as the "Software"), on Licensee's Web site(s) (each, a "Licensee Site") solely
within the AVS Market (as defined in Section 1.3) for the purpose of making age
verification services using the Program available to its Customers who have
signed (whether by written signature or by electronic acceptance means) an
agreement having substantially the disclaimer set forth in Section 5.6 (each, a
"Customer Sublicense Agreement"). Licensee may grant a limited, non-exclusive
sublicense of the License to its Customers to use the Software through a
Licensee Site, pursuant to a Customer Sublicense Agreement. The Customer
Sublicense Agreement shall notify Customers of an absolute prohibition on their
reselling or sub-licensing the Software or the Documentation to third parties. Vendor also provides a limited, non-exclusive right to utilize the
trademark in conjunction with its use of the Software, during the term of this
agreement. For the avoidance of doubt, nothing in this Agreement shall obligate
Licensee to use the Software, and Licensee shall have the right to terminate
this Agreement for any reason or no reason upon thirty (30) days written notice
to Vendor. In the event of such termination for no cause prior to the expiration
of the term stated in Section 1.6, no fees paid by Licensor to Vendor under this
agreement shall be returned.
1.2 Limitations on License and Transfer of Intellectual Property. No right
or license is being conveyed by Vendor to use the Software or the Documentation
at any location or in any medium other than as described in Section 1.1.
Licensee shall not resell the Software, however Licensee may sub-license the
Software to its Customers in accordance with Section 1.1, whether or not a fee
is charged for such sub-license. Licensee agrees to provide Licensor proper
accreditation as the creator of the Software and author of the Documentation, as
designated by the Vendor, subject to Licensee's approval. Other than provided
above, Vendor retains all other rights to, and interest in, the Software and the
Documentation. Nothing contained herein shall constitute a waiver of any such
rights. Upon termination of this agreement, all rights conveyed herein shall
revert to Vendor, as limited by any "wind down" period rights exercised by
Licensee pursuant to Section 8. 1.3 AVS Market Exclusivity. The term, "AVS Market" means the market for
providing online age verification services to third parties for the purpose of
providing user access to such third parties' web sites. Without limitation of
the foregoing, Vendor shall retain the right to grant licenses in the Software
outside of the AVS Market, meaning that Vendor shall have the right to license,
and provide services to other entities using the Software and the Documentation
solely for such entities' use on their own web sites (such entities referred to
herein as "Web Masters"), for their internal use only, where such Web Masters
are not authorized to use the Licensed Software for third parties (other than
the end users of their web sites), or to enable third parties (other than the
end users of their web sites) to use the Licensed Software.
1.4 The Program. The Program will consist of the software set forth on
Schedule A, including but not limited to any Updates and Error corrections
provided pursuant to Section 6 as well as a fully commented and documented copy
of the source code form of such software and all relevant commentary, including
explanation, flow charts, algorithms and subroutine descriptions, memory and
overlay maps and other documentation of the source code. Licensee will have the
right to make additional copies of the Program as necessary for use in
accordance with the License.
1.5 Documentation. The Documentation will consist of the Warning Page
language described in Section 5.3, any and all operator's and user's manuals,
training materials, guides, commentary, listings and other materials for use in
conjunction with the Program, including but not limited to that as set forth in
Schedule A. Vendor is required to deliver to Licensee, upon request, copies of
said Documentation. Licensee will have the right to make as many additional
copies of the Documentation as it may deem necessary for use in accordance with
the License.
1.6 Term. The term of this Agreement (the "Term") shall commence on the
Effective Date and end six (6) months thereafter. At the end of the Term,
Licensee shall have the right of first refusal to extend the Term, pursuant to
mutually agreeable terms and conditions (including, without limitation, price).
Vendor shall notify Licensee in writing of Licensee's opportunity to negotiate
an extension of this agreement pursuant to this Section 1.6 at least thirty (30)
days prior to the expiration thereof. The parties shall then have an opportunity
to negotiate such extension until the expiration of this agreement, (exclusive
of any wind down period contained in Section 8).
