Fill and Sign the Form 8 K Xcel Brands Inc for Feb 11

-1- § 7.26 Form: Software License Agreement With Multi Branch Option (Cover Sheet) AGREEMENT made this ______ day of __________ by and between Licensor Corporation with offices in New York, New York ("Licensor") and the Licensee Corporation with offices in New York, New York ("Licensee"). Licensee: ____________________________________________ Address:_____________________________________________ City: _____________ State/Province: _______ Code: _______ Contact: ____________________ Alternate Contact: _______ Telephone: __________________________________________ Licensed Software: _____________________________________ Support Hours: ____________________ License Fee: $ _____________________ Total Fee: $ _____________________ Amount Due at Execution of this Agreement: $ ___________ Amount Due upon Delivery of Licensed Software: $ ___________ Amount Due upon Acceptance of Licensed Software: $ ________ Additional License Options Multi-Branch License Fee: $ ________(for each additional Branch) Unlimited Bank Use License Fee: $ _____________ Additional Computer System License Fee - second: $ ________third: $ ______- each subsequent: $ _______ Licensee has read and agrees to the terms and conditions of this Agreement. This Agreement shall be effective when executed by Licensor. Licensee Corporation Licensor Corporation By: _________________________ By: _________________________ Title: _________________________ Title: _________________________ Terms and Conditions 1. Software License Subject to the terms and conditions set forth below, Licensor grants to Licensee a perpetual, non-exclusive, non-transferable license (the "License") to use the Licensed Software which includes programs, related materials and documentation, the index of which is attached hereto as Schedule A, delivered to Licensee therewith (the "Documentation"). Licensee may use the Licensed Software only on -2- the Computer System located at the Computer System Location, as set forth in Schedule B, and only with respect to transactions and activities of the Licensed Branch(es). For purposes of this Agreement, each separate record keeping entity which identifies and segregates asset and liability accounts in the books and/or records of Licensee, and is wholly owned by Licensee, is defined as a Branch. The Licensed Branches are listed in Schedule C.One copy of the Licensed Software in object code form only and two copies of the Documentation will be supplied to Licensee. Licensee and Licensor shall agree on a date for delivery of the Licensed Software to the Computer System Location (the "Delivery Date"), which date shall not be more than four (4) months from the date hereof. 2. Use of Software The Licensed Software shall be used only by Licensee's employees and only on the Computer System at the Computer System Location. In the event that the Computer System becomes inoperable, Licensee shall have the right to temporarily transfer the Licensed Software to a backup system, for a reasonable period of time, while the Computer System is inoperable, and to complete the then active use of the back- up system. Licensee shall provide Licensor with written notice within five (5) days of any such transfer. Licensee shall also provide Licensor with written notice upon transferring the Licensed Software to the Computer System when it becomes operational. Licensee shall have the right to transfer the Licensed Software from the Computer System to computer equipment at another location subject to the terms and conditions of this Agreement; provided, however, that Licensee must provide Licensor with advance written notice specifying the reason for the transfer and a revised and dated Schedule B indicating the equipment on which the Licensed Software will reside (the new Computer System), its serial number and the Computer System Location. Notwithstanding the foregoing, Licensor's warranty obligations to perform error correction, set forth in Section 9 of this Agreement, shall not apply to the Licensed Software so transferred unless Licensor has given its prior written approval for the transfer. In no event shall the Licensed Software, and one (1) back-up copy of each of the earlier versions of the Licensed Software, reside on more than the Computer System or a back-up computer system to which the Licensed Software has been transferred in accordance with the terms of this Agreement, unless Licensee obtains Licensor's prior written authorization. Licensee may create copies of each diskette containing the Licensed Software for bona fide back-up or archival purposes only. No identifying marks, copyright or proprietary right notices may be -3- deleted from any copies of the Licensed Software made by Licensee. Licensee shall not modify, translate, decompile nor create or attempt to create, by reverse engineering or otherwise, the source code from the object code supplied hereunder or use it to create a derivative work. Any updates, replacements, revisions, enhancements, additions or conversions to the Licensed Software supplied to Licensee by Licensor by separate agreement shall become a part of, and subject to this Agreement and License. Licensee shall maintain adequate records to ensure compliance with the License identifying the specific equipment on which the Licensed Software has been used. Portions of the Licensed Software may not be used independently of the Licensed Software.Each copy of the Licensed Software hereunder for use by a particular Licensed Branch shall only be used to process internal information for such Licensed Branch, and Licensee agrees not to run a service bureau, or process information for third parties without the prior written consent of Licensor. During normal business hours and any time during which Licensee is using the Licensed Software, Licensor or its authorized representative may inspect, upon reasonable advance notice, and make copies of the Licensed Software then in use for the purpose of determining that the provisions of this Agreement are being complied with by Licensee. 