Fill and Sign the Software License Agreement Austin Peay State University Form

Software License Agreement, Page 1 SOFTWARE LICENSE AGREEMENT No. _____ THIS AGREEMENT is made by and __________________________________, ("_________________") and Licensee identified below. Licensee agrees to license from _________________, and _________________ by its acceptance and execution of this Agreement agrees to license to Licensee, on the terms and conditions containe d on both sides of this Agreement, the computer software and related documentation identified below (herei nafter referred to individually and collectively as the "Licensed Software"). DESCRIPTION PURCHASE PRICE SOFTWARE LICENSE FEE APPLICABLE TAX FREIGHT & INSURANCE TOTAL PRICE DOWNPAYMENT (50%) BALANCE DUE THE ADDITIONAL TERMS AND CONDITIONS ON THE REVERSE SIDE HEREOF ARE INCORPORATED IN AND MADE PART OF THIS AGREEMENT. LICENSEE ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS ALL TERMS AND CONDITIONS STATED ON BOTH SIDES OF THIS AGREEMENT, AND THAT THIS AGREEMENT, TOGETHER WITH ALL APPENDICES OR OTHER ATTACHMENTS, CONSTITUTES THE ENTIRE AGREEMENT BETWEEN _________________ AND LICENSEE AND SUPERSEDES ALL PROPOSALS, ORAL AND WRITTEN, BETWEEN THE PARTIES ON THIS SUBJECT. Accepted: Accepted: By: By: Title: Title: Date: Date: Software License Agreement, Page 2 1. NON-ASSIGNABLE LICENSE Licensee agrees that payment hereunder conveys to Licensee a non-exclusive, non- assignable license for the use of the Software solely for the following purposes: (a) to use in machine readable form on a single computer; (b) to make a single copy of the Software in any machine readable or printed form for backup or modification purposes in support of the Licensee's use of the Software on a single computer; (c) to modify the and/or merge the Software for the use on a single computer. (Any portion of the Software merged into another program will continue to be subject to the terms and conditions of this license); (d) make copies of designated _________________ Software Programs, object files only, for distribution to the Licensee's personnel and customers. LICENSEE, WHETHER THROUGH THE USE OF DISASSEMBLES OR ANY OTHER MEANS WHATSOEVER, INCLUDING BUT NOT LIMITED TO MANUAL, MECHANICAL, OR ELECTRICAL, SHALL NOT DERIVE SOURCE CODE FROM ANY OF THE SOFTWARE, OBJECT CODE, OR OTHER INFORMATION MADE AVAILABLE BY _________________ OR FROM ANY OTHER SOURCE WHATSOEVER. ANY ATTEMPT TO DO SO SHALL BE DEEMED A MATERIAL BREACH OF THIS AGREEMENT AND ANY AGREEMENT TO WHICH IT IS MADE A PART, AND NOTWITHSTANDING ANY PROVISIONS HEREIN OR IN ANY AGREEMENT TO WHICH THIS AGREEMENT IS MADE A PART TO THE CONTRARY, SHALL IMMEDIATELY ENTITLE _________________ TO ANY AND ALL OF _________________' REMEDIES HEREUNDER, OR SUCH REMEDIES THAT MAY EXIST AT LAW OR EQUITY. 2. PROPRIETARY RIGHTS AND INFORMATION PROTECTION . (a) Licensee recognizes that the Software licensed hereunder constitutes valuable trade secrets of _________________. Accordingly, Licensee agrees that it shall protect and hold in confidence all Software furnished to it by _________________. (b) Licensee agrees to notify _________________ immediately of the possession, use, or knowledge of Software or any other item or information furnished or made available to Licensee under this Agreement by any person or organization not authorized by this Agreement to have such possession, use or Knowledge. Licensee shall promptly furnish _________________ with full details of such unauthorized possession, use, or knowledge, if and to the extent known by Licensee, and shall take reasonable steps to prevent the reoccurrence of such possession, use or knowledge. _________________ shall have the sole and exclusive option to control and initiate any legal, equitable or administrative proceedings to protect _________________' rights in and to Software, including the licensing thereof. Licensee's compliance with this section shall not be deeme d Software License Agreement, Page 3 to derogate from any of _________________' legal or equitable remedies for breach of any other provision of this Agreement. Without waiving any legal remedy, _________________ may elect to seek equitable injunctive relief, it being acknowledged that _________________' remedy at law is inadequate. (c) The Licensee shall maintain accurate and up-to-date records of the number and location of all copies of the Software. The Licensee shall insure prior to disposing of any media, that any Software contained herein shall have been erased or destroyed and shall