1.7. Termination and Expiration. In the event that a mutually acceptable
extension is not agreed upon by the expiration of this agreement, all rights to
the Software and the Documentation shall revert to the Vendor, and Licensee
shall discontinue all use of the Software and the Documentation subject to
Section 8. Either Party may terminate this agreement based on a material breach
by the other party, in the event that the breaching party fails to cure the
breach within thirty (30) days of receipt of written notice thereof. In the
event of a breach by the Licensee of its payment obligations hereunder, which
breach remains uncured for thirty (30) days following Licensee's receipt of
written notice from Vendor thereof, Vendor shall have the right to terminate
this Agreement by written notice to Licensee, in which event all rights to the
Software and the Documentation shall automatically revert to Vendor without
further legal process, and Licensee shall cease using, displaying, promoting or
accessing the Software or the Documentation. The "wind down" rights shall not
apply in the event of termination by Vendor pursuant to this Section 1.7 as a
result of material breach by Licensee of its obligations under this Agreement.
No provision in this Section shall limit the legal rights or remedies of either party. 1.8 Section 365 (n). All rights and licenses granted under or pursuant to
this Agreement by Vendor to Licensee are, and shall otherwise be deemed to be,
for purposes of Section 365 (n) of the United States Bankruptcy Code (the
"Code"), licenses to rights to "intellectual property" as defined under the
Code. The parties agree that Licensee, as licensee of such rights under this
Agreement, shall retain and may fully exercise all of its rights and elections
under the Code.
2. ENVIRONMENT
2.1 Operating Environment. Vendor represents and warrants that the list
set forth on Schedule B contains all of the third party hardware, software and
other products composing the environment that will be necessary and appropriate
for Licensee to host and operate the Programs fully and correctly in accordance
with the Specifications (as defined in Section 5.4 ) (the "Licensee-Provided
Third Party Products"), with the sole exception of any such third party products
that Vendor will provide under this Agreement (considered a subset of the
Software, included in the fees expressly set forth on Schedule A, the "Vendor-
Provided Third Party Products"). The Licensee-Provided Third Party Products and
the Vendor-Provided Third Party Products shall be referred to together in this
Agreement as the "Third Party Products." The Third Party Products together with
the Software shall be referred to together in this Agreement as the
"Environment." Vendor represents and warrants that the Programs will be capable
of operating fully and correctly with the Third Party Products, and that no
other products are necessary for the Programs to function fully and correctly in
accordance with the Specifications. If any Third Party Product is no longer
available or supported, Vendor shall promptly and at its sole cost make such
modifications to the Software so as to provide Licensee with uninterrupted
functionality of the Software as described in this Agreement.
2.2 Third Party Rights. Vendor will obtain and maintain, in writing, at no
additional expense to Licensee, all third party licenses, rights, consents,
permissions and approvals, for Licensee's benefit and subject to Licensee's
written approval in each instance, as are necessary or appropriate in connection
with Licensee's receipt and use of the Vendor-Provided Third Party Products.
Vendor shall, at its sole expense, assign to Licensee any and all warranties,
guarantees, representations, indemnities and source code escrow rights, if any,
with respect to any Vendor-Provided Third Party Products, to the extent that
such assignment is permitted. To the extent such warranties, guarantees,
representations, indemnities and source code escrow rights are not assignable by
Vendor, Vendor agrees that Licensee may assert or enforce any right that Vendor
may have to enforce such warranties, guarantees, representations, indemnities
and source code escrow rights, or if such can only be asserted or enforced by
Vendor and in its own name, upon Licensee's request and at Licensee's sole
expense, Vendor shall take all reasonable action requested by Licensee to assert
and enforce such warranties, representations, indemnities and source code escrow
rights to Licensee's benefit.
