Computer Software Lease with License Agreement

Assignment of Rights in Computer Software - With Reservations

Assignment Agreement made as of (date) by

, a corporation organized and existing under the laws of the state of , with its principal office located at , hereinafter called Assignor, to , a corporation organized and existing under the laws of the state of , with its principal office located at , hereinafter called Assignee.

Whereas, Assignor owns a proprietary computer software system known as , hereinafter called the Software or the System; and

Whereas, Assignee desires to use the Software and Assignor desires to make the Software available to Assignee in accordance with the terms and conditions set forth in this Agreement;

Now, therefore, for and in consideration of the mutual covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. Assignment of Right to Use Software

A. Assignor hereby assigns Assignee the nontransferable, nonexclusive, right to use the Software which is described in Exhibit A, attached to and made a part of this Agreement, subject to the conditions of this Agreement.

B. Legal title to the Software and Software documentation provided under this Agreement shall remain in Assignor as its sole property subject to Assignee's rights specified in this Agreement.

2. Use of System

A. The parties agree that the Software is proprietary to Assignor. Assignee agrees that the Software and all related data, whether oral or written, and furnished under this Agreement constitute a valuable asset and trade secret of Assignor and are provided for Assignee's use for the purposes of this Agreement and will be held in confidence.

B. Assignee agrees not to duplicate or disclose any information provided relative to the Software in whole or in part, or for the use of others, and to protect such information in the same fashion as it protects its own proprietary or confidential information. Assignee will not remove any designation mark from any supplied materials that identifies such materials as belonging to or developed by Assignor.

C. Assignee will use the Software only for its internal data processing purpose and will not use the Software in any manner for or by a third party. In no event shall Assignee use the Software in a third-party computer services bureau or time sharing operation.

D. Assignee is not restricted from providing copies of the user documentation to other Assignee internal parties for whom Assignee may be providing data processing services.

3. Term

A. The term of Agreement is from to , and subject to the terms and conditions set forth in this Agreement unless terminated in accordance with the provisions of Sections 9 and/or 10.

B. To renew this Agreement for a successive (e.g., one year) periods, Assignee shall:

4. Time and Place of Installation and Acceptance

A. Assignor shall deliver the Software to Assignee at the address set forth above within days after Assignee's order and deposit check are received by Assignor.

B. Assignor shall install the Software at the address set forth in Paragraph D, within days after delivering the Software, but in no event later than .

C. The Software shall be deemed accepted by Assignee on successful completion of Software checkout by Assignor at the time of installation. Such checkout may be witnessed by Assignee.

D. The Software will be installed solely on one computer as follows:

 Brand Name: ;

 Model No.: ;

 Serial No.: ;

 Location: .

E. Assignee may transfer the Software to another computer system or move the computer system specified above to another physical location provided prior written approval is obtained from Assignor. Such approval shall not be unreasonably withheld by Assignor.

5. Terms of Payment

A. Assignee shall pay Assignor % of the Software price at the signing of the purchase order. The balance will be paid in accordance with the Payment Schedule, attached hereto as Exhibit B and made a part of this Agreement.

B. Unless otherwise stated, all prices are exclusive of state and local use, sale, and similar taxes. Any applicable taxes will be paid by Assignee, which taxes will appear as separate additional items on Assignor's invoices unless Assignee provides Assignor with a valid tax exemption certificate acceptable to the taxing authorities.

C. All payments shall be due within days after receipt of Assignor's invoice. Any payment received after its due date shall bear an interest rate of % per month, or the legal limit, whichever is less, for each month or fraction of a month beyond the payment due date.

D. The Software shall be returned to Assignor if the required fees are not paid in full.

E. A cancellation service fee will be charged for all cancelled orders equal to % of the total value of the order. Assignor shall have the right to invoice Assignee for any services provided at no charge under this Agreement in the event of such cancellation.

6. Warranty

A. Assignor warrants that the Software at the time of installation will perform in accordance with the current user's manual.

B. Assignor's liability is limited as follows:

1. Over a period of months after installation of the Software, Assignor, at its expense, will correct any errors in the Software attributable solely to Assignor.

2. Assignor shall be relieved of any and all obligations with respect to Paragraph A of this Section for any portions of the Software that are revised, changed, modified, or maintained by anyone other than Assignor. Assignee may modify the Software, but Assignor shall not be responsible for compatibility of such modified Software with equipment, other equipment, other programs, future program releases or test and verification routines, or engineering change orders.

C. Assignor warrants that the Software will function on all supported models of the (specify types of computers) , including new models that are delivered by the manufacturer and completely compatible with it, provided, however, that Assignee has elected Software maintenance pursuant to Section 8 and complied with Section 4.

D. Assignor shall indemnify and hold Assignee harmless from any liability suffered by Assignee arising out of any defects in the rights of Assignor to the Software at the time of delivery, provided that, if any such claim is asserted against Assignee, Assignor shall be notified of the same by Assignee within days of receipt by Assignee of knowledge of such asserted claim, and Assignor consequently shall be given the right and option to conduct and bear the cost of any defense against such claim up to the amounts paid by Assignee.

