Fill and Sign the Software License Agreement on a Per Database Instance Form

10.22 Software License Agreement on a per Database Instance AGREEMENT made this ___ day of ____________, 20____ (the "Effective Date") by and between Vendor, Inc., having offices at ______________________ ("Vendor"), and the licensee identified below ("Licensee"). Licensee Information: Licensee Name:________________________________________________________________ Address:_____________________________________________________________ City:____________________ State:___________________ Zip:_____________ Contact:_____________________________________________________________ E-mail:______________________________________________________________ Designated Site:____________________________________________________ Program: _______, version ___, for ____ release version _____ Equipment (as specified in Exhibit A) provided by Vendor (Y/N): _____ Authorized Use:The maximum number of Database "instances" with which the Program may be used during the term of Agreement: 1 A "Database" shall mean a set of related data that is stored and managed together as a unit by a database management system. An "Instance" shall mean a single copy of a running program. License Fee and Equipment Fee: Amount due Payment Terms License Fee:________________ Amount of Total due on Effective Date60% $_________ Equipment Fee: (if Equipment is provided by Vendor) ________________ Amount of Total due on Delivery Date (as defined in Section 1)30% $_________ State and Local Taxes:$___________ Amount of Total due on Installation Date (as defined in Section 1) 10% $_________ Total: $___________ The parties hereto have read and agree to the terms and conditions attached hereto, which terms and conditions are incorporated in full in this Agreement. This Agreement shall be effective as of the Effective Date only when executed below by both parties. Licensee: ____________________ Vendor, Inc. ____________________By: _______________________ By: _______________________Name: _______________________ Name: _______________________ Title: _______________________ Title: _______________________ TERMS AND CONDITIONS Installation. Vendor shall deliver the Program and Documentation, as such terms "Program" and "Documentation" are defined in Section 2, to the Designated Site identified on the cover page hereof ("Delivery", the date of completion of Delivery, the "Delivery Date") and install the Program on Licensee's system on a mutually agreeable date and time during Vendor's regular business hours ("Installation", the date of completion of Installation, the "Installation Date"). In the event that Licensee has not elected to purchase the Equipment (as defined in Section 4) from Vendor, as reflected and described on the cover page hereof, Licensee shall be responsible for procuring and preparing the Equipment, in accordance with the specifications provided by Vendor, and to have such Equipment at the Designated Site on the scheduled date and time of Installation. If the Equipment is not so prepared, additional fees may apply. Installation will include installation of portions of the Program on the Equipment and portions of the Program (i.e., driver software) on Licensee's systems. Installation shall not include configuration of the Program, for which Licensee shall be solely responsible as directed in the Documentation. On the date of completion of Installation, Vendor shall provide, and Licensee shall sign, a certificate of completion of Installation (the "CCI"), signature of which shall constitute Licensee's acceptance of the Program ("Acceptance"). In any event that Licensee uses any portion of the Program in a production environment, Acceptance will be deemed to have occurred. Subject to Section ___ and ___, the date of Licensee's Acceptance shall be referred to herein as the "Acceptance Date." License. Subject to the terms and conditions set forth in this Agreement, including Licensee's payment of the License Fees set forth on the cover page hereof, Vendor grants to Licensee a limited, non-exclusive, non-assignable, non- transferable, non-sublicensable, internal-use-only license (the "License") to use the software Program identified on the cover page hereof (the "Program"), and the associated delivered documentation (the "Documentation"), in connection with the number of Database Instances set forth on the cover page hereof. The Program will be provided and licensed to Licensee in executable object code form only. The License shall commence on the Acceptance Date and shall continue perpetually unless and until this Agreement is terminated pursuant to its terms. Use of Program and Documentation. The Program and Documentation may be used only by Licensee's employees and only for Authorized Use (as identified on the cover page hereof), and only at the Designated Site identified on the cover page hereof. In the event that Licensee desires to relocate the Program to an alternative site, Licensee shall provide prior written notice of such relocation