further keep records of such disposal. All of Licensee's records with regard to the Software shall be made available to _________________ at all reasonable times at _________________' request, and Licensee shall certify to the truth and accuracy thereof. Licensee agrees to notify _________________ immediately if any errors are discovered in such records, and to destroy or return any copies or originals of Software which Licensee is not currently authorized hereunder to possess. (d) A breach by the Licensee of any of the provisions of this Agreement pertaining to the Software and use thereof, or any unauthorized use of Software, shall entitle _________________ to terminate any and all existing licenses of Software to Licensee. Nothing herein shall be deemed to limit in any way _________________' remedies for Licensee's breach of this Agreement or any unauthorized use of Software. Licensee shall be liable to _________________ for any and all damages that _________________ may suffer by reason of such breach or unauthorized use, whether it is purposeful or not. A breach of this Agreement shall be deemed a breach of any agreement to which this Agreement may be a part. (e) All provisions of this Section shall survive termination of this Agreement, whether by expiration or otherwise. 3. SOFTWARE SPECIFICATIONS, COMPLETION AND ACCEPTANCE. (a) Licensee and _________________ shall agree to a custom or modified package Software specifications only, and upon agreement Licensee and _________________ shall execute and Licensee shall accept a Software Specifications Agreement in the form attached hereto as Rider A. _________________ shall then commence preparation and development of the customized or modified package Software in accordance with the Specifications. In the event that the Licensee and _________________ cannot reach a consensus with regards to the Software Specifications Agreement, and the particular custom or modified Software specifications thereunder, either party shall have the option to terminate this Agreement upon ten (10) days written notice to the other. Upon such termination, _________________ shall return the down payment to the Licensee less the costs of software services rendered to the Licensee, billed at _________________' then current hourly rate; and any specifications, programs or other materials theretofore supplied to Licensee shall be returned to _________________. (b) The Completion Date of the Software (the "Completion Date") shall be as follows: Software License Agreement, Page 4 (i) The date when _________________ can reasonably demonstrate to the Licensee that the custom or modified package Software meets the specifications in all material respects and is delivered to Licensee, or (ii) The date when the packaged software is delivered to Licensee. On the Completion Date, the Software shall be deemed completed and the Licensee cannot delay acceptance of the Software on the basis that Licensee's files or host system are not prepared if _________________ can reasonably demonstrate the Software's completion by using files that reasonably resemble Licensee's. 4. PAYMENT . (a) Licensee agrees to pay the listed license fee of the packaged Software set forth on the reverse side of this Agreement in the following manner: (i) Upon the execution of this Agreement, the Licensee shall pay a Software Downpayment in the amount of fifty percent (50%) of the total Licensed Software purchase price, and (ii) the remaining balance of the purchase price is due and payable on the Completion Date. (b) If the Licensee fails to remit full payment within ten (10) days of their due dat e, a late charge equal to one and one half percent (1½%) per month will accrue and be payable on the amount due. 5. LIMITED WARRANTY. (a) _________________ warrants that the Software will conform to the Specifications for a period of 90 days after the date of Completion and Delivery of the Software, or the date of Final Acceptance, whichever is later. However, this warranty shall be null and void unless _________________ receives full payment for the Software upon the date of Completion. In order for this Warranty to remain active, the Software must not include any changes made by anyone other than the authorized _________________ representative. In addition, _________________ warrants that the magnetic media on which the Software is recorded will be free from significant defects in materials and/or workmanship under normal use and service for a period of ninety (90) days from the date the Software