Fill and Sign the Software License and Support Agreement Form

Software License and Support Agreement This Software License and Support Agreement is made on the ________________ (date) , between ____________________ (Name of Licensor) , a corporation organized and existing under the laws of the state of ______________, with its principal office located at _______________________________________________________________ ____________ (street address, city, state, zip code) , referred to herein as Licensor , and _________________ (Name of Licensee) , a corporation organized and existing under the laws of the state of ______________, with its principal office located at _______________________________________________________________________ (street address, city, state, zip code) , referred to herein as Licensee . For and in consideration of the mutual covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the undersigned agree that the following terms and conditions will apply to the licenses and services provided under this Agreement, including the those set forth in Schedule A attached hereto and made a part hereof. 1. Definitions. For purposes of this Agreement, the following terms shall have the meanings assigned below. Other capitalized terms shall have the meanings set forth herein: A. Confidential Information shall mean information that a disclosing party treats in a confidential manner and that is marked Confidential Information prior to disclosure to the other party. If information disclosed orally is considered confidential information by the disclosing party, that party must inform the other at the time of disclosure and confirm in writing within (e.g., 5) _____ days of such disclosure that the information is to be treated as Confidential Information. Confidential Information does not include information which: (i) is public or becomes public through no breach of the confidentiality obligations herein; (ii) is disclosed by the receiving party with the prior written approval of the other party; (iii) was known by the receiving party at the time of disclosure, (iv) was developed independently by the receiving party without use of Confidential Information, (v) becomes known to the receiving party from a source other than the disclosing party through lawful means, (vi) is disclosed by the disclosing party to others without confidentiality obligations, or (vii) is required by law to be disclosed. B. Documentation means the user instructions, manuals or other materials regarding the use of the Software that Licensor makes generally available in connection with the Software. C. Intellectual Property Rights shall include without limitation all right, title, and interest in and to all (i) Letters Patent and all filed, pending, or potential applications for Letters Patent, including any reissue, reexamination, division, continuation, or continuation - in - part applications throughout the world now or hereafter filed; (ii) trade secret rights and equivalent rights arising under the common law, state law, federal law, and laws of foreign countries; (iii) copyrights, mask works, other literary property or authors rights, whether or not protected by copyright or as a mask work, under common law, state law, federal law, and laws of foreign countries; and (iv) proprietary indicia, trademarks, trade names, symbols, logos, and/or brand names under common law, state law, federal law, and laws of foreign countries. D. Software means the Licensor’s proprietary computer program(s), or those licensed by Licensor from others, and provided hereunder, as listed in the attached Schedules, ordered by the Licensee and any Updates hereafter furnished to the Licensee by Licensor under this Agreement. E. Updates means those updates, modifications, bug fixes and other corrections that Licensor makes generally available for no additional charge to other licensees of the Software who receive technical support services. 2. License Grant. Subject to the terms and conditions of this Agreement, Licensor hereby grants to the Licensee a nonexclusive, nontransferable, perpetual license (the License) to (a) use the Software on the number of devices specified in the attached schedules for its own internal business purposes, (b) use and make copies of the Documentation in con junction with the foregoing, and (c) make a reasonable number of copies of the Software solely for back-up or archival purposes. The Licensee will reproduce all copyright and other proprietary notices on all copies of the Software and Documentation in the same form and manner that such copyright and other proprietary notices are included on the Software or Documentation. The Licensee acknowledges that Licensor shall retain title to the Software and Documentation. Licensor hereby reserves all rights to the Software, Documentation, or any copyrights, patents, or trademarks, embodied or used in connection therewith, except for the rights expressly granted herein. 3. Restrictions. Licensee shall not, or through any other party: (a) sell, lease, license or sublicense the Software or the Documenta tion; (b) decompile, disassemble, or reverse engineer the Software, in whole or in part; (c) allow access to the Software by any user other than the Licensee’s employees; (d) write or develop any derivative software or any other software program based upon the Software; (e) use the Software to provide processing services to third parties, or otherwise use the Software on a “service bureau” basis; or (e) provide, disclose, divulge or make available to, or permit use of the Software by any third party without Licensor’s prior written consent. 4. Technical Support. Conditioned upon payment by the Licensee of support fees as set forth on Schedule B , during the term of this Agreement, Licensor will provide updates and technical support services to the in accordance with Licensor’s then-current technical support policies. Licensor hereby represents and warrants that technical support for the Software shall be available to Licensee for not less than (i.e., 3) _____ years from the date of acceptance of the Software. Licensor’s personnel will be available to directly respond to the telephonic or e-mail request of any of the Licensee’s authorized users (a User) for technical support at all times during the Term during the hours of 9:00 AM to 5:00 PM, (e.g., Pacific) __________ time, Monday through Friday, nationally recognized holidays excluded. 