and identification of such new site to Vendor, and in no event shall Vendor be responsible for any damage that is caused during such relocation, nor for any installation difficulties or non-conformance with surroundings at the new site, whether or not the Program is under warranty. Licensee may only use the Program and Documentation for Licensee's internal business use and not in the operation of a service bureau or for the benefit of any other person or entity. Licensee may only make one copy of the Program and Documentation as necessary for bona fide backup or archival purposes. No identifying marks, copyright or proprietary right notices may be deleted from any copies of the Program or Documentation made by Licensee. Licensee shall not modify, translate, decompile, or create or attempt to create, by reverse engineering or otherwise, the source code from the object code supplied hereunder, or adapt the Program in any way or use it to create a derivative work. Equipment. In the event that Licensee has elected to purchase the Equipment from Vendor, as reflected and described on the cover page and Exhibit A hereof (the "Equipment"), in consideration for the Equipment Fee set forth on the cover page hereof, Vendor shall deliver, or cause to be delivered, the Equipment to Licensee prior to or along with its Delivery of the Program pursuant to Section 1. Any third party software provided with the Equipment shall be subject to third party license agreements provided therewith. LICENSEE ACKNOWLEDGES THAT THE EQUIPMENT IS A THIRD PARTY PRODUCT AND THAT VENDOR MAKES NO WARRANTY WHATSOEVER WITH RESPECT THERETO. Instead, Licensee shall have the right to pursue enforcement of any applicable warranties and guarantees directly from the third party vendor of the Equipment. For the avoidance of doubt, the warranty set forth in Section 10(A) shall not apply to the Equipment. The Equipment Fee is non-refundable. Training. Vendor shall provide the following training services, pursuant to the terms hereof: Upon completion of Installation, Vendor shall provide one (1) training session, not to exceed one working day following Installation completion, for up to three (3) individual personnel of Licensee regarding the general usage and configuration of the Program. Additional training, or training on a date other than the Installation completion date, may be provided at Licensee's request, subject to Vendor's availability, at Vendor's then-standard applicable rates. Payment. Licensee shall pay the License Fee and Equipment Fee (if any) as indicated on the cover page hereof, payable on the date of invoice. Without derogation from any other right of Vendor, if Licensee fails to pay any amount by its due date, Licensee shall pay late charges of ___ percent (___%) per month on all outstanding amounts due, together with all of Vendor's expenses and collection costs, including reasonable attorneys' fees, incurred in enforcing this Agreement. Licensee shall reimburse Vendor for any out-of-pocket expenses incurred in connection with providing services hereunder, including, without limitation, telephone, shipping and insurance. Payments shall be made in U.S. currency. Any rate of exchange which may be applicable to payments due or other monetary calculations for purposes of this Agreement shall be the rate last published by the Wall Street Journal on the Effective Date. Proprietary Rights. Licensee acknowledges that the Program and Documentation are the sole and exclusive property of Vendor or Vendor's licensors, as applicable, including all applicable rights to patents, copyrights, trademarks, trade secrets and other intellectual property rights inherent therein or appurtenant thereto. Licensee agrees and acknowledges that Vendor retains Vendor's rights and title in and to the Program and Documentation and any copies thereof. Licensee is not purchasing title to the Program or Documentation or copies thereof, but rather is being granted only a license to use the Program and Documentation subject to the terms hereof. All rights not expressly granted to Licensee herein are reserved to Vendor. Confidentiality. Licensee shall not sell, transfer, publish, disclose, display or otherwise make available any portion of the Program or Documentation (including, without limitation, the Program's technology, code and algorithms) to others, except to its employees, contractors and agents on a need-to-know basis, nor may Licensee outsource the use of the Program without Vendor's written consent. Licensee agrees to maintain the confidentiality of the Program and Documentation using at least as great a degree of care as Licensee uses to maintain the confidentiality of Licensee's own most confidential information, and in no event less than a reasonable degree of care. Licensee shall ensure that its employees, contractors and other agents who have access to the Program and Documentation are made aware of, and agree to, the obligations set forth in this Section 8. Licensee shall use its best efforts to assist Vendor in