3. CUSTOMIZATIONS
If Licensee so requests, Vendor shall customize or enhance the Software to
meet Licensee's needs at rates no higher than the professional services rates
set forth on Schedule A or, at Licensee's option, at other mutually agreeable
rates or at a mutually agreeable fixed price. The terms and conditions for such
customization and/or enhancement services shall be set forth in a separate
mutually agreed-upon services agreement.
4. DELIVERY, INSTALLATION AND ACCEPTANCE
4.1 Delivery and Installation. Within the time frames set forth on
Schedule A, Vendor cause all Software to be delivered to Licensee for Licensee's
installation in the Environment. Upon Licensee's request, Vendor shall provide
reasonable assistance to Licensee in its installation and implementation of the Software.
4.2 Acceptance. Upon installation of the Software, Licensee shall test and
evaluate the Software to determine whether it materially conforms to the
Specifications. If Licensee determines in its reasonable judgment that the
Software does not pass such acceptance testing criteria, Licensee shall notify
Vendor in writing that it is rejecting such Software, specifying the alleged
deficiencies in reasonable detail. Within ten (10) business days of Licensee's
rejection notice to Vendor, and at no charge, Vendor shall correct any such
deficiencies and shall resubmit such Software to Licensee, and Licensee shall
then re-evaluate such Software to determine whether the resubmitted Software
satisfies such acceptance testing criteria ("Correction Process"). If Vendor
does not, in Licensee's reasonable judgment, remedy the deficiency, Licensee may
elect either to allow Vendor to repeat the Correction Process until Licensee
accepts the Software, or Licensee may at any time, without limitation of its
rights and remedies at law and in equity, terminate this Agreement with Licensee
having no further liability or obligation, in which event Vendor shall
immediately refund all sums paid by Licensee to Vendor under this Agreement.
Upon accepting the Software, Licensee shall provide a written notice of
acceptance to Vendor ("Acceptance"). All Licensee's payment obligations under
this Agreement shall be subject to Licensee's Acceptance of the Software, and
shall be refunded by Vendor in the event of Licensee's termination of this
Agreement pursuant to this Section 4.2.
5. WARRANTIES
Vendor hereby warrants and represents to Licensee as follows:
5.1 Authority; Non-Infringement. Vendor has full rights and authority to
execute, deliver and perform its obligations under this Agreement, is the owner
of the Software or otherwise has the right to grant to Licensee the licenses
hereunder without violating any rights of any third party, and there is
currently no actual or threatened suit by any third party based on an alleged
violation of any such right by Vendor; neither the Software, nor Licensee's use
thereof pursuant to the terms of this Agreement, infringes, misappropriates or
violates, or shall infringe, misappropriate or violate, any third party
intellectual property, proprietary or contractual right;
5.2 Services. The services provided by or on behalf of Vendor hereunder
will be performed in a competent, professional and workmanlike manner using
fully qualified personnel, consistent with the highest industry standards;
5.3 Warning Page. Vendor is the author of the Warning Page language, a
sample of which has been deposited with the U.S. Copyright Office.
5.4 Software. The Software shall, at all times: (i) be free from defects
in material and workmanship under normal use and remain in good working order,
and (ii) function properly and in conformity with this Agreement and with the
descriptions and specifications set forth in the Documentation (collectively,
the "Specifications"); and
5.5 Virus. The Programs shall be free of viruses, worms, logic bombs,
Trojan horses, or similar malicious instructions, techniques, or devices capable
of disrupting, erasing, disabling, damaging, or shutting down a computer system
or software or hardware component thereof, and the Programs do not and will not
contain any computer code that would automatically disable the Programs or
Environment, or impair, or enable Vendor to impair, in any way the operation
thereof based on the elapsing of a period of time, exceeding an authorized
number of copies or users, advancements to a particular date or other numeral,
or other similar self-destruct mechanisms (sometimes referred to as "time
bombs", "time locks", "locking devices" or "drop dead devices") or that would
permit Vendor to access the Programs to cause such disablement or impairment
(sometimes referred to as a "trap door" or "back door" device).