3. Installation, Training and Support Licensor shall provide to Licensee installation, training, conversion, customization and other support services ("Support") from the execution date hereof through the date which is ninety (90) days from the date of Acceptance, as hereinafter defined. Licensor's obligation to perform Support shall not exceed the Support Hours during this period. Any Support provided by Licensor which exceeds the Support Hours will be charged to Licensee at Licensor's then current Support rates. Additionally, during this period Licensor shall provide telephone support and updates to the Licensed Software as would be provided to other customers under Licensor's standard Consulting Services Agreement, at no additional cost to Licensee. Licensor shall commence any conversion and customization support only after Acceptance of the Licensed Software by Licensee. In the event that Licensee desires subsequent software Support for the Licensed Software, Licensee shall execute Licensor's standard Consulting Services Agreement. 4. Acceptance -4- After Licensor advises Licensee that the installation of the Licensed Software is completed, Licensee shall have a period of thirty (30) days (the "Evaluation Period") in which to perform testing and evaluation of the Licensed Software to determine whether the Licensed Software functions in accordance with the specifications in the Documentation (the "Acceptance Test"). Licensee shall immediately, but in no event more than five (5) days after the expiration of the Evaluation Period, notify Licensor in writing of all non-conformities in the Licensed Software which have been identified by Licensee during the Evaluation Period. Such non-conformities shall be limited to material failures of the Licensed Software to conform to the specifications in the Documentation. Upon receipt of such written notice, Licensor shall use reasonable efforts to remedy those defects that Licensor determines, in its sole discretion, are material non-conformities from the specifications, whereupon the Acceptance Test shall be performed by Licensee for the sole purpose of determining that all such identified material nonconformities have been remedied. The Licensed Software shall be deemed Accepted by Licensee if either: (i) Licensee notifies Licensor in writing of its acceptance and the Acceptance date shall then be the date of such notice; or (ii) Licensee fails to notify Licensor in writing within the applicable time period of any material non- conformity in the Licensed Software and the Acceptance date shall then be the last day of said period; or (iii) Licensee places in productive use any portion of the Licensed Software and the Acceptance date shall then be the first day of such productive use. In the event that the Licensed Software is not Accepted by Licensee after reasonable good faith efforts have been made by Licensor to correct the material non-conformity, Licensee's sole remedy shall be to return to Licensor the Licensed Software and Documentation, and all copies thereof, and receive a refund of any License Fees paid therefor. The procedure set forth above is the exclusive means by which Licensee shall be entitled to reject the Licensed Software or any part thereof and the exclusive remedy for such failure. 5. Payment Licensee shall pay the Total Fee in accordance with the terms of payment set forth on the first page hereof. Licensee shall pay all invoices rendered by Licensor within thirty (30) calendar days after the invoice date. All payments shall be made in United States Dollars. If Licensee fails to pay any amount due within thirty (30) days from the invoice date, Licensee shall be responsible to pay to Licensor late charges equal to the lesser of 1.5% per month or the highest interest rate allowable by applicable law, together with all expenses and collection costs, including reasonable attorneys' fees, incurred by Licensor in enforcing the Agreement. Licensee shall reimburse -5- Licensor for any out-of-pocket expenses incurred in connection with duties performed by Licensor hereunder. Upon request, Licensor shall provide Licensee with reasonable documentation evidencing the out- of-pocket expenses incurred by Licensor.6. Proprietary Rights Licensor represents that it is the owner of the Licensed Software, including all applicable rights to patents, copyrights, trademarks, and trade secrets inherent therein, and appurtenant thereto, and that it has the right to grant the License hereunder. Licensee agrees and acknowledges that Licensor retains title to the Licensed Software and any copies thereof, and that any modifications or additions thereto, whether made by Licensee or Licensor, shall be deemed Licensed Software, and Licensee shall not, by virtue of this Agreement or otherwise, acquire any proprietary rights whatsoever therein. 7. Confidentiality Licensee shall not sell, transfer, publish, disclose, display or otherwise make available any portion of the Licensed Software or the Documentation to others. Any and all such information of Licensor provided by Licensor to Licensee shall be deemed proprietary and confidential information of Licensor (hereinafter "Confidential Information"). Licensee agrees to hold such Confidential Information in strict confidence and secure and protect it in a manner consistent with the maintenance of Licensor's ownership and proprietary rights therein and to take appropriate action by instruction or agreement with its employees and agents who are permitted access to said Confidential Information to satisfy its obligations hereunder. Licensee shall use its best efforts to assist Licensor in identifying and preventing any unauthorized use, copying or disclosure of the Confidential Information or any portions thereof or any of the algorithms or logic contained therein. Without limitation of the foregoing, Licensee shall advise Licensor immediately in the event Licensee learns or has reason to believe that any person who Licensee has given access to the Confidential Information, or any portion thereof, has violated or intends to violate the terms of this Agreement, and the Licensee will, at Licensee's expense, cooperate with Licensor in seeking injunctive or other equitable relief in the name of Licensee or Licensor against any such person. Licensee acknowledges that the disclosure of any Confidential Information, or of 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 -6- law. Accordingly, Licensor may immediately terminate this License Agreement, including all license rights granted herein, in the event Licensee breaches any of its confidentiality obligations herein. In addition, Licensor is entitled to obtain immediate injunctive relief against the breach or threatened breach of any of the foregoing undertakings, in addition to any other legal remedies which may be available. Notwithstanding the obligations set forth in this Section 7, the confidentiality obligations of Licensee shall not extend to information that:a. is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than Licensee; b. was known to the Licensee as of the time of its disclosure; c. is independently developed by Licensee; d. is subsequently learned from a third party not under a confidentiality obligation to Licensor; or, e. is required to be disclosed pursuant to court order or government authority, whereupon the Licensee shall provide notice to Licensor prior to such disclosure. The provisions of this Section 7 shall survive the termination of this Agreement. 8. Intellectual Property Infringement Licensor will, at its own expense, defend any action brought against Licensee to the extent that such action is based on a claim that any aspect of the Licensed Software or Documentation used within the scope of this Agreement infringes any United States patents, copyrights, licenses or trade secrets, provided Licensee promptly notifies Licensor in writing of any such claim and, provided further, Licensor shall have the exclusive right to control such defense. In addition, Licensor shall pay any direct costs and damages attributable to such claim finally awarded against Licensee, its officers, directors and/or employees on such claim, by a United States court having competent jurisdiction. In no event shall Licensee settle any such claim, lawsuit or proceeding without Licensor's prior written approval. The foregoing states the entire liability of Licensor with respect to infringement of any copyrights, patents, licenses or trade secrets by the Licensed Software or any parts thereof, and Licensee hereby expressly waives any other such liabilities. In the event that any third party makes a claim against Licensee or Licensor based upon the use by Licensee of any portion of the Licensed Software in combination with material not provided to Licensee by Licensor, and such claim is based solely upon the use of the combination, Licensee agrees to cease using the material or -7- software not provided by Licensor in order to thereby eliminate the allegedly infringing combination. Further, Licensee agrees to hold Licensor harmless with respect to any claims made by a third party for such infringement and for all damages which Licensor may suffer, including attorneys' fees.9. Limited Warranty Licensor warrants to Licensee for a period of ninety (90) days from the date of Acceptance that the Licensed Software shall perform in all material respects substantially in accordance with the Documentation. Licensor's sole obligation or liability under this warranty shall be to use reasonable efforts to correct the Licensed Software, in a reasonable time, to perform in accordance with the Documentation, upon written notice of its failure to so perform from the Licensee. In the event Licensor fails to remedy material defects in the Licensed Software during the warranty period, Licensor's maximum liability shall be to refund the License Fee paid by Licensee hereunder. Any modification, maintenance or other change to the Licensed Software by the Licensee, or its agents or employees, or use on equipment other than the Computer System, except as authorized herein, shall void this warranty but not the exclusions and waivers of warranties contained herein. Licensor does not warrant that the Licensed Software will meet Licensee's requirements or that its use will be uninterrupted or errorfree. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, LICENSOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Other than the limited express warranty set forth above, the entire risk as to the quality and performance of the Licensed Software is with the Licensee. 10. Limitation of Liability EXCEPT AS SET FORTH IN SECTION 8 WITH RESPECT TO LICENSOR'S OBLIGATION FOR INDEMNIFICATION, LICENSOR SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LICENSOR'S LIABILITY FOR ANY REASON AND UPON ANY CAUSE OF ACTION WHATSOEVER EXCEED THE LICENSE FEES PAID BY LICENSEE TO LICENSOR UNDER THIS AGREEMENT. -8- 11. Termination In addition to its right as set forth elsewhere in this Agreement, Licensor shall have the right to terminate this Agreement upon written notice to Licensee (i) upon a material breach by Licensee, its officers or employees of any provision of this Agreement, including, but not limited to, payment, which material breach remains uncured twenty (20) days after written notice thereof has been provided to Licensee, or (ii) upon the termination of the business of Licensee, insolvency or the filing of a petition in bankruptcy. The termination of this Agreement shall automatically, and without further action by Licensor, terminate and extinguish the License. Within five (5) days after the termination of the License granted hereunder, Licensee shall return the Licensed Software to Licensor, or upon request of Licensor, destroy the Licensed Software and all copies thereof. Licensee shall provide Licensor with a written certification signed by an officer of Licensee certifying that all copies of the Licensed Software have been returned to Licensor or destroyed. 