Fill and Sign the License Agreement Data Form

Computer Software License Agreement and Data Base Update Agreement This Agreement is made on the       day of       , 20       , between       , a corporation organized and existing under (Name of Licensee) the laws of the state of       , with its principal office located at (Name of State)       , referred to herein as Licensor , and (Street Address, City, County, State, Zip Code)       , a corporation organized and existing under the (Name of Licensee) laws of the state of       , with its principal office located at (Name of State)       , referred to herein as Licensee . (Street Address, City, County, State, Zip Code) Whereas, Licensee and Licensor desire to execute a Computer Software License and Data Base Update Agreement, hereinafter called the Agreement; Now, therefore, for and in consideration of the mutual covenants contained in this Agreement, and other good and valuable consideration, the parties agree as follows: I. Licensee and Effective Date. A. The authorized Licensee is       . (Name of Licensee) B. The effective date of this Agreement is       . (Date) II. Setup Fee and Installation . Licensee agrees to pay Licensor a one-time installation and setup fee for the services provided to Licensee in setting up the Program and database for the Licensed Territory and for the advice and assistance on equipment and business methods which Licensor provides in written and oral form. The total fee for such initial services shall be       percent (       %) of the Licensee’s actual Gross Margin during the first 365 days the Software and Documentation are in operation in the Licensing Territory. Gross Margin means Licensee’s total gross receipts less (i) taxes on customer calls, (ii) commissions to the customers, and (iii) the actual expenses incurred on behalf of the customers. The estimated setup fee for the Licensing Territory is $       . One-third (1/3) of the estimated setup fee is payable on signing this Agreement and one-third (1/3) is payable on delivery of the Software and Documentation and successful demonstration of the Program and initial database for the specified Licensing Territory. The final payment on the setup fee shall be payable thirty (30) days after the end of the first year the Software and Documentation is in operation and shall be adjusted based on Licensee’s actual Gross Margin during the first year of operation. III. Service Fee. A. Licensee. Licensee shall make available to Licensor and its representatives, promptly upon Licensor request therefore, all of Licensee records, including without limitation, financial records and financial statements, in order for Licensor to accurately determine the amount owing by Licensee hereunder. Licensor shall have the unlimited Computer Software License Agreement and Data Base Update Agreement Page 1 of 6 right to access Licensee's computer system by telecommunications or, during normal business hours by direct access, for the purpose of monitoring usage and for program and database maintenance, however, such access will not unreasonably interfere with the operation of the system. The Licensor shall keep these financial records and information confidential, except to the extent that disclosure is necessary to resolve any dispute between the parties or to comply with the requirements of taxing or other governmental authorities. B. As continuing compensation for the License granted hereunder, and for the continuing obligation of Licensor to provide updates of the database, as required, Licensee shall pay to Licensor for each calendar month during the term hereof, on or before the       day of the following month, an amount equal to       percent (       %) of Licensee’s Net Billings as they are received. The term Net Billings means Licensee’s total Gross Billings to customers less (i) sales or other taxes charged on the service provided (but not any taxes based on Licensee income), (ii) refunds to customers, (iii) commissions to customers, and (iv) other actual expenses incurred on behalf of customers, but without any other deductions, set-offs, or credits whatsoever. The term Gross Billings means all income received by Licensee from the use of the Software and Documentation in the operation of the business from every source and however denominated. However, Gross Billings does not include unrelated business income, such as, interest on investments or dividends on securities used to hold surplus cash. IV Licensing Territory. As used herein, the term Licensing Territory shall mean             . V. Items to Be Delivered. The following items, and no others, shall be deliverable by Licensor, as part of the initial setup and services, on or before the scheduled delivery date of: A. Licensed programs (the Software ), Documentation, and appropriate database for the Licensing Territory, uniquely configured for Licensee's equipment and with a database current as of the effective date of this Agreement, or more recently, if available. The Software licensed is known as       in (Name) substantially the form described in the Operational Description in the Documentation provided to Licensee, as the said Software may be changed by Licensor from time to time. B. Listing of suggested equipment and procedures for installation of the Software and equipment. C. Suggested business plan and method of operations, including suggested customer contract and other form for use in the business, based on the Software and Documentation and the database. Computer Software License Agreement and Data Base Update Agreement Page 2 of 6 Licensee understands that the obligation to order, purchase, and install the necessary equipment is that of the Licensee and its third party suppliers. The Software and the database cannot be installed or tested until all required equipment is on hand and in complete working order. Licensor shall have no liability for late or malfunctioning installations caused by late or nonworking equipment. Licensor is not engaged in providing or repairing equipment, and has no responsibility to Licensee for any of it. VI. Term and Termination. A. This Agreement shall run for five (5) calendar years, commencing on       . As long as the Agreement is not terminated by either party by (Date) reason of the default of the other party during the first five year term, the Agreement shall renew automatically for a second five (5) year term. After the expiration of the second five year term, the Agreement shall renew automatically from year to year unless one party shall give the other party written notice of nonrenewal at least six (6) months before the automatic renewal date of the Agreement. B. Recognizing that Licensee may elect to utilize this License through a partnership or subsidiary corporation in which Licensee is the controlling partner or the majority shareholder, Licensor hereby grants to Licensee (but not the Licensee's assignee) the limited right to assign this Agreement with its rights to use the Software and Documentation licensed hereunder to any business entity of which Licensee is and continues to be a controlling partner or majority shareholder (the Assignee), for operations within the Licensing Territory. 1. Licensee shall continue to be liable for all sums due from the Assignee and no failure on the part of the Assignee to make payments due to Licensor shall relieve Licensee from its individual obligation to make said payments. The bankruptcy or insolvency of the Assignee or of the Licensee itself shall be cause for immediate termination of this License, and should Licensor be unable to terminate the License because of the provisions of the United States Bankruptcy Laws, then the trustee or other party in possession of the Software and Documentation shall be obligated to protect the trade secret status of the said information by executing a trade secret agreement or returning any source code and internal documentation which it may possess to Licensor immediately upon request. The Assignee holding this License under any assignment shall have no authority whatsoever to further assign or to sublicense this License or any Software and Documentation and on termination or liquidation of the Assignee, the assignment shall automatically terminate and all the rights granted in this License shall be re-vested in Licensor. 2. If at any point Licensee ceases to be the controlling partner or majority shareholder of the Assignee, then Licensor may, but need not, require the termination of any assignment. If Licensor requires the termination of the assignment under this provision, said assignment shall by itself terminate with no further action on the part of Licensor, and the License shall be deemed reassigned to Licensee. Computer Software License Agreement and Data Base Update Agreement Page 3 of 6 3. During the tenth (10th) year, and each year thereafter, a party not intending to renew the License for the eleventh (11th) or a successive year shall give at least six (6) months written notice to the other party. Should Licensor decide not to continue to license the Software and Documentation and to update the database after tenth year for any reason other than a default by Licensee, the Licensee shall be entitled to continue the License at a reduced royalty and to maintain the Software and Documentation and the database itself under the terms of the Software Escrow and Nondisclosure Agreement between Licensor and Licensee, a copy of which is attached hereto as Exhibit A (the Escrow Agreement ). If Licensee provides its own maintenance under this provision of the Agreement, the royalty to be paid for all subsequent years shall be that required hereunder, less the actual cost of maintaining the Software and Documentation and the database incurred by Licensee. However, in no case shall the monthly royalty fee be less than ( e.g., 75%) of the royalty fee that would otherwise be payable if Licensor was still providing full maintenance services. All the other terms of the License shall continue to apply if Licensee elects to continue this License for years beyond the tenth year. Licensee shall indemnify Licensor from all claims that result from any copyright or other infringements of third party rights or from any errors or malfunctions that occur after Licensee has elected to provide its own Software and Documentation maintenance and database update services. 4. After the end of the tenth year of the Agreement, Licensee shall have the option to make a lump sum payment in place of all future royalty obligations. The lump sum required shall be fifty percent of total royalties and fees paid by Licensee under this Agreement during the ( e.g. five ) years preceding Licensee’s election to make the lump sum payment. If Licensee elects this option, Licensee shall be required to provide all future maintenance for the Software and Documentation and the database itself under the terms of the Escrow Agreement. The entire lump sum shall be due and payable to Licensor at the time that the election is made. C. Neither party to this Agreement shall be liable by reason of termination of this Agreement to the other for compensation, reimbursement, or damages on account of any loss of prospective profits on anticipated sales or on account of expenditures, investments, leases, or other commitments relating to the business or goodwill of either party, notwithstanding any law to the contrary. D. Notwithstanding the foregoing term, Licensor may terminate this Agreement as of the thirtieth (30th) day after written notice of default to Licensee, if the default is not cured by that date. Regardless of the basis for termination, the Installation and Setup Fee shall be nonrefundable in its entirety, and the Service Fee shall be payable, as scheduled, for all revenues accrued or accruable on Licensee’s books through the actual termination date. E. Licensor has made provision for Licensee and its permitted assigns to have access to the software source code and the required database software in the event Licensor or his successors are not able to provide the software and database update services required Computer Software License Agreement and Data Base Update Agreement Page 4 of 6 by this Agreement. This access has been provided for under the separate Escrow Agreement, referred to above. VII. Taxes and Government Licenses. Licensee agrees to pay, upon demand, any and all sales, use, or other similar tax which may be assessed on Licensor by any governmental agency on any aspect of the transaction contemplated hereby. Licensee shall be solely responsible for procuring and maintaining any license or franchise required to operate the business in which the Software and database are used. VIII. Indemnity. Licensee, and its permitted Assignees, if any, agrees that they, jointly and severally, if more than one individual or entity, shall indemnify and hold Licensor harmless from any and all liability and claims against Licensor by anyone, which arise out of or in connection with the use of the Software and the database contained therein in the operation of Licensee's business. The indemnity shall include all costs, attorney fees, and damages which Licensor is required to pay by reason of litigation or claims against Licensor for such reason. Licensor shall have the right to retain, at Licensee's cost, legal counsel of Licensor's selection for the purpose of defending such claims, but no settlement of any such claim IX . 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. X. 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. XI. Governing Law . This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of       . (Name of State) XII. 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. XIII. Mandatory Arbitration . Notwithstanding the foregoing, and anything herein to the contrary, 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. XIV. Entire Agreement. This Agreement shall constitute the entire agreement between the Computer Software License Agreement and Data Base Update Agreement Page 5 of 6 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. XV. 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. XVI. 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. XVII. 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. WITNESS our signatures as of the day and date first above stated.             (Name of Licensor) (Name of Licensee) By: By: (Signature of Officer) (Signature of Officer)             (P rinted Name & Office in Corporation) (P rinted Name & Office in Corporation) Attach Exhibit A Computer Software License Agreement and Data Base Update Agreement Page 6 of 6