5.6 Legal Age Verification. Licensee acknowledges and agrees that Vendor
does not represent or warrant that use of the Software to verify the age of
individuals complies with any law that requires age verification or under which
an individual's age is a relevant factor. Licensee further acknowledges and
agrees that Vendor also does not warrant any particular legal result will be
obtained by use of the Software. Licensee or its Customers shall be fully
responsible for any risk involved in using the Software to comply with any
applicable law.
6. SUPPORT
6.1 Support. Vendor shall maintain the Software in good working order,
keep it free from defects in material and workmanship, and remedy any failure of
the Software to perform in accordance with this Agreement, including the
warranties set forth herein, or which impairs Licensee's use thereof, or any
other malfunction, defect or non-conformity in the Software, so long as such
failure is not caused by misuse of the Software or an interaction between the
Software and Licensee's own proprietary software or systems. Vendor shall work
diligently and continuously to resolve, as soon as practicable, any error in the
Software that materially impacts Licensee's business or its services to its
Customers and/or end users.
6.2 Updates. Vendor shall deliver to Licensee, in a timely manner as they
are released by Vendor, any and all Software modifications, enhancements,
repairs, error and bug fixes, patches, new versions, new releases, upgrades and
updates to the Software which Vendor releases (collectively, "Updates"). For
each Update, Vendor warrants and represents that the Update shall be cross-
compatible with prior versions of the Software and the Third Party Products and
that the installation of such Update shall not give rise to any additional costs
or adversely affect the Software performance as warranted herein. Licensee shall
have the right to refuse to utilize any Update, and such refusal shall not
relieve Vendor of its obligations for support, warranty and maintenance of the
Software.
6.3 Support. Vendor, or its agents, technicians or contractors, shall
provide to Licensee, without additional charge, all reasonably necessary
training, telephone or written consultation requested by Licensee in connection
with its use and operation of the Software or any problems therewith.
7. FEES AND PAYMENTThe fees for the licenses and services under this Agreement shall be as
set forth in Schedule A. Payment terms are as follows:
The initial $____________payment shall be made upon Licensee's Acceptance
of the Software. The first monthly fee of $_________ shall also be tendered upon
Acceptance of the Software. Subsequent monthly payments shall be made each month
thereafter. All payments shall be due within thirty (30) days of Licensee's
receipt of a valid, undisputed invoice. A ten (10) day grace period will be
provided in connection with each monthly due date.
Vendor represents and warrants that the fees set forth on Schedule A
represent all of the fees that will be payable by Licensee under this Agreement.
8. TRANSITION
In any event of termination or expiration of this Agreement or the
License, Licensee shall have the right, as necessary in Licensee's discretion,
to continue to exercise its rights hereunder for a wind-down period of three (3)
months after the date of such termination, such that such termination and
transition to an alternative product shall be orderly, efficient and seamless
and, to the extent possible, have no impact on Licensee's Customers or end
users. In the event that Licensee chooses to exercise its rights to the wind
down period, the monthly license fee shall continue to be paid on the same
schedule, with the license fee for the final month being pro rated for the
actual number of days the Software is used by Licensee during the final month.