12. Taxes Licensee shall, in addition to the payments required hereunder, 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 contemplated hereby; excluding, however, income taxes on income which may be levied against Licensor. Licensee shall reimburse Licensor for the amount of any such taxes or duties paid or accrued by Licensor as a result of this transaction. 13. Export Assurance Notwithstanding anything contained herein to the contrary and regardless of any disclosure made by Licensee to Licensor of any ultimate destination of the Licensed Software, Licensee shall not export or reexport directly or indirectly the Licensed Software acquired from Licensor, or any technical data derived therefrom, without first obtaining the written approval or required export license to do so from the United States Department of Commerce or any other agency of the United States Government or of any foreign government having jurisdiction over such transaction, when required by an applicable statute, regulation or order. Licensee hereby assures Licensor that it does not intend to nor will it knowingly, without the prior written consent, if required, of the Office of Export Administration of the U.S. Department of Commerce, Washington, D.C. 20230, transmit or ship the Licensed Software or any modifications thereto or product thereof, directly or indirectly, to -9- Afghanistan or to the Peoples Republic of China or to any Group Q,S,W,Y or Z country specified in Supplements to Section 370 of the Export Administration Regulations issued by the U.S. Department of Commerce as may be amended from time to time.14. Governmental Restrictions Licensee shall be responsible for complying with all applicable governmental regulations of the United States or any foreign countries with respect to the use of the Licensed Software outside of the United States, including, but not limited to import and export restrictions, obtaining any necessary consents and registering or filing any documents. Licensee shall be solely responsible for all costs associated with such compliance. Licensee shall defend, indemnify and hold Licensor harmless from and against any and all claims, judgments, costs, awards, expenses (including reasonable attorneys' fees) and liability of any kind arising out of the non-compliance with applicable governmental regulations, statute, decree or other obligation with respect to the Licensed Software outside the United States. 15. Additional License Options Licensee shall have the right, at any time, to add additional Licensed Branches or computer systems to be covered under this Agreement subject to the following: (i) Licensee shall pay the Multi Branch License Fee set forth on the cover page hereof for each additional Licensed Branch whose transactions will be processed by the Computer System identified in Schedule B or any additional Computer System as defined below. Licensee shall complete and forward to Licensor, with the applicable license fees, a revised copy of Schedule C annexed hereto. (ii) In the event that the Licensed Software will be utilized by any Licensed Branch on a separate computer system (each an additional "Computer System"), Licensee shall pay the applicable Additional Computer System License Fee for the Licensed Software for each such additional Computer System. Licensee shall complete and forward to Licensor, with the applicable license fees, a copy of Schedule D annexed hereto. (iii) Licensee may pay the applicable Unlimited Bank Use License Fee to utilize the Licensed Software to process the information of all of Licensee's Branches on any Computer System. Licensee shall complete and forward to Licensor -10- with the Unlimited Bank Use License Fee, a revised copy of Schedule B and Schedule D, if applicable. (iv) The Multi Branch License Fees, the Additional Computer System License Fees and the Unlimited Bank Use License Fees payable in Paragraphs (i), (ii) and (iii) herein shall increase by ten percent (10%) on January 1 of each year. (v) Licensee shall pay Licensor's then applicable fees for Support. 16. General This Agreement constitutes the complete and exclusive statement of the terms and conditions between the parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the parties relating to this Agreement. This Agreement may not be modified or altered except by written instrument duly executed by both parties. The waiver or failure of either party to exercise any right provided for herein shall not be deemed a waiver of any further right hereunder. No action, regardless of form, arising out of this Agreement may be brought by either party more than two (2) years after the cause of action has arisen, with the exception of violation of Licensor's proprietary rights in the Licensed Software. Licensee may not assign or sublicense, without the prior written consent of the Licensor, its rights, duties or obligations under this Agreement, in whole or in part, to any person or entity. This Agreement and performance hereunder shall be governed by the laws of the State of New York without regard to conflicts of laws. The parties acknowledge and agree that the forum for all disputes arising out of this Agreement shall be an appropriate federal or state court in the City of New York. Any notice provided pursuant to this Agreement shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if mailed, three (3) days after deposit in the U.S. mails, postage prepaid, certified mail return receipt requested. All notices shall be addressed to the parties at the respective addresses indicated herein. Either party may change its address by giving written notice to the other party.