5. Additional Services. Licensee may request that Licensor provide services not part of the technical support services set forth herein, at any time. Licensor shall provide such additional services, if they are generally available to Software users in accordance with Licensor’s standard procedures and rates. Licensor shall have no obligation to commence such additional services until the parties enter a written agreement setting forth the terms and conditions, including fees, applicable to such services. 6. Term and Termination. The term of this Agreement begins on the Effective Date and continues until ____________________ (date) , unless earlier terminated in accordance with this Agreement. Thereafter, this Agreement will renew annually upon mutual written consent by both parties. Either party may terminate this agreement upon (e.g., 60) ______ days written notice. Following termination, the Licensee shall retain the right to (a) use the Software on the number of devices specified in the attached Schedules for its own internal business purposes, (b) use and make copies of the Documentation in con junction such use, and (c) make a reasonable number of copies of the Software solely for back-up or archival purposes. If the Licensee are in material breach of this Agreement, or if any assignment shall be made of its business for the benefit of creditors, or if a receiver, trustee in bankruptcy or a similar officer is appointed to take charge of all or part of its property, or if the Licensee are adjudged as bankrupt, then this Agreement shall terminate immediately and automatically upon delivery of written notice by Licensor. Sections 6 through 12 shall survive any expiration or termination of this Agreement. 7. License Fee and Taxes. A. Licensee shall pay Licensor the non-refundable license fees and the support fees set forth in the attached Schedules, plus all applicable taxes. Such fees will be payable upon execution of this Agreement or as otherwise stated in the Schedules. The Licensee will have the option to expand the License to increase the licensed number of Users, or otherwise change the scope of the License, upon Licensor’s receipt of additional license fees for such expanded scope as set forth in Licensor’s then-current price list. To the extent required by applicable law, the Licensee will pay and be responsible for any excise, privilege, sales, use, customs, value added, and any other tax (except taxes imposed with respect to net income) imposed by or under the authority of any foreign, United States, state, or local law with respect to the license of Software contemplated by this Agreement. B. After the first anniversary of payment of the Annual Maintenance Fee, if any, specified in the Schedules, Licensor may raise subsequent Maintenance Fees only by the amount stated in the attached Schedules. 8. Nondisclosure. Licensee will not disclose, or permit any third party or entity use of or access to, Licensor’s Confidential Information (or any portion thereof) without prior written permission of Licensor (except such disclosure or access which is required to perform any obligations under this Agreement or which is required by law). Without limit ing the foregoing, the Licensee will protect Licensor’s Confidential Information at least to the same extent that the Licensee protects its own similar confidential information. The Licensee shall not provide, disclose or otherwise make available the Software or Documentation to any person other than the Licensee employees, contractors, and agents having need to use the Software as permitted by the license granted in Section 2 above, except with Licensor’s prior written consent. The provisions of this Section 8 are subject to Licensee’s obligations under applicable state and federal law, including the ______________ (name of state) Public Records Act and the federal Freedom on Information Act, which permit limited categories of information to be withheld from public disclosure. If the Licensee receives a request for disclosure of information that it believes does not qualify as information that may be withheld, the Licensee will notify Licensor in writing (e.g., 10) _____ days before making such disclosure. 9. Intellectual Property Warranty and Indemnity. A. Licensor hereby represents and warrants to Licensee that: 1. Licensor has all Intellectual Property Rights necessary to license the Licensor Software to Licensee in accordance with the terms of this Agreement; 2. Licensor is the sole owner or is a valid licensee of the Software and has secured all necessary licenses, consents, and authorizations with respect to use of the Software to the full extent contemplated herein, including, but not limited to, all text, pictures, audio, video, logos, source code, and copy contained therein; and 3. No part of the Software violates or infringes upon the copyrights, trade secrets, trademarks, patent rights, or other Intellectual Property Rights or other rights of a person or entity or is otherwise subject to any claims relating thereto. B. Licensor shall defend, or at its option, settle any claims brought against the Licensee for infringement of any third party copyright, patent, and any other proprietary rights of any third party by the Software and shall indemnify and hold harmless the Licensee for any judgments, damages, costs or expenses payable by the Licensee to the party bringing such action, together with reasonable attor neys’ fees relating thereto. Licensor shall be relieved of its indemnity obligations under this Section 9 unless the Licensee notify the Licensor promptly in writing of and give the Licensor the exclusive authority to defend or settle such claims and gives the Licensor proper and full information and assistance to settle or defend any such claim. C. If the Software, or any part thereof, is, or in the opinion of the Licensor may become, the subject of any claim for infringement of any third party copyright, patent, and any other proprietary rights of any third party, or if it is adjudicate by a court of competent jurisdiction that the Software, or any part thereof, infringes any third party copyright, patent, and any other proprietary rights of any third party, then Licensor may, at its option and expense, either (i) procure for the Licensee the right to use the Software or (ii) replace or modify the Software or parts thereof, with other suitable and reasonably equivalent tech nology so that the Software becomes non-infringing or (iii) if it is not commercially reasonable to take the actions specified in items (i) and (ii) immediately preceding, terminate this Agreement. THE FOREGOING PROVISIONS OF THIS SECTION 9 SHALL BE EFFECTIVE NOTWITHSTANDING THE PROVISIONS OF SECTION 10, BELOW. 