E. ASSIGNOR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

7. Limitation of Liability

EXCEPT AS PROVIDED IN SECTION 6, ASSIGNEE AGREES THE MAXIMUM LIABILITY ASSUMED BY ASSIGNOR UNDER THIS AGREEMENT, REGARDLESS OF THE CLAIM OR THE FORM OF ACTION OR SUIT, WHETHER IN CONTRACT, NEGLIGENCE, OR TORT, SHALL BE LIMITED TO CORRECTION OR REPLACEMENT COSTS, OR $, WHICHEVER IS LESS. IN NO EVENT SHALL ASSIGNOR BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, EVEN IF ASSIGNOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ASSIGNEE AGREES TO INDEMNIFY OR OTHERWISE HOLD ASSIGNOR HARMLESS FROM ALL CLAIMS OF THIRD PARTIES THAT MAY ARISE FROM ASSIGNEE'S USE OF THE ITEMS DELIVERED UNDER THIS AGREEMENT. ASSIGNEE'S REMEDIES IN THIS AGREEMENT ARE EXCLUSIVE.

8. Optional Software Maintenance Service

Assignee shall have the option to obtain Software maintenance services on an annual basis from Assignor, on payment of the fee described in the then-current Assignor price list, which service:

A. Becomes effective on the date of Software acceptance as defined in Section 4;

B. Provides Assignee the same warranties set forth in Section 6;

C. Includes automatic updates of all corrections developed or implemented by Assignor to modules of the Software provided during the annual term of each maintenance agreement;

D. Includes reasonable telephone consulting (up to hours per month) and manual updates for sets of user manuals. Telephone consulting over the minimum will be billed at Assignor's then-current standard time and material rates;

E. Maintenance Agreement must be renewed annually to maintain continuity of corrections. If maintenance is allowed to lapse, the renewal, if desired by Assignee, must be paid for the lapsed period forward.

9. Termination

A. Assignee may terminate this Agreement by providing written notice of termination days prior to the expiration of the initial one-year term or any successive one-year period extension.

B. On termination of this Agreement, Assignee shall promptly return all Assignor proprietary data, and shall erase from all computer storage and computer storage devices any image or copies of the Software.

10. Default

A. Either party has the right to terminate this Agreement and any license granted on written notice to the other party if such other party:

1. Materially fails to perform any of its obligations under this Agreement, which failure has not been corrected within days after receipt of written notice of the failure; or

2. Takes action to liquidate and dissolve, becomes insolvent, suffers an appointment of a receiver, assigns all or part of its assets for the benefit of creditors, or is involved in any proceeding (voluntary or involuntary) under any bankruptcy or insolvency laws.

B. On any such termination by Assignor, Assignee agrees to return immediately to Assignor all Software programs, related documentation, and all copies of such programs and documentation in the possession of Assignee or any of Assignee's agents or other parties to whom Assignee may have provided such copies, in the form provided by Assignor or as modified by Assignee and to make no further use of the Software.

C. On any such termination by Assignee, Assignee shall be granted a perpetual, restricted license to the Software under the conditions and restrictions stated in this Agreement without any further obligation to Assignor.

D. Any termination under this section shall not affect either party's ability to pursue any other remedy existing at law or in equity for such default.

11. Technological Advances

A. Assignee agrees that Assignor shall have the right to free and unencumbered use, sale, or license of any technological advancements developed or acquired by Assignor in the performance of any services rendered by Assignor to the Assignee in connection with this Agreement.

B. Assignor agrees that Assignee will have an unencumbered right to use improvements made on the Software when fully paid by Assignee within the Assignee's corporate structure. Charges for Assignor support of such improvements, if any, will be negotiated on a case-by-case basis.

12. Relationship of Parties

Each party is an independent contractor and not an agent or partner of, or joint venturer with, the other party for any purpose, and neither party by virtue of this Agreement shall have any right, power, or authority to act or create any obligation, expressed or implied, on behalf of the other party.

13. Delays

Neither party shall be liable or deemed in default for any delay or failure in performance of this Agreement resulting directly or indirectly from any cause completely, solely, and exclusively beyond the control of that party.

14. Purchase Order

If Assignee issues a purchase order or other instrument covering the sale and services specified in this Agreement, it is agreed that such document is for Assignee's internal purposes only, shall in no way affect any of the provisions of this Agreement, and may not, notwithstanding any provision to the contrary, be incorporated into this Agreement by reference.

15. Severability

The invalidity of any portion of this Agreement will not and shall not be deemed to affect the validity of any other provision. If any provision of this Agreement is held to be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision.

16. No Waiver

The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as subsequently waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.

17. Governing Law

This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of .

18. Notices

Unless provided herein to the contrary, any notice provided for or concerning this Agreement shall be in writing and shall be deemed sufficiently given when sent by certified or registered mail if sent to the respective address of each party as set forth at the beginning of this Agreement.

19. Attorney’s Fees

In the event that any lawsuit is filed in relation to this Agreement, the unsuccessful party in the action shall pay to the successful party, in addition to all the sums that either party may be called on to pay, a reasonable sum for the successful party's attorney fees.

20. Mandatory Arbitration

Any dispute under this Agreement shall be required to be resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect.

21. Entire Agreement

This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement.

22. Modification of Agreement

Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if placed in writing and signed by each party or an authorized representative of each party.

23. Assignment of Rights

The rights of each party under this Agreement are personal to that party and may not be assigned or transferred to any other person, firm, corporation, or other entity without the prior, express, and written consent of the other party.

24. Counterparts

This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument.

25. Compliance with Laws

In performing under this Agreement, all applicable governmental laws, regulations, orders, and other rules of duly-constituted authority will be followed and complied with in all respects by both parties.

26. In this Agreement, any reference to a party includes that party's heirs, executors, administrators, successors and assigns, singular includes plural and masculine includes feminine.

WITNESS our signatures as of the day and date first above stated.

Attach Exhibits