9. INDEMNITY
9.1. Indemnification. Vendor agrees, at its own expense, to indemnify,
hold harmless and defend Licensee and its Affiliates (as defined in Section 9.3)
and each of their present and future partners, officers, principals, directors,
shareholders, members, employees, contractors and agents (collectively, the
"Indemnified Parties") from and against any and all claims, causes of action,
demands and actions (collectively, "Claims") and any and all liabilities,
losses, debts, damages, penalties, costs and expenses (including, but not
limited to, reasonable attorneys' fees) arising out of, resulting from, or
related to: (a) any claim that the Software, or the use of the Software in the
Environment, infringes, misappropriates or violates any patent, copyright, trade
secret right, trademark, trade name or service mark right or any other
intellectual property or proprietary right of a third party (an "Infringement"),
(b) a breach of any representation, warranty, or covenant of Vendor under this
Agreement, (c) a breach of Vendor's confidentiality obligations under this
Agreement, (d) the gross negligence, willful misconduct, fraud or other unlawful
act or failure to act by Vendor or any employee, agent or contractor of Vendor,
or (e) personal injury or death or damage to property arising out of the fault
or negligence of Vendor or any employee, agent or contractor of Vendor. Licensee
shall give Vendor prompt notice of any such claim and Licensee shall allow
Vendor to control the defense of such action and shall provide reasonable
assistance in its defense, at Vendor's expense, with counsel designated by
Vendor. The Indemnified Parties shall also have the right to participate in the
defense hereunder at their own expense (provided that if counsel is employed by
an Indemnified Party due to a conflict of interest or because Vendor does not
assume control of the defense, Vendor will bear such expense), with counsel of
its choosing. No failure to notify Vendor of a claim shall relieve Vendor of its
obligations under this Section 9 except to the extent, if any, that Vendor is
materially prejudiced by such failure. Any disposition or settlement that
imposes any liability on or affects any right or interest of an Indemnified
Party will require the Indemnified Party's prior written consent. Vendor's
obligations shall include, without limitation, the obligation to compensate the
Indemnified Parties for their costs and expenses incurred in enforcing their
rights to have Vendor perform Vendor's indemnification obligations under this
Section 9.9.2. Infringement. If the Software is held to constitute an Infringement
or its use is enjoined, or likely to be enjoined, or it becomes or, in the
opinion of Vendor, is likely to become, the subject of a claim of Infringement,
Vendor shall, at its sole expense, use its best commercial efforts to procure
for Licensee the right to continue using the Software as set forth in this
Agreement, or replace or modify the Software to make it non-infringing with
equivalent functionality and features, and in accordance with its warranties. If
neither of the foregoing alternatives is reasonably available to Vendor after
using its best commercial efforts, then Vendor shall accept the return of the
Software and refund all sums paid by Licensee to Vendor under this Agreement, on
a pro rata basis, and compensate Licensee for any fees due or paid by Licensee
for any Licensee-Provided Third Party Products.
9.3. Affiliates. Licensee's "Affiliates" shall mean any other entity as to
which Licensee directly or indirectly possesses the power to direct or cause the
direction of such entity's management and policies, whether through the
ownership of voting securities, by contract, management agreement or otherwise.
10. CONFIDENTIALITY
10.1 Confidential Information. Each party agrees to hold the other party's
Confidential Information (as defined below) in confidence and not to disclose
such information to third parties or use such information for any purposes
whatsoever, other than as absolutely necessary to perform its obligations, or to
exercise its rights under this Agreement, without the express written permission
of the other party. Without limiting the foregoing, each party shall be
permitted to disclose Confidential Information only to its officers, employees
and agents who have an absolute need to know such Confidential Information in
order to fulfill its contractual obligations hereunder, or to exercise its
rights, and who are informed of and bound by the confidentiality provisions of
this Agreement. As used herein, "Confidential Information" shall mean, without
limitation any information or materials, whether oral or written, identified by
a party in writing as confidential or proprietary. For the avoidance of doubt,
and without limitation of the above, Licensee's Confidential Information shall
include: (i) the identity, personal data, contact information and usage data of
any of Licensee's or its Affiliates' Customers or end users; (ii) any Customer
Subcontract Agreements, and (iii) any information or materials, whether oral or
written, that Vendor knows or reasonably should know is confidential or
proprietary to Licensee or its Affiliates or any of their business partners,
Customers or clients. The terms of this Agreement shall be the Confidential
Information of both parties. As between Licensee and Vendor, Licensee's
Confidential Information is and shall remain the sole property of Licensee.
Vendor shall not gain any interest or rights in or to the Licensee's
Confidential Information by virtue of its being disclosed to Vendor for the
limited purposes contemplated under this Agreement.
10.2 Exclusions. Each party's confidentiality obligations shall not extend
to information that: (i) is, as of the time of its disclosure, or thereafter
becomes, available to the public through a source other than the disclosing
party or another entity having a confidentiality obligation to the disclosing
party; or (ii) is required to be disclosed pursuant to a subpoena, court order,
or government authority, whereupon the receiving party shall provide prompt
written notice to the disclosing party prior to such disclosure, so that the
disclosing party may seek a protective order or other appropriate remedy. If
Vendor should receive any legal request or process in any form seeking
disclosure of, or if Vendor should be advised by counsel of any obligation to
disclose, such information, Vendor shall provide Licensee with prompt prior
notice of such request or advice so that Licensee may seek a protective order or
pursue other appropriate remedies to protect the confidentiality of the
information. If such protective order or other remedy is not obtained, Vendor
agrees to furnish only that portion of the information which is legally required
to be furnished and, in consultation with Licensee, and to use all reasonable
efforts to assure that the information is maintained in confidence by the entity
to whom it is furnished.
10.3 Return of Confidential Information. At any time as Licensee may
request, Vendor shall promptly, at Licensee's option, either return or destroy
all (or, if Licensee so requests, any part) of the Licensee's Confidential
Information in Vendor's or any of its employees', agents' or contractors'
possession or control, and all copies thereof, and Vendor shall certify in
writing as to its compliance with the foregoing.
11. LIMITATION OF LIABILITY
11.1 SUBJECT TO SECTION 11.2: (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE
FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR SPECIAL
DAMAGES ARISING PURSUANT TO OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF
WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY,
BREACH OF WARRANTIES, OR OTHERWISE, AND EVEN IF ADVISED OF THE LIKELIHOOD OF
SUCH DAMAGES, (B) LICENSEE'S AGGREGATE LIABILITY FOR DIRECT DAMAGES ARISING OUT
OF OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO AN AGGREGATE AMOUNT NOT TO
EXCEED THE FEES DUE TO BE PAID BY LICENSEE TO VENDOR UNDER THIS AGREEMENT AND
(C) VENDOR'S AGGREGATE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO
THIS AGREEMENT SHALL BE LIMITED TO AN AGGREGATE AMOUNT NOT TO EXCEED THE FEES
PAID BY LICENSEE TO VENDOR UNDER THIS AGREEMENT.
11.2 IN NO EVENT SHALL ANY LIMITATION OF VENDOR'S LIABILITY OR DISCLAIMER
OF VENDOR'S LIABILITY FOR DAMAGES APPLY TO VENDOR'S INDEMNIFICATION OBLIGATIONS
OR TO LIABILITY OR DAMAGES ARISING FROM VENDOR'S ABANDONMENT OF ITS OBLIGATIONS
UNDER THIS AGREEMENT, BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, WILLFUL,
MALICIOUS, OR GROSSLY NEGLIGENT CONDUCT, OR PROPERTY DAMAGE OR PERSONAL INJURY.
11.3 THE PARTIES' DISCLAIMERS AND LIMITATIONS OF DAMAGES AND LIABILITY
SHALL APPLY EQUALLY TO PROTECT THE PARTIES' AFFILIATES, PRESENT AND FUTURE
OFFICERS, PRINCIPALS, DIRECTORS, SHAREHOLDERS, PARTNERS, MEMBERS, EMPLOYEES,
CONTRACTORS AND AGENTS.