10. Software Warranty. Licensor warrants that for a period of (e.g., 90) ______ days from the date of each purchase (i) each item of Software will perform in substantial accordance with the Documentation delivered with such Software, and (ii) at the date of each purchase, Licensor shall have used commercially reasonable efforts to cause the Software to be free of any known computer virus or harmful, malicious, or hidden program, data, or other computer instructions whose purpose is to disrupt, damage, or interfere with the use of computer and telecommunications software or hardware for their normal purposes (except as in accordance with the Documentation). A. Exceptions to Warranty. Notwithstanding the foregoing, Licensor shall have no obligation to fix errors in the Software caused by accident, misuse, abuse, improper operation, misapplication, or any other cause external to the Software, or if such repair service would constitute an excluded service pursuant to the Support and Maintenance Services provisions. B. Remedy for Breach of Warranty. Licensor’s exclusive liability and the Regent’s sole and exclusive remedy for breach of the provisions of this warranty section shall be, at Licensor’s option, to (i) repair or replace the Software which does not meet Licensor’s warranty and which is returned to Licensor, or (ii) take return of the Software and refund to the Licensee all remaining balances of unamortized license fees paid for such Software which is amortized over a (e.g., 5) _____ year period from date of purchase and a pro-rata portion of the Support Services fees representing the prepaid and unused portion of the Support Services fees paid to Licensor by the Licensee hereunder in respect of such Software. 11. Limitation of Liability. IN NO EVENT WILL LICENSOR BE LIABLE FOR LOST PROFITS, OR FOR ANY INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Licensor’s liability UNDER OR arising out of this Agreement FOR DIRECT DAMAGES shall not exceed (e.g., 3) _____ TIMES the amounts paid by the Licensee for the Software. THE FOREGOING LIMITATION OF LIABILITY IS NOT APPLICABLE TO LICENSOR’S INDEMNIFICATION OBLIGATIONS SET FORTH ELSEWHERE IN THIS AGREEMENT. FURTHER, THE FOREGOING LIMITATION IS NOT APPLICABLE TO ANY PERSONAL INJURY CLAIM. 12. Mutual Indemnification A. Licensor shall defend, indemnify, and hold the Licensee, its officers, employees, and agents harmless from and against any and all liability, loss, expense (including reasonable attorneys’ fees), or claims for injury or damages arising out of the performance of this Agreement but only in proportion to and to the extent such liability, loss, expense, attorneys’ fees, or claims for injury or damages are caused by or result from the negligent or intentional acts or omissions of Licensor, its officers, employees or agents. B. Licensee shall defend, indemnify, and hold Licensor, its officers, employees, and agents harmless from and against any and all liability, loss, expense (including reasonable attorneys’ fees), or claims for injury or damages arising out of the performance of this Agreement but only in proportion to and to the extent such liability, loss, expense, attorneys’ fees, or claims for injury or damages are caused by or result from the negligent or intentional acts or omissions of the Licensee, its officers, employees or agents. 13. Assignments and Sublicenses. No rights or obligations under this Agreement may be assigned, delegated or otherwise transferred by a party without the prior written consent of the other party. Except as provided herein, the Licensee shall have no right to sublicense the rights granted hereunder. 14. Audit. Licensor or a third party selected by Licensor may audit the Licensee’ use of the Software, upon notice to the Licensee, for purposes of ensuring compliance with this Agreement. Any such audit shall be conducted during regular business hours and shall not unreasonably interfere with the Licensee’ business activities. If an audit reveals that the Licensee have exceeded the scope of their license by more than _____%, (i) the Licensee shall pay the reasonable costs and expenses of such audit, and (ii) Licensor may, without limiting the remedies it otherwise might have under this Agreement or by law, invoice the Licensee for any such excess use as if the excess use was made part of a license expansion, together with interest thereon at a rate of _____% per month or partial month during which such amount was owed and unpaid, or the highest rate allowed by law, whichever is less. Any such invoice shall be paid within (e.g., 30) ______ days of the date of receipt of invoice. 15. 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. 16. 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. 17. Governing Law This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of _____________. 18. Notices 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. 19. Attorney’s Fees In the event that any lawsuit is filed in relation to this Agreement, the unsuccessful party in the action shall pay to the successful party, in addition to all the sums that either party may be called on to pay, a reasonable sum for the successful party's attorney fees. 20. Mandatory Arbitration 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. 21. Entire Agreement This Agreement shall constitute the entire agreement between the 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. 22. 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. 23. Assignment of Rights The rights of each party under this Agreement are personal to that party and may not be assigned or transferred to any other person, firm, corporation, or other entity without the prior, express, and written consent of the other party. 24. 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. 25. 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. 26. In this Agreement, any reference to a party includes that party's heirs, executors, administrators, successors and assigns, singular includes plural and masculine includes feminine. WITNESS our signatures as of the day and date first above stated. ______________________ _____________________ (Name of Licensor) (Name of Licensee) By:____________________________ By:_______________________________ ______________________ _______________________ (P rinted name & Office in Corporation) (P rinted name & Office in Corporation) ______________________ _______________________ (Signature of Officer) (Signature of Officer) Attach Schedules and Exhibits