is delivered to Licensee. If, during this ninety (90) day period, a significant defect in the media should occur, the media may be returned to _________________ at _________________'s address, and _________________ will replace the media without charge to the Licensee. Medias must be returne d postage prepaid and insured. _________________ will not accept medias that have been sent C.O.D. (b) _________________ warrants that it has full authority to grant the rights granted by this Agreement to Licensee with respect to Software without the consent of any other person; and that neither the performance of Services by _________________ nor the license to and use by the Licensee of the Software and Documentation will in any way constitute an infringement or other violation Software License Agreement, Page 5 of any copyright, trade secret, trademark, patent, invention, proprietary information, nondisclosure or other rights of any third party. (c) _________________ warrants that Software, its license to and use by Licensee, and the performance by _________________ of Services, shall be in compliance with all applicable laws, rules and regulations. (d) EXCEPT FOR THE WARRANTIES SET FORTH ABOVE, THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. _________________ DOES NOT WARRANT THAT THE FUNCTION CONTAINED IN THE PROGRAM WILL MEET THE REQUIREMENTS OF THE LICENSEE OR THAT THE OPERATION OF THE PROGRAM WILL BE UNINTERRUPTED OR ERROR FREE. LICENSEE ASSUMES RESPONSIBILITY FOR THE INSTALLATION, USE AND THE RESULTS OBTAINED FROM THE PROGRAM. 6. LIMITATIONS OF REMEDIES . (a) If within the 90 day warranty period described in paragraph 4(a) above, the Software fails to conform to the required specifications, _________________' sole responsibility, and the Licensee's sole and exclusive remedies under this Agreement shall be as follows: (i) _________________ shall modify or replace Software as delivered to Licensee so that the modified or replaced Software conforms to the required specifications; however, in no event shall the cost of _________________' effort to conform the Software to the required specifications or to modify or replace the Software exceed the purchase price of the Software, or (ii) If _________________ elects not to modify or replace the software, Licensee shall return the Software to _________________ and _________________ shall promptly refund to Licensee the purchase price of the Software. The parties expressly agree that it is Licensee's responsibility to test all delivered application Software for errors or defects and to report them promptly to _________________ within the 90 day warranty period. The parties agree that the remedies provided in this paragraph are the Licensee's sole and exclusive remedies against _________________ under this Agreement. (b) IN NO EVENT WILL _________________ BE LIABLE TO LICENSEE FOR ANY DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE BY THE LICENSEE OR A CUSTOMER OF THE LICENSEE; EVEN IF _________________ HAS BEEN ADVISED BY THE LICENSEE OF THE POSSIBILITY OF SUCH DAMAGES, OR ANY CLAIM BY A CUSTOMER OF THE LICENSEE . Software License Agreement, Page 6 7. ARBITRATION.Except in the event of non-payment by Licensee of invoices, or a violation by Licensee of paragraph 2 of this Agreement, for which _________________ will have remedies in law and in equity, any controversy between the parties hereto involving the construction or application of any terms, covenants, or conditions of this Agreement, or any claim arising out of or relating to this Agreement will, on the request of one party served upon the other, be submitted to arbitration in accordance with the following provisions: (a) Any such dispute, controversy, or claim will be settled by arbitration in the City of _________________ in accordance with the rules of the American Arbitration Association then in effect and will comply with the laws of the State of _________________, except as herein specifically stated, and judgment upon the reward rendered by the arbitrators may be entered in any court having jurisdiction thereof. The parties hereby submit to the in personam jurisdiction of the Superior Court of the State of _________________ for the purpose of confirming any such award and entering judgment thereon. Notwithstanding anything to the contrary that may or may not hereafter be contained in the rules of the American Arbitration Association, the parties agree as follows: (i) Each party will appoint one person who is knowledgeable in the data processing area and familiar with the data processing industry to hear and determine the dispute within twenty (20) days after receipt of notice of arbitration from the noticing party. The two persons so chosen will select a third impartial arbitrator and their majority decision will be final and conclusive upon both parties hereto. If either party fails to designate its arbitrator within twenty (20) days after the notice provided for herein, then the arbitrator designated by the one party will act as the sole arbitrator and will be deemed to be the single, mutually approved arbitrator to resolve the controversy. In the event the parties are unable to agree upon a rate of compensation for the arbitrators, they will be compensated for their services at a rate to be determined by the American Arbitration Association. (ii) The costs of the arbitration will be borne by the losing party or will be allocated between the parties in such proportions as the arbitrators decide. (iii) The arbitrators will, upon the request of either party, issue a written opinion of their findings of fact and conclusions of law. (iv) Upon the receipt by the requesting party of said written opinion, said party will have the right within ten (10) days to file with the arbitrators a motion to reconsider the issues raised by said motion and either confirm or change their majority decision, which will then be final and conclusive upon both parties hereto. The costs of such a motion for reconsideration and written opinion of the arbitrators will be borne by the moving party. (v) The parties further agree that arbitration proceedings must be instituted within one year after the claimed breach occurred, and that failure to institute arbitration proceedings within such period shall constitute an Software License Agreement, Page 7 absolute bar to the institution of any proceedings and a waiver of all claims. 8. GENERAL PROVISIONS. (a) SEVERABILITY . In the event that one or more of the provisions or part thereof in this Agreement or of any Schedules, Exhibits, or Attachments attached hereto shall, for any reason, be held to be unenforceable in any respect by a court of competent jurisdiction, such un-enforceability shall not affect any other provision or part thereof of this Agreement, but this Agreement shall be construed as if such unenforceable provision(s) had never been contained herein. The remaining provisions shall be given effect in accordance with their manifest intent. (b) WAIVER AND SURVIVAL. The failure of either party to insist in one or more instances upon strict performance of the covenants of the Agreement, or to exercise any option herein contained shall not be construed as a waiver, or relinquishment for the future, of such covenant or option, but the same shall remain and continue in full force. (c) GOVERNING LAW. This Agreement shall be governed in all respects by the laws of _________________. The parties agree to submit to the personal and exclusive jurisdiction of the federal and state courts of the State of _________________ with respect to any dispute arising out of this Agreement. (d) ASSIGNMENT. Licensee may not sublicense, assign or transfer this Agreement without the prior written consent of _________________. Any attempt to sublicense, assign or transfer any of the rights, duties or obligations without the prior written consent of _________________ is void. (e) INABILITY TO PERFORM. _________________ will not be liable for any delay or failure to perform any part of this Agreement on the account of an Act of God, Fire, Labor disputes of any nature, inevitable accident, insurrection or other cause beyond _________________' control. (f) CONTINUING OBLIGATIONS. Any obligation or duty, including but not limited to financial obligations which, by their nature, extend beyond the expiration or termination of this contract, shall survive any expiration or termination and remain in effect. (g) ACKNOWLEDGMENT. Licensee acknowledges that it has read this Agreement, understands it, and agrees to abide by it's terms and conditions. (h) HEADINGS. The headings of the several Articles herein are inserted for convenience in reference only and are not intended by the parties to be part of or to affect the meaning or interpretation of this Agreement. (i) ENTIRE AGREEMENT. THIS AGREEMENT, TOGETHER WITH ALL APPENDICES, RIDERS, EXHIBITS OR OTHER ATTACHMENTS REFERENCED HEREIN, CONSTITUTES THE ENTIRE AGREEMENT BETWEEN _________________ AND THE LICENSEE AND SUPERSEDES ALL PROPOSALS, ORAL AND WRITTEN, BETWEEN THE PARTIES ON THIS SUBJECT.