12. GENERAL
12.1 Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors, permitted assigns and
legal representatives, provided that neither this Agreement nor any of the
licenses or other rights granted under it shall be assignable by either party
(except to an affiliate of such party or in connection with a merger,
acquisition or sale of such party's business relating to the Software) without
the prior written consent of the other party. Vendor agrees that any assignment
it makes hereunder shall not relieve Vendor of its obligations hereunder.12.2 Notices. Any notice required or permitted hereunder to either party
will be deemed to have been duly given only if in writing (the telephone numbers
below are provided for convenience only) and delivered by any of the following
methods: (a) certified U.S. mail, return receipt requested, postage prepaid, to
the address set forth below or such other address as a party may dictate
according to the notice provisions hereof; (b) hand delivery to the person
specified below or any other person so designated by a party according to the
notice provisions hereof; or (c) facsimile directed to the person specified
below at the facsimile number listed below, or such other person or facsimile
number so designated by a party according to the notice provisions hereof; with
a copy of all such notices delivered to counsel specified below or as a party
may dictate in accordance with the notice provisions hereof. Notices shall be
deemed delivered when received by the receiving party. Any notice delivered
after 5:00 P.M. on any business day, or on a Saturday or Sunday, shall be deemed
received on the following business day.
If to Licensee, all notices shall be addressed and delivered to:
If to Vendor, all notices shall be addressed and delivered to:
12.3 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of ______________.
12.4 Consent to Jurisdiction, Venue and Service. Vendor consents and
agrees that all legal proceedings relating to the subject matter of this
Agreement shall be maintained in the state or federal courts sitting within
Blackacre County, State of ________, and all Parties consent and agree that
jurisdiction and venue for such proceedings shall lie exclusively with such courts.
12.5 Severability. If any provision of this Agreement or any Schedule
attached hereto is held invalid or otherwise unenforceable, the enforceability
of the remaining provisions of this Agreement and the Schedules will not be
impaired thereby.
12.6 No Waiver. The failure by any party to exercise any right or remedy
provided for herein will not be deemed a waiver of any right or remedy
hereunder.
12.7 Complete Agreement. The terms and conditions of the Schedules
attached hereto are incorporated into this Agreement by this reference and shall
constitute part of this Agreement as if fully set forth herein. This Agreement,
including the Schedules, sets forth the entire understanding of the parties as
to the subject matter hereof and may not be modified except in a writing
executed by both parties. This Agreement is deemed to supercede and replace any
prior agreements by and between Licensee and Vendor of the same subject matter.
12.8 Survival. Sections 1.7, 8, 9, 10, 11 and 12 shall survive termination
or expiration of this Agreement for all purposes.
12.9 Relationship. The relationship between the parties created by this
Agreement is that of independent contractors and not partners, joint venturers
or agents.
12.10 Publicity. If either party intends to distribute any press release
or other promotional material to any third party, the subject matter of which is
to involve this Agreement, or the material makes specific mention of the other
party, its customers, licensors or affiliates, or uses any such entity's name,
marks, or logos, then the press release or promotional material must first be
approved in writing by such other party.
12.11. Attorneys' Fees. In the event of any litigation arising out of this
agreement, the prevailing party shall be entitled to an award of attorneys fees,
including attorneys fees on appeal.
12.12. Subcontractors. Vendor shall be responsible for the act and
omissions of its contractors.
IN WITNESS WHEREOF the parties have executed this Agreement on the date first
set forth above. By: By:
Title: Title:
SCHEDULE A
SOFTWARE AND FEES 1. Programs: [ ] software, version 3.0.
2. Documentation:
Warning Page Language
Print and electronic copies of complete and accurate Documentation for all
Programs.
3. Fees:
Upon Acceptance, Licensee shall pay to Vendor ___ dollars ($_____). In
addition, Licensee shall pay a continuing royalty fee (the "Continuing Royalty
Fee") in an amount equal to ________dollars ($ ) each month.
4. Time Frames for Delivery: Within three (3) days of the Effective Date
5. Professional Services Rates: Webmasters (or any technology or
programming services): $___ - $___ / hour.
SCHEDULE B
THIRD PARTY PRODUCTS
Licensee-Provided Third Party Products:
Licensee requires [ ].
End-users require any standard web browsing software installed on a personal
computer with internet access.
Vendor-Provided Third Party Products:
