Fill and Sign the Software License Agreement for Desktop Edi Software Form

5.10[2] Software License AgreementSOFTWARE LICENSE AGREEMENT FOR DESKTOP EDI SOFTWARE (Exhibit A to Pre-Development Marketing Agreement) This Software License Agreement (this License) by and between ____________, with a place of business at ____________ (Developer), and the following Customer: Name: ______________________________________________ Contact Person: ____________________________________ Contact Person Phone: ______________________________ Address: ___________________________________________ ____________________________________________________ ____________________________________________________ 1. Recitals. (1) Developer owns computer software and related products for effecting electronic data interchange transactions (as further defined below and in Appendix 1 hereto, "Licensed Software"). (2) Customer wants rights to use Licensed Software. 2. Definitions. 2.1. "Customer machine" means a machine, all of which is under the complete, direct legal and physical control of Customer. 2.2. "Licensed Software" means all or any part of the computer programs for which an Order exists, including, without limitation, (1) any related instructions or statements in machine-readable form, including source code; (2) any related databases in machine-readable form; (3) any related materials, including documentation and listings, whether in machine-readable or printed form; (4) any Derivative Software; and (5) all copies of the foregoing. 2.3. "Machine" means a computer, together with all input, output, transmission, memory and other components necessary for the functioning thereof. 2.4. "Object code" means compiled source code. 2.5. "Permitted Use" has the meaning set forth in Section 3. 2.6. "Software specifications" mean the description of the function and performance of, and the required operating environment for, Licensed Software contained in the standard documentation thereto. 2.7. "Source code" means all or any part of the machine-readable (but including transcriptions or other representations thereof, in tangible or intangible form, and on any media whatsoever), uncompiled (but otherwise regardless of format) instruction set, the totality of which permits operation of Licensed Software, as same may be modified by Customer pursuant to this License. 2.8. "Use," including any form of such word as a noun or a verb, as relates to Licensed Software, means (1) copying of same into a machine for processing; (2) storing of same in a machine; (3) transmission of same through a machine; (4) display of same on a machine; and/or (5) processing of same by a machine. 3. License. Developer hereby grants Customer the nontransferable and nonexclusive license to do the following (Permitted Use):3.1. Use. Use each copy of Licensed Software on one (1) customer machine. 3.2. Copies. Copy Licensed Software only for purposes of back-up and disaster recovery. 3.3. Printed Materials. Utilize the printed portion of Licensed Software to support the use of computer programs described in this Section 3. 3.4. Internal Requirements. Permitted Use is limited to use of Licensed Software for Customer's internal business requirements and does not include use of Licensed Software to process third party data. 3.5. License Limitations. This License will not provide Customer any rights to (1) any source code; (2) any pre-commercial release software; (3) services; or (4) receive automatically updates or upgrades to Licensed Software. 4. Title. Title and ownership rights to Licensed Software remain with Developer and its applicable licensors. This License does not transfer Developer's title to Licensed Software. 5. Orders. Customer may request Licensed Software by submitting to Developer a purchase order therefor which references this License. All purchase orders (1) are non-cancelable after shipment of related Licensed Software by Developer; (2) must bear a current date; (3) must be scheduled for delivery by three (3) months following the date thereof; and (4) are subject to Developer's written acknowledgment and acceptance. 6. Fees and Payment. Fees for Licensed Software will be as stated in Appendix 1, or if not so stated then in the related Order, or if not so stated then as stated in the related invoice. Fees due under this License will include, whether or not specified in the applicable writing (1) all taxes for which Developer is liable (either directly or as collection agent) arising from Customer's license or use of Licensed Software, other than taxes based on Developer's net income; and (2) duties and taxes applying to shipment of Licensed Software to any non- U.S. destinations. Customer will pay fees due hereunder within thirty (30) days following its receipt of Developer's invoice therefor. Developer will issue invoices no earlier than the date Licensed Software is shipped. Past due fees will bear interest at a rate of one percent (1%) per month, or at the maximum rate allowed by law, whichever is less. 7. Delivery. Developer will arrange delivery of Licensed Software to Customer, and Developer will pay related shipping and insurance charges, other than duties and taxes on shipments to non-U.S. destinations. Risk of loss or damage to Licensed Software will pass to Customer upon delivery to Customer. Shipping dates acknowledged by Developer are estimates. Computer programs constituting Licensed Software will be delivered in machine-readable form and will include standard documentation. 8. Acceptance Period. Customer will have thirty (30) days after the initial delivery of any Licensed Software (the Acceptance Period) to decide reasonably whether Licensed Software meets its expectations. If Licensed Software does not meet Customer's expectations, then Customer will notify Developer of rejection and return the rejected Licensed Software to Developer within ten (10) days after the Acceptance Period ends. If Customer does so, Developer will repay Customer all that it has paid Developer for the rejected Licensed Software within thirty (30) days of Developer's receipt of the rejected Licensed Software. If Customer does not reject in this way and on time, Licensed Software will be deemed accepted. 9. Security. 9.1. Licensed Software. 9.1.1. Use. Customer, its employees and agents will only engage in Permitted Use of Licensed Software. 9.1.2. Distribution. Customer will not distribute Licensed Software to persons other than its employees as required for Permitted Use in the normal course of their employment. 9.1.3. Access. Customer will restrict access to Licensed Software to those persons who require such access for Permitted Use and who have agreed with Customer to protect the confidentiality and trade secret status of Licensed Software. 9.1.4. Notice. All copies of Licensed Software made by Customer will contain sufficient notice of Developer's ownership thereof; such notice will be deemed to be sufficient if it consists of a reproduction of such notices contained in the copies provided by Developer. 9.1.5. Media. Customer will erase or destroy any copy of Licensed Software on any media before the disposal of such media by or for Customer. 9.2. No Reverse Engineering of Object Code. Customer, its employees and agents will not attempt to reverse engineer any of the Licensed Software provided in object code form. 10. Warranty. 10.1. Sufficient Right. Developer represents and warrants that it has the right to grant Customer the rights to Licensed Software contained in this License. 10.2. Performance. For one (1) year following acceptance of Licensed Software pursuant to Section 8, Developer represents and warrants that Licensed Software will perform substantially the functions described in the standard documentation accompanying same if properly used in accordance with the software specifications. 10.3. NO OTHER WARRANTIES. DEVELOPER AND ITS LICENSORS MAKE NO OTHER WARRANTY FOR ANY PRODUCTS OR SERVICES. THE WARRANTIES IN THIS SECTION 10 ARE INSTEAD OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY OTHER WARRANTY OBLIGATION OF DEVELOPER OR ITS LICENSORS. 11. Remedies. 11.1. Patents and Copyrights. 11.1.1. Developer Indemnification. Developer will indemnify Customer from any action brought against Customer to the extent that it is based on a claim that Licensed Software infringes any duly issued patent or any copyright in the United States. Developer's indemnity obligations will not extend to (1) infringement arising out of unauthorized use of Licensed Software; (2) a modification of Licensed Software made after delivery to Customer by persons other than Developer employees or contractors; (3) the combination, operation, or use of Licensed Software with programs or data not provided Customer by Developer under this License if such infringement would be avoided by the combination, operation or use of Licensed Software with other programs or data; or (4) items delivered by Developer in performance of services under this License to the extent that the alleged infringing portion of such items is derived from Customer's specifications. 11.1.2. Method. Developer will pay all damages and costs attributable to an action subject to Section 11.1.1 finally awarded against Customer, provided that Developer is promptly informed in writing and furnished a copy of each communication, notice or other action relating to the alleged infringement and is given authority, information and assistance (at Developer's expense) necessary to defend or settle such claim. 11.1.3. Right to Cure. Should any Licensed Software become, or in Developer's opinion be likely to become, the subject of a claim of infringement subject to Section 11.1.1, then Developer may at its option (1) obtain for Customer the right to use that Licensed Software free of any liability for infringement; (2) replace Licensed Software with noninfringing substitute items complying substantially with all the requirements of this License (which items will, upon such replacement, become Licensed Software); or (3) refund the license fee paid by Customer for the infringing Licensed Software, less a charge for the value of Customer's prior use of Licensed Software based upon a five- (5-) year depreciation schedule, and accept return of the infringing Licensed Software. 11.1.4. SOLE REMEDY. THE FOREGOING INDEMNITY OBLIGATIONS ARE EACH PARTY'S SOLE LIABILITY AND SOLE REMEDY FOR INFRINGEMENT OF PATENTS AND COPYRIGHTS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. 11.2. Software Performance-Related Claims. In all situations involving performance or nonperformance of Licensed Software, Developer will attempt to make Licensed Software operate as warranted. If, after repeated efforts, Developer does not provide such a remedy, Customer will be entitled to recover actual damages to the limits set forth in Section 12. 11.3. Other Claims. For claims concerning breach by Developer of sections of this License other than Section 10, Customer will be entitled to recover actual damages to the limits set forth in Section 12. 12. Liability Limitations. Developer's liability for actual damages from any cause whatsoever will be limited to the consideration received by Developer from Customer under this License. This limitation will apply, except as otherwise stated in this Section 12, regardless of the form of action, whether in contract or in tort, including negligence. This limitation will not apply to the payment of costs, damages and attorneys' fees referred to in Section 11.1.1. In addition, this limitation will not apply to claims by Customer for bodily injury or damage to real property or tangible personal property for which Developer is legally liable.12.1. Liability Exclusions. In no event will Developer be liable for any damages caused by Customer's failure to perform under this License. Developer will not be liable for any loss of profits, loss of data, loss of business or indirect, incidental, consequential or punitive damages, even if Developer has been advised of the possibility of such damages. Developer will not be liable for any damages claimed by Customer based on any third party claim. However, the exclusions described in this Section 12.1 will not apply to the payment of costs, damages and attorneys' fees referred to in Section 11.1.1. 12.2. Developers' Liability. The limitations and exclusions of liability described in this Section 11 also apply to the liability of any third party developers supplying Licensed Software to Developer. The limitations of remedies applicable to Developer and such developers are not cumulative. Such developers are intended beneficiaries of this Section 12.2. 12.3. Adequate Consideration. Customer hereby agrees and acknowledges that (1) Licensed Software would not be made available to it by Developer for the consideration given by Customer but for the limitations of remedies contained in Sections 11 and 12; (2) the rights it has obtained to Licensed Software pursuant to this License in exchange for the limitations of remedies contained in Sections 11 and 12 and the other consideration given by Customer forms a bargain that is fair and reasonable to the parties; and (3) Customer made this bargain without coercion or the threat thereof from any person. 12.4. Injunctive Relief. Customer understands and agrees that (1) violation in any material respect of any of the provisions of this License by Customer will cause immediate and irreversible harm to Developer; (2) Developer in such event will have no adequate remedy at law; and (3) Developer in such event will be entitled to immediate restraint, and preliminary and other injunctive relief, without any requirement to post bond, against any violation of this License by Customer. Any injunctive relief sought by Developer will be in addition to, and in no way in limitation of, any remedies or rights to recover damages that Developer may have at law or in equity for the enforcement of this License. 13. Compliance with Laws. Customer agrees to comply with all applicable federal, state and municipal statutes, ordinances, rules and regulations, including, without limitation, the rules and regulations under the U.S. Export Administration Act and the U.S. Foreign Corrupt Trade Practices Act, as the same may be amended from time to time. Without in any way limiting the foregoing, Customer will not export or otherwise remove Licensed Software from the United States of America or Canada, either directly or indirectly, without the consent of Developer and without first obtaining any licenses or approvals as may be required from the U.S. Department of Commerce and any other applicable agency or department of the United States Government. 14. Sublicense. Customer may not sublicense, transfer or assign this License, by operation of law, by merger or otherwise. Any attempt so to sublicense, assign or transfer any of the rights, duties or obligations under this License is void from inception. 15. Customer's Duties. Customer accepts the responsibility for (1) selection of Licensed Software to achieve its intended results; (2) the installation of Licensed Software (except to the extent Customer purchases installation support from Developer under this License); (3) the use of Licensed Software; (4) the results obtained from Licensed Software; and (5) the selection and use of, and the results obtained from, any other computer software, machines or services used with Licensed Software and not provided by Developer under this License. 16. Advertising. Customer agrees to include in all its promotional literature and other advertising in which the capabilities of Licensed Software are explicitly or implicitly mentioned or referred to a phrase indicating by product name that Licensed Software is a proprietary software product of Developer and that the product name is a trademark of Developer. Customer hereby grants Developer permission to use Customer's name as a commercial reference regarding Customer's use of Licensed Software. 17. Termination. 17.1. License Term. The term of Customer's rights to any portion of Licensed Software granted hereunder will be as stated in this License or in the applicable Order therefor. If not so stated, such term will be perpetual. 17.2. Customer Notice. Customer may terminate this License upon one (1) month's written notice. 17.3. Breach. Either party may terminate this License for failure of the other to comply with the terms and conditions of this License. 17.4. Return of Copies. Upon the termination of this License, Customer will return to Developer or destroy, at Developer's option, all copies of Licensed Software. 17.5. Effect of Termination. Termination of this License with respect to any portion of Licensed Software will terminate all of Customer's rights to such Licensed Software granted hereunder and will prospectively terminate application of Section 10 to such Licensed Software. 