identifying and preventing any unauthorized use, copying or disclosure of the Program or Documentation, or any portion thereof, or any of the technology, code, or algorithms thereof. Without limitation of the foregoing, Licensee shall advise Vendor immediately in the event Licensee learns or has reason to believe that any person to whom Licensee has given access to the Program or Documentation, or any portion thereof, has violated or intends to violate the confidentiality of the Program or Documentation or the proprietary rights of Vendor, and Licensee will, at Licensee's expense, cooperate with Vendor in seeking injunctive or other equitable relief in the name of Licensee or Vendor against any such person. Licensee acknowledges that the disclosure of any aspect of the Program or Documentation, any other confidential information referred to herein, or any information which, at law or equity ought to remain confidential, will immediately give rise to continuing irreparable injury to Vendor inadequately compensable in damages at law, and Vendor is entitled to obtain immediate injunctive relief against the breach or threatened breach of any of the foregoing confidentiality undertakings, in addition to any other legal remedies which may be available. In addition, Vendor may immediately terminate this Agreement, including all license rights granted herein, in the event Licensee breaches any of its confidentiality obligations regarding the Program or Documentation, or otherwise infringes or misappropriates Vendor's or its affiliate's intellectual property rights. Indemnity. Licensee will, at its own expense, defend, indemnify and hold harmless Vendor and its affiliates from and against any action brought against Vendor or its affiliates, to the extent that such action is based on or arises from: (i) Licensee's misuse of the Program or Equipment, (ii) any personal injury or death occurring at Licensee's premises, (iii) Licensee's breach of any representation, warranty or obligation under this Agreement, or (iv) any content of Licensee's databases, including, without limitation, content which: (a) is false, fraudulent, inaccurate or misleading; (b) infringes any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (c) violates any law, statute, ordinance or regulation; (d) is defamatory, trade libelous, unlawfully threatening, unlawfully harassing or obscene; or (e) contains any viruses, trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information. Warranty. (A) Vendor warrants for a period of ninety (90) days after the Acceptance Date (the "Warranty Period") that the Program, in its unmodified state as installed by Vendor, will perform substantially in accordance with the Documentation. Should the Program, in its unmodified state as installed by Vendor, not perform substantially in accordance with the Documentation during the Warranty Period (a "Defect"), Licensee shall notify Vendor in writing during the Warranty Period of the nature of the Defect, with sufficient detail for Vendor to reproduce and diagnose such Defect, and Licensee's exclusive remedy, and Vendor's sole obligation under this warranty, shall be, at Vendor's sole discretion, to repair or replace the defective Program. Any use by Licensee of the Program is at Licensee's own risk. This limited warranty is void if a Defect is due to (i) use not in accordance with the Documentation and instructions of Vendor or abuse or misapplication of the Program by Licensee, (ii) defects or problems with the Equipment or any software (other than the Program), other hardware or system, including but not limited to the Database application program or the Database, (iii) defects that do not materially affect the performance of the Program in conformance with the Documentation, (iv) defects arising, in whole or in part, from the interaction between the Program and any other software, hardware or system, including but not limited to the Database application program or the Database, or between the Program and the Equipment, if such Equipment does not conform to the specifications provided by Vendor, (v) defects relating to the Program if it has been modified by Licensee or any third party, or (vi) defects resulting from Licensee's relocation of the Program or Equipment. In the event that a problem reported by Licensee is not covered by this warranty or is not reproducible, Vendor may charge its then-current time and materials rates in connection with its services relating thereto.(B) THE WARRANTIES AND REMEDIES SET FORTH IN SECTION 10(A) ARE EXCLUSIVE AND IN LIEU OF ALL OTHERS, ORAL OR WRITTEN, EXPRESS OR IMPLIED. VENDOR DOES NOT WARRANT THAT THE PROGRAM, OR ANY SERVICES DESCRIBED HEREIN OR IN ANY MAINTENANCE AGREEMENT (AS HEREINAFTER DEFINED), WILL BE DELIVERED OR PERFORM ERROR-FREE OR WITHOUT INTERRUPTION TO LICENSEE. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 10(A) ABOVE, ALL PRODUCTS AND SERVICES OF VENDOR, INCLUDING BUT NOT LIMITED TO THE PROGRAM AND THE EQUIPMENT, ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE (INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE OR NON- INFRINGEMENT). NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, VENDOR DOES NOT WARRANT THAT THE PROGRAM WILL OPERATE WITH ANY VERSION OF THE DATABASE APPLICATION PROGRAM OTHER THAN THAT VERSION SET FORTH ON THE COVER PAGE HEREOF OR IN THE DOCUMENTATION. LICENSEE ACKNOWLEDGES AND AGREES THAT VENDOR SHALL HAVE NO LIABILITY WITH RESPECT TO ANY CONTENT, INFORMATION, STATEMENTS OR INTERESTS OF ANY KIND WITHIN THE DATABASE. LICENSEE UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THE OUTPUT OF THE DATABASE APPLICATION PROGRAM USING THE PROGRAM MAY BE DERIVED FROM DATA THAT HAS BEEN CACHED IN THE EQUIPMENT PRIOR TO CHANGES TO SUCH DATA THAT MAY BE MADE TO THE DATABASE BY USERS. IN ANY EVENT THAT THE PROGRAM IS CONFIGURED TO CACHE DATA FROM THE DATABASE, A POSSIBILITY EXISTS THAT OUTPUT FROM THE DATABASE APPLICATION MAY BE DERIVED FROM OUT-OF-DATE DATA. VENDOR HAS RECOMMENDED THAT LICENSEE CONFIGURES THE PROGRAM TO UPDATE AND CACHE FREQUENTLY, AND LICENSEE ACKNOWLEDGES THAT THERE IS A POSSIBILITY THAT OUTPUT COULD BE DERIVED FROM OUT- OF-DATE DATA. VENDOR SHALL IN NO EVENT BE LIABLE OR RESPONSIBLE FOR ANY HARM CAUSED BY THE POTENTIAL DESCRIBED IN THIS PARAGRAPH. Limitation of Liability. VENDOR AND VENDOR'S AFFILIATES AND LICENSORS SHALL HAVE NO LIABILITY WITH RESPECT TO THIS AGREEMENT OR OTHERWISE FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF BUSINESS AND LOSS OF PROFITS, BUSINESS INTERRUPTION AND LOSS OR CORRUPTION OF DATA ARISING OUT OF THE USE OF OR INABILITY TO USE THE PROGRAM, EVEN IF SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL VENDOR OR VENDOR'S AFFILIATES OR LICENSORS BE LIABLE FOR ANY REASON AND UPON ANY CAUSE OF ACTION WHATSOEVER RELATING TO ANY THIRD PARTY SOFTWARE OR HARDWARE, INCLUDING BUT NOT LIMITED TO THE EQUIPMENT. IN NO EVENT SHALL VENDOR'S LIABILITY FOR ANY REASON AND UPON ANY CAUSES OF ACTION IN THE AGGREGATE WHATSOEVER EXCEED, IN THE AGGREGATE, THE AMOUNT OF LICENSE FEES ACTUALLY PAID BY LICENSEE TO VENDOR UNDER THIS AGREEMENT DURING THE ONE (1) CALENDAR YEAR PERIOD DURING WHICH THE CLAIM(S) AROSE.Termination. In addition to its rights as set forth elsewhere in this Agreement, at law or in equity, Vendor shall have the right to terminate this Agreement upon thirty (30) days written notice to Licensee upon material violation or breach by Licensee of any provision of this Agreement, including, but not limited to, its payment obligations hereunder, provided that Licensee has not fully cured such breach within such time period, or immediately, without providing an opportunity to cure, in the event of Licensee's repeated material violation or breach. The termination of this Agreement shall automatically, and without further action by Vendor, terminate and extinguish the License. In the event of termination of this Agreement by Vendor, Vendor shall have the right, at any time, to take immediate possession of the Program and Documentation, and all copies thereof, wherever located. Within five (5) days after the termination of the License granted hereunder, Licensee shall return the Program and Documentation, including all copies thereof, to Vendor, or upon request of Vendor, destroy the Program and Documentation and all copies thereof and certify in writing that the same have been destroyed. Notwithstanding the foregoing, all provisions of this Agreement relating to proprietary rights, confidentiality, non-disclosure, disclaimer of warranty and limitation of liability shall survive the termination hereof. Operating Environment. Licensee is solely responsible for acquiring, installing, operating and maintaining the hardware and software environment necessary to operate the Program. Maintenance. Other than as expressly set forth in Section 10(A) hereof, the parties hereto acknowledge that Vendor shall have no maintenance obligations hereunder with respect to the Program or the Equipment. Any maintenance to be provided by Vendor to Licensee shall be subject to the terms of a separate maintenance agreement (the "Maintenance Agreement") to be entered into between the parties hereto and shall be in accordance with all of the terms and conditions, including payment obligations, set forth therein. Any updates, upgrades, replacements, revisions, enhancements, additions or conversions to the Program supplied to Licensee by Vendor pursuant to the Maintenance Agreement shall become a part of, and subject to, this Agreement and the License, with the exception of Section 10(A). Taxes. Licensee shall, in addition to all other 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 profits which may be levied against Vendor. Licensee shall reimburse Vendor for the amount of any such taxes or duties paid or accrued directly by Vendor as a result of this transaction. EXPORT RESTRICTIONS. THIS LICENSE AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT, REEXPORT OR IMPORT OF THE PROGRAM, DOCUMENTATION OR INFORMATION ABOUT THE PROGRAM OR DOCUMENTATION WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA OR ANY OTHER GOVERNMENT. LICENSEE SHALL NOT EXPORT, REEXPORT OR IMPORT THE PROGRAM, DOCUMENTATION, OR INFORMATION ABOUT THE PROGRAM OR DOCUMENTATION WITHOUT THE WRITTEN CONSENT OF VENDOR AND COMPLIANCE WITH SUCH LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS.Previous use of Program by Licensee. (A) To the extent that Licensee received a copy of the Program prior to the Effective Date for any purpose whatsoever (including for Beta trials, a trial period, promotion, evaluation, demonstration or for any other purpose) (the "Previously Granted Program"), such Previously Granted Program shall be deemed, for all purposes, as the Program, as such term is defined in this Agreement. The terms of this Agreement shall govern the use of such Previously Granted Program by Licensee, and Licensee's use of the Previously Granted Program shall be deemed to be subject to all the terms and obligations set forth in this Agreement with regard to the Program. (B) In the event that the Previously Granted Program was delivered to Licensee for a trial period of more than 90 days prior to the Effective Date, Licensee shall pay Vendor the entire License Fee (and Equipment Fee, if applicable) upon the Effective Date and the Effective Date shall be deemed the Acceptance Date. (C) In the event that that the Previously Granted Program was delivered to Licensee for a trial period less than 90 days prior to the Effective Date, then upon the lapse of the trial period (i.e. the 90th day from the date upon which the Previously Granted Program was first delivered to Licensee), the Licensee undertakes to and shall elect either (i) to purchase the License and pay Vendor the entire License Fee, and such date shall be deemed the Acceptance Date; or (ii) not to purchase the License and then upon such date, to immediately uninstall the Previously Granted Program, cease all use thereof, return all copies of the Program and Documentation to Vendor and such date shall be deemed the termination date of this Agreement and the terms of Section 12 above shall thereupon take effect as if this Agreement was terminated pursuant to such Section 12. Publicity. Licensee hereby grants Vendor the right to use Licensee's trade name in customer lists and other written and electronic publications and marketing materials, including its web site(s) and materials provided to investors, potential investors, investment banking firms, financial advisors and other financial sources, identifying Licensee as a customer of Vendor's product. Subject to the immediately preceding sentence, neither party shall use any trademark, service mark, trade name or other mark or logo of the other party, or otherwise publicly reference this Agreement, without such party's advance written approval in each instance. General. This Agreement constitutes the complete and exclusive statement of the terms and conditions between the parties, and supersedes all prior proposals, understandings and other agreements, oral and written, between the parties, relating to the subject matter hereof, including but not limited to any statements made in Vendor's print and electronic product literature and web site(s). 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. Neither party shall be liable to the other for any delay or failure to perform (other than a failure to fulfill a payment obligation hereunder) due to causes beyond its reasonable control. Performance times shall be considered extended for a period of time equivalent to the time lost because of any such delay. 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 Vendor's proprietary rights in the Program or Documentation or the confidentiality obligations set forth herein. Licensee may not assign or sublicense, without the prior written consent of Vendor, its rights, duties or obligations under this Agreement, in whole or in part, to any person or entity. This Agreement and any action related hereto shall be governed by the laws of the State of _____________ without reference to the conflict of laws provisions thereof. Vendor and Licensee hereby agree on behalf of themselves and any person claiming by or through them that the sole and exclusive jurisdiction and venue for any litigation arising from or relating to this Agreement or the subject matter hereof shall be an appropriate federal or state court located in ____________ County, State of ____________. Notwithstanding the above in this Section 19, Vendor shall have the right to bring action against Licensee in courts of competent jurisdiction in the jurisdiction in which Licensee is located to seek injunctive relief against Licensee or to enforce judgments obtained against Licensee. If any provision of this Agreement is invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted. 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; or (iii) if by next day delivery service, upon such delivery. 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. Exhibit A Equipment Maker, make and model of Equipment: