Fill and Sign the Agreement for Sale of Technical Equipment Form

-1- § 12.17 Form: Product Sales Agreement AGREEMENT made this ________ day of __________, by and between Seller and Buyer. WHEREAS, Seller has developed and is the owner of, all right, title and interest in and to a software product known as Program File further described in the manual attached hereto as Schedule "A" ("Program File"). WHEREAS, Buyer desires to purchase Program File and Seller desires to sell Program File to Buyer; NOW, THEREFORE, in consideration of the mutual promises contained herein, it is agreed as follows: 1. Transfer and Assignment1.1 Transfer of Title Effective as of the above date, Seller hereby transfers, sells and assigns to Buyer all right, title and interest in Program File, and the trademark Program File, including but not limited to source code, object code, internal documentation, flow charts, file layouts and external documentation such as user and reference manuals, as well as all marketing and distribution rights. Where such documentation, literature and materials exist in machine-readable form, Seller will provide them in that form. Seller shall provide Buyer a list of all current users and distributors of Program File. 1.2 Assignment of Related Agreements Seller agrees to transfer and assign all agreements related to Program File, including, but not limited to license and maintenance agreements. A schedule of all such agreements are attached hereto as Schedule "B". 1.3 Assignment of Dealers Seller agrees to transfer and assign all agreements related to all authorized sales agents, dealers and distribution of Program File to Buyer. A schedule of all such agreements are attached hereto as Schedule "C". 1.4 Copyright and Trademark Assignment Seller agrees to execute and deliver to Buyer the copyright and trademark assignment substantially in the form attached hereto as Schedule "D". -2- 1.5 Further Assurances Upon the request of Buyer, Seller shall from time to time execute and deliver to Buyer all such instruments and documents or further assurances as shall be necessary to vest in Buyer title to and possession of Program File and the trademark Program File, and shall provide or otherwise make available all such documents, instruments, agreements and other information and take such further actions as shall be necessary to consummate the transaction contemplated hereby. 2. Price and Payment Buyer agrees to pay Seller the sum of $________ payable in two equal installments. The initial $________ will be paid upon the execution of this Agreement and receipt by Buyer of the materials described in Section 1 of this Agreement. The final $________ will be paid upon the execution and filing of the appropriate copyrights and trademark registrations and assignments, a reasonable time for which shall be approximately forty-five (45) days after the initial payment. Buyer shall pay, if and when due, and be responsible for all sales, use, excise and other taxes, payable in connection with this transaction, except for any income taxes of Seller. 3. License to Seller Buyer hereby grants to Seller a perpetual, non-exclusive right and license to use Program File as follows: a. to reproduce and use Program File, including source code, for its own internal use and application development; b. to deliver to external clients Program File as an integral part of and embedded in executable programs, provided that Program File is not separately accessible to external clients other than for use in ad hoc reports. 4. Limited Warranty 4.1 Rightful Owner and Authority Seller warrants that (i) it is the sole and rightful owner of all right, title and interest in and to the Program File software and the trademark Program File, (ii) Seller has the unrestricted right to enter into this Agreement, (iii) there are no liens or encumbrances on Program File, (iv) Seller has identified to Buyer herein all Program File sales agents, dealers and distributors which are licensed to sell or distribute Program File, (v) Seller is a corporation duly organized, validly existing and in good standing under the laws of its state of -3- incorporation, (vi) Seller has the corporate power and authority to execute, deliver, and perform its obligations under this Agreement, (vii) the execution, delivery and performance of this Agreement and each of the documents contemplated hereby has been duly and validly authorized and approved by all necessary and proper corporate action on the part of Seller, (viii) Seller has taken all action required by law, its Articles of Incorporation, ByLaws or any agreements to which it is a party, in order to execute, deliver and perform its obligations under this Agreement, and (ix) there are no claims, actions or charges against Seller regarding intellectual property infringement of Program File or breach of the agreements to be assigned to Buyer pursuant to paragraph 1.2 hereof.4.2 Indemnification Seller shall indemnify, defend and hold Buyer harmless from all fines, penalties, damages, claims, liens and other expenses, including but not limited to expenses of investigation, expert fees, attorneys' fees and court costs arising out of or related to any claim by a third party from infringement or violation of any copyright, patent, license or other intellectual property right with respect to Program File and from the other warranties and provisions of paragraph 4.1 hereof. 4.3 Disclaimer of Warranties OTHER THAN THOSE WARRANTIES SET FORTH IN PARAGRAPH 4.1 ABOVE, PROGRAM FILE IS SOLD "AS IS" AND SELLER SPECIFICALLY DISCLAIMS ALL WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 5. Technical Assistance Seller agrees to provide five (5) days of training, at a mutually agreed upon time after receipt of the second payment installment, to Buyer employees, at no additional cost to Buyer. Seller will provide additional technical support by telephone for nine (9) months after the date of this Agreement as to any critical problems which substantially impair the functioning of Program File and which relate to undocumented software functions or features, at an additional charge of $150 per call or series of calls related to the same problem. 6. General 6.1 Confidential Information -4- Seller and Buyer acknowledge that in the course of dealings between the parties, each party will acquire information about the other party, its business activities and operations, its technical information and trade secrets, of a highly confidential and proprietary nature. Each party shall hold such information in strict confidence and shall not reveal the same except for any information generally available to or known to the public, independently developed outside the scope of this Agreement or lawfully disclosed by or to a third party or tribunal. Upon the execution of the Agreement, Program File shall become the confidential, proprietary and trade secret information of Buyer. The confidential information of each party shall be safeguarded by the other to the same extent that it safeguards its own confidential materials or data relating to its own business. 6.2 Cure Period Neither party may terminate this Agreement for breach or default of the other party unless and until the party seeking to terminate has specified the breach or default in writing notifying the other party that it intends to terminate this Agreement and such breach or default has not been cured by the receiving party within thirty (30) days after receipt of such written notice. 6.3 Force Majeure Neither party shall be liable or deemed to be in default for any delay or failure in performance under this Agreement resulting directly or indirectly from acts of God, or any causes beyond the reasonable control of such party. 6.4 Jurisdiction and Venue This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia. 6.5 Notice Any notice required to be given by either party to the other shall be deemed given if in writing and actually delivered or deposited in the United States mail in registered or certified form with return receipt requested, postage paid, addressed to the notified party at the address set forth above or as changed by notice. 6.6 Assignment This Agreement is not assignable by either party without the consent of the other. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors. -5- 6.7 Severability If any provision of this agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the validity or enforceability of any other part or provision of this Agreement. 6.8 Waiver No waiver by any party of any breach of any provision hereof shall constitute a waiver of any other breach of that or any other provision hereof. 6.9 Entire Agreement This Agreement, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous proposals, both oral and written, negotiations, representations, commitments, writings and all other communications between the parties. It may not be released, discharged, or modified except by an instrument in writing signed by a duly authorized representative of each of the parties. IN WITNESS WHEREOF, the parties hereto have executed this Agreement by a duly authorized representative as of the date set forth above. Seller Buyer By: _______________________ By: __________________ Title: ______________________ Title: _________________