18. Relationship of Parties. Developer, if furnishing services to Customer hereunder, will act only as an independent contractor. Developer does not undertake by this License or otherwise to perform any obligation of Customer, whether regulatory or contractual, or to assume any responsibility for Customer's business or operations. 19. Force Majeure. Except for any breach of Section 9, neither party will be liable for failure to perform any material obligation under this Agreement, if the failure is due to an event beyond its reasonable control. If such a failure happens, the affected party must notify the other party in writing of the fact and details of the event, and must take all reasonable steps necessary to resume performance of the affected obligation when reasonably possible under the circumstances. If such an event makes performance of the obligation commercially impractical or impossible, the parties will negotiate in good faith an equitable adjustment of the terms and conditions of the Agreement affected by the event. 20. License Controls. If there is a conflict between this License and any Order, or any exhibit or appendix attached hereto, this License will prevail. 21. Limitations on Actions. Developer may not bring an action, regardless of form, arising out of this License (1) for an action arising out of breach of the provisions of Section 9 more than six (6) years after such cause of action has arisen; or (2) for an action for nonpayment (including underpayment) more than two (2) years from the date the last payment was due, or was discovered by Developer to be due, whichever is later. No party may bring any other action, regardless of form, arising out of this License more than two (2) years after such cause of action has arisen. 22. Miscellaneous. 22.1. Waiver. No waiver of any breach of this License will form a waiver of any subsequent breach of the same or any other provision. 22.2. Severability. If any provision of this License is declared or found illegal, unenforceable or void, then all parties will be relieved of all obligations arising under such provision, but only to the extent that such provision is illegal, unenforceable or void, it being the intent and agreement of the parties that this License will be deemed amended by modifying the provision to the minimum extent necessary to make it legal and enforceable while preserving its intent or, if that is not possible, by substituting therefor another provision that is legal and enforceable and achieves the same objective. If the remainder of this License will not be affected by the declaration or finding and can be substantially performed, then each provision not so affected will be enforced to the extent permitted by law. 22.3. Entire Agreement. This License, together with all Orders and the exhibits and appendices attached to this License, if any, make up the entire agreement of the parties, superseding in all respects all prior proposals, negotiations, understandings and other agreements, oral or written, between the parties. 22.4. Amendment. This License may be amended only by a written instrument duly executed by the parties. 22.5. Notices. Any notice given pursuant to this License may be given by (1) personal delivery; (2) deposit in the United States mail, prepaid, return receipt requested; (3) deposit with a recognized courier company, prepaid, return receipt requested; or (4) facsimile transmission, in each case to the last address or number, as the case may be, of which the sending party has received actual or constructive notice. Any such notice will be deemed to be received (1) when delivered, if given pursuant to clause (1) of the previous sentence; (2) on the earlier of (a) the fourth day after deposit, or (b) the time delivery is verified, if given pursuant to clauses (2) or (3) of the previous sentence; or (3) when received, if given pursuant to clause (4) of the previous sentence. 22.6. Interpretation. Headings used in this License are for convenience only and will not be deemed to be operative text. Terms of gender will be deemed interchangeable, as will singular and plural terms, in each case unless the context otherwise requires. All monetary amounts used herein will be deemed to refer to current U.S. dollars, unless the context otherwise requires. 22.7. Applicable Law. This License will be governed by the internal law of the State of ________. 22.8. Jurisdiction. With respect to actions arising under this License, the parties hereby (1) submit to the jurisdiction of any state or federal court seated in _________, __________ and encompassing such city in its territorial jurisdiction; and (2) waive any claim that any such court is an inconvenient forum. 22.9. Further Assurances. The parties will perform all such further acts, provide such further documents or written assurances, and execute such further documents as they reasonably require or deem necessary to carry out the acts and transactions contemplated by this License. Developer and Customer have executed this License effective as of the latter of the dates entered below by the signature of their duly authorized representatives. Developer: Customer: _____________________________ ________________________ Signed: _____________________ Signed: ________________ Printed Name: _______________ Printed Name: __________ Title: ______________________ Title: _________________ Date: _______________________ Date: __________________ Appendix 1 to Software License Agreement for PC EDI Software 1. Licensed Software. Licensed Software will include the following: Description Number of CopiesPC EDI software 2. Pricing. Charges for Products are as follows: Description Due Date AmountLicense fee See Section 6 $Total N/A $