Best Sample Forms

Trademark Infringement (Internet Domain)

forms — Wed, 17 Aug 2011 06:21:44 +0000

TRADEMARK INFRINGEMENT

(INTERNET DOMAIN)

Date: ____________________ (Date)

____________________________ (Company)

____________________________ (Company Address)

____________________________

VIA TELEFAX AND CERTIFIED MAIL.

RETURN RECEIPT REQUESTED.

__________________________, Inc.

______________________________ (Address of Company)

______________________________

Attn.: __________________________

Re: ________________________ (Clients Name)

1We are writing this letter on behalf of our clients, ____________________________ (Clients Name) and ___________________________________________ (Owners), owners and operators of _______________________________ (Company Name), who have acquired and maintain valuable trademark rights in and to the names and marks “_____________________________ (Copyright Name or Mark)” and “___________________________ (Copyright Name or Mark)”. As set forth in detail below, it has recently come to our clients attention that, on or about ___________________________ (Date), ______________________ (Service Company’s Name) registered the domain name ______________________ (Domain Name). COM with ______________________ (Company Name who Registered) Such use violates our clients’ rights and is likely to cause confusion.

Our clients have, for many years, offered to the public their services as the owners and operators of a first class, ___________________________ (Indicate Type of Business) in _______________ (Address of Business) which is also widely known to the public in the trade as _______________________. Our clients’ rights in and to the names and marks ___________________________ (Company Name) and ___________________ (Company Name) are valuable assets acquired, developed, and exploited by our clients, which our clients are, and have been active in protecting. As a result of our clients’ efforts and substantial expenditures, the public has come to associate the name “_____________ (Specify the Name)” with our clients and with first class ________________ (Type of Business) services, in general.

We therefore strenuously object to your adoption and use of our clients’ valuable trademark as your proposed INTERNET address. Your proposed use is all the more likely to cause confusion in that very medium, as an Internet search for _____________ (Company Name) reveals several pages of OUR clients’ information and photographs concerning __________________________________ (Company Name), at _________________________ (Location).

Considering the recent ______________ (Company) policies concerning the use and registration of Internet domain names, adopted and in effect effective ____________ (Effective Date), our clients were extremely surprised to learn of the new registration by ______________ (Company Name), of the domain name ________________.COM. (Domain Name). Please be advised that there is ample precedent for asserting a well-founded claim for trademark infringement against ______________ (Violating Company), based upon your adoption of this mark as your domain name. Due, in part, to the fact that _____________ (Company Name) currently permits only one logical domain name per applicant / entity, and because there is no directory of domain names (and Internet users must therefore “discover” or guess the addresses of the sites for which they seek information), courts have previously held that it is appropriate to enjoin use of a logical domain name by a registrant which is likely to confuse the public into believing that the domain name is in fact associated with another entity or is likely to dilute that mark to the first used.

While ________________ (Company Name) does not search or clear applications to register domain names, the new _____________ (Company Name) rules clearly provide that the applicant for registration of a domain name must warrant and represent that it has the legal right, and a bona fide intent, to use that domain name, and that its use by the applicant will not interfere with or infringe the property rights of any other person or entity in any other jurisdiction. Our clients find it difficult indeed, to understand how ______________________ (Company Name) could have satisfied its obligations under the ________________ (Company Name) rules in good faith, and warranted that its use of the domain name ___________.COM does not interfere with, or infringe the rights of any other entity.

Accordingly, our clients believe that your selection and registration of the domain name _______________.COM demonstrates a clear intention to trade upon our clients reputations and services and to foster an affiliation between _________________ (Company Name) on the one hand, and our clients and their high quality services on the other, when in truth and in fact there is no such affiliation or association. Due to the extraordinarily wide dissemination of materials on the Internet, and also in view of our clients own prominent presence on the Internet under and in connection with the name _______________, your selection of the name “_______________”.COM for your domain name address creates a high likelihood that the buying public will be confused and deceived as to the origin and source of your goods and / or services, and / or will assume a connection or affiliation between _______________ and _____________,

or assume a license or sponsorship of the ________________ name and mark by our clients, when in fact no such relationship, license or affiliation exists

Your selection of the domain name __________________ .COM, as set forth above, constitutes Federal Unfair Competition in violation of Section 43 (a) of the Lanham Act, 15 U. S. C., 1125 (a), a violation of the Federal Anti-dilution Statute, 15 U. S. C.,

1125 (c), and a breach of your representation to ______________., above described. We therefore hereby demand, on behalf of our clients, that you immediately withdraw your registration with _________________. We demand that you inform us in writing, within ten (10) days of the date of this letter, that you will cease using the name ______________ .COM as aforementioned, or in any other way associated with your business.

The foregoing is written without waiver of or prejudice to the rights of our clients, all which are expressly reserved herein.

______________________

(Signature and Title)

__________________________________________________________.

(Company Name and Address)

Download Trademark Infringement (Internet Domain) in Word Format

Sample Search Forms:

Continuing Support Agreement

forms — Wed, 17 Aug 2011 06:01:44 +0000

Continuing support agreement—Software.

CONTINUING SUPPORT AGREEMENT—SOFTWARE

Effective Date: _________

This Agreement is made by and between _________ Incorporated, a _________[State] corporation having a principal place of business at _________[Address] (“A”) and _________(“Customer”), a _________[State] corporation having a principal place of business at _________[Address].

Recitals

A and Customer entered into a License Agreement effective _________[date] (“License Agreement”); and Customer wishes A to provide support for the version(s) of the software licensed by A to Customer pursuant to the License Agreement and identified in Attachment 1 (“Software Implementations Covered by Support agreement”) hereto (as modified from time to time) in accordance with the terms and conditions of this continuing Support Agreement (“Support Agreement”);

A and Customer therefore agree as follows:

1. Definitions.

1.1. Appendix. “Appendix” shall mean an appendix to the License Agreement describing a version of the Software identified in Attachment 1 (“Software Implementations Covered by Support Agreement”) hereto.

1.2. Documentation. “Documentation” shall mean the documentation as delivered to Customer under the License Agreement for a version of the Software. Documentation shall not include modifications made by Customer to the Documentation.

1.3. Error. “Error” shall mean a reproducible defect in the Software or Documentation which causes the Software not to operate substantially in accordance with the Documentation and which is reported to A on the Software Error Report form set forth in Attachment 2 (“Software Error Report”) hereto, or in another format as provided by A from time to time.

1.4. Release. “Release” shall mean a particular version, including but not limited to updates supplied to Customer hereunder, of the Software and Documentation provided by A to Customer in accordance with the terms and conditions of the License Agreement or this Support Agreement and identified in Attachment 1 (“Software Implementations Covered by Support Agreement”).

1.5. Resolution. “Resolution” shall mean a modification(s) to the Software and/or Documentation and/or other information provided by A to Customer intended to resolve an Error.

1.6. Software. “Software” shall have the same meaning as “A Driver Software” as defined in the License Agreement.

1.7. Support. “Support” shall mean ongoing support provided by A pursuant to the terms of this Support Agreement.

1.8. Support Period. “Support Period” shall mean the period during which Customer is entitled to receive Support on a particular Release, which shall be a period of twelve months beginning from the “Support Starting Date” specified on Attachment 1 (“Software Implementations Covered by Support Agreement”) or from the expiration of the preceding Support Period.

2. Term and Termination.
2.1. The term of this Support Agreement with respect to a particular Release shall be the Support Period. Upon expiration of an existing Support Period for a particular Release (provided Support for such Release has not been terminated prior to expiration pursuant to Paragraph 2.2 or Paragraph 2.3 hereof), a new Support Period shall automatically begin for a consecutive twelve (12) month term (“Renewal Period”) so long as (a) Customer pays A’s then-current support fee (“Support Fee”) within thirty (30) days of invoice by A; and (b) A is still offering Support on such Release. This Support Agreement shall terminate upon the termination of Support for all Releases. The termination of this Support Agreement shall not terminate the License Agreement. From time to time the parties shall revise Attachment 1 (“Software Implementations Covered by Support Agreement”) to reflect the current Releases receiving Support and the associated Support Fees.

2.2. Either party shall have the right to terminate the Support for a particular Release without cause upon sixty (60) days written notice prior to the end of any Support Period for such Release. Upon such termination of Support for a Release by Customer, A shall retain any paid-up Support Fees for said Release. Upon termination of this Support Agreement by A with respect to a particular Release, A will promptly refund that portion of the Support Fee for said Release proportional to the percentage of the Support Period remaining at the time termination is effective. At such time the Release shall be deemed removed from the list on Attachment 1 (“Software Implementations Covered by Support Agreement”).

2.3. Either party may terminate the Support for a Release for cause in the event of a failure by the other party to meet any of its obligations set forth in this Support Agreement for such Release. Upon such termination of Support for cause by A, A shall retain any paid-up Support Fees for said Release. Upon such termination for cause by Customer, A will promptly refund that portion of the Support Fee for said Release proportional to the percentage of the Support Period remaining at the time termination is effective. At such time the Release shall be deemed removed from the list on Attachment 1 (“Software Implementations Covered by Support Agreement”).

3. Services Provided.

3.1. During the Support Period A shall provide the following services to a maximum of three Customer Technical Contacts for each Release identified on Attachment 1 (“Software Implementations Covered by Support Agreement”) hereto:

3.1.1. Forty (40) hours of written and telephone consultation pertaining to operation and application of the Software, during normal business hours, 9 A.M. to 4 P.M. Pacific Time, Monday through Friday, excluding A holidays.

3.1.2. Delivery of updates to the Software which are generally made available to similarly situated licensees who have licensed the same Software product from A under the applicable License Agreement.

3.2. During the Support Period, Customer may submit a Software Error Report to A specifying the Errors which Customer wishes to have corrected.

3.2.1. A shall use reasonable commercial efforts to provide a Resolution to mutually-agreed upon Errors reported on the Software Error Report in accordance with the guidelines set forth in Attachment 3 (“Support”).

3.2.2. Once Customer submits and A accepts one or more Software Error Reports requesting a Resolution to Errors in Customer’s then-current Release, Customer and A shall agree in writing to a schedule for the delivery of the corrected Software. If Customer submits additional Software Error Reports for a Release after the parties have agreed upon a schedule for delivery of corrections to such Release, the parties must agree upon a revised schedule for the delivery of the corrected Software. Otherwise, the additional Software Error Reports will be deemed to be the first of a new series of Software Error Reports for a subsequent Release.
3.2.3. Customer shall have thirty (30) days (or such other time as the parties may mutually agree upon) from the date on which A makes delivery of the Resolution to examine and test the Resolution to determine that it corrects the mutually-agreed upon Errors. The Resolution will be deemed to have been accepted by Customer if A does not receive within such thirty (30) day period a Software Error Report from Customer reporting Errors which Customer believes the Resolution did not sufficiently correct. In the event that Customer delivers to A within such thirty (30) day period a supplemental Software Error Report reporting such uncorrected Errors, A shall evaluate such supplemental Software Error Report and use reasonable means to provide to Customer a Resolution within thirty (30) days of receiving the supplemental Software Error Report. Should such Resolution not correct the Errors, Customer’s sole and exclusive remedy shall be to elect one of the following remedies in a written statement delivered to A within fifteen (15) days of Customer’s receipt of such Resolution.

(a) extend the correction period for a mutually agreed upon time;

(b) terminate the Support Agreement with respect to a particular Release as specified in Paragraph 2.3 above, provided Customer has returned all existing copies of the version of the Software which is nonconforming and has certified in writing that it has no right to use, market or distribute such version of the Software.

3.3. Unless A and Customer otherwise agree in writing, all Software or Documentation provided under this Paragraph 3 shall be distributed free of royalty or any other charge by Customer. Any distribution by Customer of Software or Documentation shall be governed by the terms and conditions of the License Agreement.

3.4. The following services are outside the scope of this Support Agreement.

3.4.1. Service for A products not licensed pursuant to the License Agreement.

3.4.2. Service for A products not identified in Attachment 1 (“Software Implementations Covered by Support Agreement”) to this Support Agreement.

3.4.3. Service for Software or Documentation which has been modified by Customer.

3.4.4. Service for other than the current Release of Software.

3.4.5. Errors which are not generated by the Software as delivered by A to Customer. If A establishes that no Error exists, or that the Error resulted from a modification by anyone other than A, Customer will pay A for its services at A’s then-current consultation rate.

3.4.6. Service which becomes necessary due to: 1) failure of computer hardware, equipment or programs not supplied by A; 2) catastrophe, negligence of Customer, operator error, improper use of hardware or software or attempted maintenance by unauthorized persons; or 3) any changes to the Software or Documentation that are not provided by A.

3.4.7. On-site support, unless mutually agreed to and subject to A’s then-current on-site support fees.

4. Customer’s Responsibilities.

4.1. Customer shall be responsible for distributing, at Customer’s expense, Releases within Customer’s organization and to its sublicensees, if any.

4.2. Customer and A agree that all Releases of the Software provided by A are subject to all the terms and conditions of the License Agreement.

4.3. Customer shall fully cooperate with A by providing relevant hardware, software, and other information if reasonably required by A, subject to any applicable agreements between Customer and A,
Customer and third parties, and Customer’s security regulations. Customer shall provide A with reasonably necessary hardware and software information, consultation and advice.

5. Support Fees.

5.1. Annual Support Fees shall be at A’s then-current rates. Customer shall pay Support Fees within thirty (30) days of its receipt of a correct invoice.

5.2. All payments made by Customer shall be in United States Dollars and directed to A, marked Attn: Accounts Receivable.

a. If Customer’s principal place of business is located outside of the United States, such payments shall be made by wire transfer directly to: (Name of Bank) _________(Address), _________(Contact:), _________(Account Number), _________(Routing Number), _________.

5.3. In addition to any other payments due under this Agreement:

(a). Customer agrees to pay, indemnify and hold A harmless from, any sales, use, excise, import or export, value added or similar tax or duty, and any other tax not based on A’s net income, including penalties and interest and all government permit fees, license fees, customs fees and similar fees levied upon the delivery of the Software and Documentation or other deliverables which A may incur in respect of this Agreement, and any costs associated with the collection or withholding of any of the foregoing items (the “Taxes”).

(b). If Customer fails to pay any Taxes as of the original due date for such Taxes and A receives any assessment or other notice (collectively the “Assessment”) from any governmental taxing authority providing that such Taxes are due from A, A shall, within thirty (30) business days of receipt of Assessment, give Customer written notice of the Assessment and Customer shall pay to A or the taxing authority the amount set forth as due in the Assessment within thirty (30) business days of receipt of such written notice from A. If A’s written notice to Customer of an Assessment is not made within the thirty (30) business days of A’s receipt of the Assessment, Customer shall pay to A within thirty (30) business days of receipt of such written notice only the amount set forth as due in the Assessment and A shall be responsible for any other penalties and interest due on the Taxes set forth in the Assessment.

5.4. If Customer requires on-site service, Customer agrees to pay actual costs for travel, lodging, and meals reasonably incurred by A in addition to the then-current support fees. Under such circumstances, Customer shall also pay actual costs for supplies and other expenses reasonably incurred by A, which are not of the sort which would normally be provided or covered by A; provided that Customer has approved in advance the purchase of such supplies and other expenses. Shipping and freight for Customer equipment shall be billed to Customer at actual cost. If Customer so requires, A shall submit written evidence of each expenditure to Customer prior to receiving reimbursement of any costs and expenses above.

6. LIMITATIONS ON WARRANTY. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, A DISCLAIMS ALL WARRANTIES EXPRESSED OR IMPLIED WITH REGARD TO SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. CUSTOMER SHALL NOT HAVE THE RIGHT TO MAKE OR PASS ON, AND SHALL TAKE ALL MEASURES NECESSARY TO ENSURE THAT NEITHER IT NOR ANY OF ITS AGENTS OR EMPLOYEES SHALL MAKE OR PASS ON ANY SUCH WARRANTY OR REPRESENTATION ON BEHALF OF A TO ANY CUSTOMER, END USER OR THIRD PARTY.

7. LIMITATION OF LIABILITY. THE TOTAL OF A’S LIABILITIES UNDER OR IN CONNECTION WITH THIS AGREEMENT (WHETHER ARISING FROM CONTRACT OR OTHERWISE) IS LIMITED TO THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER UNDER THIS AGREEMENT. A SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED UPON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, ARISING FROM ITS PERFORMANCE OR NONPERFORMANCE UNDER THIS AGREEMENT.

8. Notices. All notices or reports permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, telegram, telex, telecopier, facsimile transmission, or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five (5) days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission. Notices shall be sent to: (i) the contract representative designated in the specific Licensed System appendix if the notice or report relates to one or more specific Licensed Systems and (ii) a copy to the signatory of this Agreement at the address set forth at the end of this Agreement or such other address as either party may specify in writing. If the notice is to A a copy shall also be sent to the attention of its General Counsel.

9. Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause which is beyond the reasonable control of such party.

10. General.

10.1. Assignment. Neither this Agreement nor any rights or obligations of Customer hereunder may be assigned by Customer in whole or in part without the prior written approval of A. For the purposes of this paragraph, a change in the persons or entities who control fifty percent (50%) or more of the equity securities or voting interest of Customer shall be considered an assignment of Customer’s rights. A’s rights and obligations, in whole or in part, under this Agreement may be assigned by A. A may exercise full transfer and assignment rights in any manner at A’s discretion and specifically may sell, pledge, or otherwise transfer its right to receive royalties under this Agreement.

10.2. Waiver. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.

10.3. Severability. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.

10.4. Export. Customer acknowledges that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Release and related Documentation in any form or medium. Customer agrees that it will not export or re-export the Release and related Documentation in any form, without the appropriate United States and foreign government licenses. Customer agrees that its obligations pursuant to this paragraph shall survive and continue after any termination or expiration of rights under this Agreement.

10.5. Controlling Law. This Agreement shall be governed in all respect by the laws of the United States of America and the State of _________ as such laws are applied to agreements entered into and to be performed entirely within _________[state] between _________[state] residents. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.

10.6. Injunctive Relief. It is understood and agreed that, notwithstanding any other provisions of this Agreement, breach of the provisions of this Agreement by Customer will cause A irreparable damage for which recovery of money damages would be inadequate, and that A shall therefore be entitled to obtain timely injunctive relief to protect A’s rights under this Agreement in addition to any and all remedies available at law.

10.7. No Agency. Nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties.

10.8. Headings. The paragraph headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or extent of such paragraph or in any way affect this Agreement.

10.9. Confidentiality of Agreement. Neither party will disclose any terms or the existence of this Agreement, except pursuant to a mutually agreeable press release or as otherwise required by law.

10.10. Entire Agreement. This Agreement together with the exhibits completely and exclusively states the agreement of the parties regarding its subject matter. It supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. This Agreement shall not be modified except by a subsequently dated written amendment or appendix signed on behalf of A and Customer by their duly authorized representative and any provision or a purchase order purporting to supplement or vary the provisions hereof shall be void.

10.11. Full Power. Each party warrants that it has full power to enter into and perform this Agreement, and the person signing this Agreement on each party’s behalf has been duly authorized and empowered to enter into this Agreement. Customer further acknowledges that it has read this Agreement, understands it and agrees to be bound by it.

10.12. Forum. All disputes arising under this Agreement may be brought in Superior Court of _________ or the Federal District Court of _________, as permitted by law. The Superior Court of _________ and the Federal District Court of _________ shall each have nonexclusive jurisdiction over disputes under this Agreement. Customer consents to the personal jurisdiction of the above courts.

10.13. Attorneys’ Fees. In the event any proceeding or lawsuit is brought by _________, its suppliers or Customer in connection with this Agreement, the prevailing party in such proceeding shall be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal.

10.14. Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.

This Support Agreement is made effective as of _________[date].

CUSTOMER:

_________

Authorized Signature

_________

Print Name

_________

Title

_________

Date

Attachment 3.

Support

1. General Description of Support. Support shall consist of (i) the delivery of updates of Software as provided in Paragraph _________ of the Support Agreement and (ii) the Error resolution services described below with respect to Errors (as defined in Paragraph 1.5 (“Resolution”) of the Support Agreement) in the Software. Except as otherwise provided herein, capitalized terms shall have the same meaning as defined in the attached Support Agreement.

2. Description of Error Resolution Services Provided By A.

2.1. Software Error Reports (SERs). Customer shall submit to A by electronic mail or facsimile, Software Error Reports in the form attached hereto as Attachment 2 (“Software Error Report”) to identify any Errors. A may modify the form of SER from time to time and shall provide the new form to Customer.

2.2. Classification of Errors. Customer shall use its reasonable business judgment to classify Errors in accordance with the classifications set forth below and report such classification in the SER Customer submits to A.

(a). Level 4 Severity. Level 4 is the classification used in a SER to describe an Error (i) that causes the Software to fail to operate in a material manner or causes the Software to produce substantially incorrect results; and (ii) to which there is no work around solution.

(b). Level 3 Severity. Level 3 is the classification used in a SER to describe an Error (i) that causes the Software to fail to operate in a material manner or causes the Software to produce substantially incorrect results; and (ii) to which there is a difficult or no work around solution.

(c). Level 2 Severity. Level 2 is the classification used in a SER to describe an Error which produces an inconvenient situation in which the Software is usable but does not function in the most convenient or expeditious manner, and which does not significantly impact the use or value of the Software. Level 2 Errors will generally be corrected in a subsequent Release of the Software.

(d). Level 1 Severity. Level 1 is the classification used in a SER to describe an Error which is minor or that is cosmetic in nature. Generally, a Level 1 Error is reasonably correctable by a Documentation change or by a subsequent Release of the Software.

2.3. A’s Response to SERs. Within five (5) business days after receipt by _________ of a SER involving a classification of a Level 3 or 4 Severity Error or ten (10) days after receipt of a SER involving a classification of a Level 1 or 2 Severity Error, A shall acknowledge receipt of the SER. If in A’s judgment, a SER correctly identifies a Level 3 or 4 Severity Error, A shall use reasonable commercial efforts to correct the identified Error and issue and deliver to Customer a Release with such correction implemented, or take such other corrective action as A deems necessary to correct the Error. A acknowledges that it shall give priority and shall take corrective actions as expeditiously as possible in connection with any Severity 3 or 4 Error that prevents Customer from using the Software for the purposes set forth in the License Agreement and/or an Appendix.

Download Continuing Support Agreement in Word Format

Sample Search Forms:

Software Agreement

forms — Wed, 17 Aug 2011 05:53:33 +0000

THIS AGREEMENT is made by and between C having its principal place of business at _________[Address] (hereinafter referred to as “C”), and (Customer Name) having its principal place of business at _________(Address) (hereinafter referred to as “Licensee”).

RECITALS

WHEREAS, C has licensed to the Licensee certain software products (the “Licensed Programs”) pursuant to a Software License Agreement entered into _________[date], (the “License Agreement”), and

WHEREAS, Licensee desires to obtain and C agrees to provide certain maintenance for such software products in accordance with the terms and conditions of this Agreement.

NOW THEREFORE, in consideration of the mutual promises and covenants set forth below, the parties agree as follows:

AGREEMENT

1. TERM AND TERMINATION.

a. The term of this Agreement shall commence upon the expiration of the Warranty Period (as defined in Paragraph _________ of the License Agreement) for the Licensed Programs, and shall extend for an initial period of twelve (12) months. This Agreement shall then automatically extend for renewal terms of twelve (12) months until terminated by either party upon sixty (60) days written notice prior to the end of any twelve (12) month term. The termination of this Agreement shall not terminate the License Agreement.

b. Failure by either party to comply with any material term or condition under this Agreement shall entitle the other party to give the party in default written notice requiring it to make good such default. If the party in default has not cured such default within thirty (30) days of receipt of notice, the notifying party shall be entitled, in addition to any other rights it may have, to terminate this Agreement by giving notice effective immediately. The right of either party to terminate this Agreement shall not be affected in any way by its waiver of or failure to take action with respect to any previous default.

2. C SERVICES. C agrees for the charges stated herein and during the term of this Agreement, to furnish Licensee the following services for the Licensed Programs and Licensed Program Specifications (the “Specifications”) as defined in Exhibit _________ of the License Agreement:

a. To correct, to the extent reasonably possible, any defects in the Licensed Programs which cause the Licensed Programs not to operate in accordance with the description of the Licensed Programs’ function in the Specifications. If C determines that such defects are due to errors in such description, C shall issue corrections to the Specifications and shall not be required to alter the Licensed Programs.

b. To use its best efforts to effect a remedy where such defects in the Licensed Programs affect the Licensee’s day to day operations.

c. To provide reasonable written and telephone consultation pertaining to operation and application of the Licensed Programs.

d. To provide enhancements to the Licensed Programs which are designated by C as “internal improvements” and which are provided free of charge to C customers receiving maintenance. The term “enhancement” shall mean any program, any part thereof, or any materials not included in the Licensed Programs at the time of execution of this Agreement which modify or improve the existing functions of the Licensed Programs.

Enhancements do not include new modules which C designates as software products for which C charges separately.

e. To provide updates to the Specifications as available. The term “update” shall mean any materials not included in the Specifications at the time of execution of this Agreement which modify the description of the Licensed Programs in the Specifications.

3. SERVICE LIMITATIONS. The following services are outside the scope of this Agreement:

a. Service for individual modules of the Licensed Programs and Licensed Program Specifications. C will supply service only for the Licensed Programs and Licensed Specifications in their entirety at the site(s) location set forth in Exhibit _________ of the License Agreement.

b. Service for C custom programs or other products not set forth in Exhibit _________ of the License Agreement.

c. Service for Licensed Programs which have been subject to unauthorized modifications by Licensee.

d. Service for Licensed Programs not maintained to the latest revision, or the revision prior to the latest revision.

e. Service which becomes necessary due to:

i failure of computer hardware or equipment or programs not covered by this Agreement;

ii modification of the Licensed Programs by Licensee if such services would not be necessary if the Licensed Programs were not so modified;

iii catastrophe, negligence of Licensee, operator error, improper use of hardware or software or attempted maintenance by unauthorized persons.

4. LICENSEE RESPONSIBILITIES.

a. Licensee, in connection with the services to be furnished hereunder, shall be responsible for implementing, at Licensee’s expense, all Licensed Program corrections and Licensed Program enhancements.

b. Licensee agrees to maintain the Licensed Programs to the latest revision level as soon as practicable and to incorporate all corrections and enhancements to the Licensed Programs provided by C. Licensee understands that its failure to incorporate C Licensed Programs corrections and enhancements will cause the Licensed Programs to be non-conforming and that subsequent Licensed Programs corrections, enhancements and updates may be unusable.

c. Licensee acknowledges that all Licensed Programs and corrections and enhancements to the Licensed Programs provided by C are subject to the conditions of the License Agreement and Licensee agrees to abide by those conditions.

d. Licensee shall fully cooperate and assist C in the provision of services, including allowing full and free access to relevant hardware, software and other information. Licensee shall also provide C with reasonably necessary information, consultation and advice.

5. CHARGES.

a. C shall provide maintenance for the first year for a fee (the “Maintenance Fee”) equal to 15% of the then-current list price for the Licensed Programs. The Maintenance Fee for each subsequent year shall be increased by an amount equal to the percentage increase, if any, of the Consumer Price Index for all Urban Consumers (United States—All Items) as published by the United States Bureau of Labor Statistics (the “Index”), for the month of the commencement of the annual maintenance period, over the value of said Index for the month of commencement for this Agreement. If the Index itself is discontinued by the Bureau of Labor Statistics, C and Licensee agree to the substitution herein of any substitute index published by the United States government. In the event no such substitute is published, C and Licensee shall agree on a mutually acceptable alternative index.

b. C will invoice Licensee annually in advance for Maintenance Fees, provided that C shall invoice the Maintenance Fee for new modules added to an already-installed copy of the Licensed Programs after the commencement of the annual maintenance period on a pro-rata basis for the remainder of the year. Licensee will pay all invoices issued under this Agreement within thirty (30) days from the date of invoice. Licensee shall pay a charge of one-half percent (0.5%) per month on all amounts invoiced, due, and unpaid.

c. Licensee shall have the option to renew the Maintenance Agreement annually; however, once the Maintenance Agreement has been terminated by Licensee, Licensee may reinstate:

i Provided no more than six (6) months has elapsed or more than one (1) release of the Licensed Programs has been issued; and

ii Provided Licensee pays:

(1) The maintenance fee for the year; and

(2) A penalty not to exceed ten percent (10%) of the yearly maintenance fee for each month during which there was no maintenance coverage.

d. When, at Licensee’s request, C provides on-site service or service where travel is required, Licensee agrees to pay actual travel, living and out-of-pocket expenses reasonably incurred by C.

e. All charges hereunder do not include sales taxes or other taxes of any kind. Licensee agrees to pay, and to indemnify and hold C harmless from, any sales, business, occupation, value added, excise or similar tax not based on C’s net income, as well as the collection or withholding thereof, including penalties and interest which C may incur to any state, federal, foreign, or other governmental entity in respect to this Agreement. Licensee’s obligation to pay such taxes that are incurred during the duration of this Agreement shall survive the termination of this Agreement.

6. RELOCATION. C shall be under no obligation to furnish continued service under this Agreement if the Licensed Programs are moved from their location of initial installation or reinstallation without C’s prior written consent.

7. ELIGIBILITY. Each copy of the Licensed Programs is eligible for inclusion under this Agreement immediately upon the expiration of the Warranty Period for such copy.

8. LIMITATION OF LIABILITY.

a. The total of C’s liabilities under or in connection with this Agreement (whether arising from contract or otherwise) is limited to the Maintenance Fees paid by Licensee under this Agreement during the twelve (12) months preceding the event giving rise to such liability. C SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED UPON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, ARISING FROM ITS PERFORMANCE OR NON-PERFORMANCE UNDER THIS AGREEMENT.

b. Licensee acknowledges and agrees that fee charges by C for the software and services provided under this Agreement reflect the allocation of risk provided by the exclusive remedies and limitations of liability set forth in this Agreement, and that such allocation of risks is a fundamental benefit of the bargain of each party. Licensee acknowledges that any modification of the allocation of risk in this Agreement would affect the fees charged by C, and Licensee therefore agrees, in consideration of the actual level of fees payable by Licensee hereunder, to the allocation of risk as set forth in this Agreement.

9. GENERAL.
a. Assignment. No assignment, delegation or other use of any right or duty under this Agreement may be made by either party without the prior written consent of the other party, other than by C to a purchaser of all or substantially all of C’s stock or assets or to a third party pursuant to a merger or other corporate reorganization. Any such assignment, delegation, or other use attempted to be made without such written consent shall be void for all purposes.

b. Entire Agreement. This Agreement represents the entire agreement between the parties, may only be amended by a written agreement signed by both parties, and supersedes all prior agreements and understandings with respect to the matters covered by this Agreement.

c. Delays. C is not responsible for failure to fulfill its obligations under this Agreement due to causes beyond its control, including, but not limited to war, riots, strikes, lockouts, shortages, labor conditions, earthquakes, communication failures, or governmental regulations imposed after the execution of this Agreement.

d. Invalid Provisions. If any provision of this Agreement is declared to be invalid under any applicable statute or rule of law, the parties agree that such invalidity shall not affect the remaining portions of this Agreement.

e. Waiver. The failure of either party to exercise any right or option that is granted herein or to require the performance of any term of this Agreement, shall not prevent a subsequent exercise or enforcement of such term or be deemed a waiver of any subsequent breach of the same or any other term of this Agreement.

f. Notice. Any notice required or permitted to be sent under this Agreement shall be delivered by hand, by cable, charges prepaid, or mailed by registered or certified mail, postage prepaid, return receipt requested, to the addresses of the parties set forth above or to such other address as may be furnished in writing to the other party. Notice so sent shall be deemed effective on personal delivery or on the fourth day following the date sent.

g. Attorney’s Fees. In the event that suit is brought under this Agreement, reasonable attorney’s fees and litigation costs, including court witness fees, as fixed by a court of competent jurisdiction, shall be awarded to the prevailing party.

h. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of _________[state] without giving effect to principles of conflict of law.

IN WITNESS WHEREOF, this Maintenance Agreement has been executed and delivered to be effective as of the date set forth in Paragraph 1.

By: _________

Title: _________

Date: _________

LICENSEE:

(NAME)

By: _________

Title: _________

Date: _________

Download Software Agreement in Word Format

Sample Search Forms:

Content Agreement for Web Site and Multimedia Work

forms — Tue, 16 Aug 2011 12:24:36 +0000

Content agreement for web site and multimedia works.

CONTENT AGREEMENT

This AGREEMENT is entered into _________[date], by and between SuperStar Productions Inc., a [state] corporation with offices at _________[address] (“SuperStar”) and _________, an individual residing at _________[address] (“Contributor”).

Contributor has created or will create the work(s) listed in Exhibit A (the “Work”), which SuperStar desires to incorporate in its web site and in other multimedia products which SuperStar may produce in the future. Contributor desires to provide SuperStar these rights in the Work.

In consideration of the mutual promises more particularly set forth below, the above parties agree as follows:

1. The Work: Contributor agrees to prepare and deliver to SuperStar the Work in accordance with this Agreement (including any exhibits).

2. Payment: SuperStar will pay Contributor the amounts listed in Exhibit A. Except as otherwise provided in this Agreement (including any exhibits) no payments will be made by SuperStar to Contributor until delivery of the completed Work by Contributor, and SuperStar’s acceptance of the Work, in accordance with the terms in paragraph 3 below. No other amounts shall be payable to Contributor.

3. Performance; Delivery:

(a). Contributor will deliver to SuperStar the completed Work, in form and content satisfactory to SuperStar, by the delivery dates listed in Exhibit A.

(b). Unless previously rejected by SuperStar, the Work will be deemed accepted by SuperStar upon the earlier of (i) SuperStar’s written notice to Contributor of its acceptance, or (ii) ten (10) business days following SuperStar’s receipt of the completed Work. Contributor agrees, if reasonably requested by SuperStar, to revise the Work, at Contributor’s expense, so that the Work is acceptable to SuperStar.

(c). Together with the delivery of the completed Work, the Contributor will (i) identify all material in the Work owned by others, and (ii) deliver to SuperStar (at Contributor’s expense) any written license or transfer agreements for such material as SuperStar considers appropriate.

4. Independent Contractor: Contributor and SuperStar agree and acknowledge that Contributor’s relationship with SuperStar will be that of an independent contractor and nothing in this Agreement is intended to or should be construed to create a partnership, joint venture or employment relationship.

5. Assignment and Subcontracting: This Agreement may not be assigned or transferred by Contributor to any other party, nor may any work be subcontracted, without SuperStar’s prior written consent.

[INSERT APPROPRIATE VERSION OF SECTION 6 FOR PARTICULAR TYPE OF WORK]

[FOR PHOTOS, ART AND TEXT]

6. Grant of License in Work Product: Contributor hereby grants to SuperStar an irrevocable, nonexclusive, perpetual, worldwide license to:

(i) convert the Work to a digital form and incorporate the digitized Work, in whole or in part, in SuperStar’s computer readable, interactive multimedia products, which may be published on an on-line computer network (including the Internet) and in CD-ROM format (the “Multimedia Products”) and in doing so, to modify, alter and edit the Work, as SuperStar deems appropriate;
(ii) reproduce the Work, as incorporated in the Multimedia Products, for publication and distribution in the forms, manners and mediums listed in subparagraph (i); and

(iii) display publicly and promote, sell, license, and distribute copies of the Work, as incorporated in the Multimedia Products.

Additionally, SuperStar may use the Work, or any portion thereof, in printed materials that accompany the Multimedia Product for delivery to end users, and in any advertisements or promotions (in any form or format) for the Multimedia Products.

SuperStar acknowledges that it has no rights in the Work except those expressly granted by this Agreement.

[FOR SOUND RECORDINGS]

6. Grant of License in Work Product: Contributor hereby grants to SuperStar an irrevocable, nonexclusive, perpetual, worldwide license to:

(i) adapt, modify, revise, and enhance the Work, convert the Work to digital form and otherwise prepare derivative works thereof;

(ii) incorporate all or any part of the Work as so adapted in SuperStar’s computer readable, interactive multimedia products, which may be published on an on-line computer network (including the Internet) and in CD-ROM format (the “Multimedia Products”) and synchronize it in timed relation with the visual images contained in the Multimedia Products;

(iii) reproduce the Work, as part of the Multimedia Products, for publication and distribution in the forms, manners and mediums listed in subparagraph (ii); and

(iv) promote, sell, license, and distribute copies of all or any part of the Work as part of the Multimedia Products.

Additionally, SuperStar may use the Work, or any portion thereof, in any advertisements or promotions (in any form or format) for the Multimedia Products.

SuperStar acknowledges that it has no rights in the Work except those expressly granted by this Agreement.

[FOR WORKS WHICH SUPERSTAR WILL OWN]

6. Rights in Deliverables: All works of authorship prepared or delivered by Contributor in accordance with this Agreement, including without limitation the Work, whether developed by Contributor or otherwise (collectively, the “Work Product”) shall, upon their creation, belong to SuperStar. The Work Product shall be treated as a “work made for hire” as that term is defined in Section 101 of the Copyright Act of 1976 (the “Copyright Act”), and shall be the sole property of SuperStar and SuperStar shall be the sole author thereof within the meaning of the Copyright Act. If the Work Product, or any portion thereof is not deemed to be a “work made for hire,” this Agreement shall operate as an irrevocable assignment of the copyright to the entire Work Product throughout the world. Contributor shall, at the request of SuperStar, execute any and all additional documents as are required to vest such ownership in SuperStar. This Agreement shall also operate as an irrevocable assignment of all trademarks which Contributor may have created for the Work Product, and any goodwill represented thereby, and all other intellectual property rights in the Work Product. In the event SuperStar is unable, after reasonable effort, to secure Contributor’s signature on any copyright, trademark or other analogous protection relating to the Work Product or related trademarks, whether because of Contributor’s physical or mental incapacity or for any other reason whatsoever, Contributor hereby irrevocably designates and appoints SuperStar and its duly authorized officers and agents as his/her agent and attorney-in-fact, to act for and in his/her behalf and stead to execute and file any such application or applications and to do all other lawfully permitted acts to further the prosecution thereon with the same legal force and effect as if executed by Contributor. Furthermore, as set forth in paragraph 3(c) above, Contributor will acquire from all third parties whose works of authorship may be included in the Work Product all such rights as may be necessary so that SuperStar will receive the rights hereby agreed to be conveyed and vested in it, free of any claims of such parties.
7. Publicity: SuperStar may use the Contributor’s name, likeness and biographical information in connection with its use, marketing and distribution of the Work in accordance with this Agreement and any product or service that includes the Work (or any portion of the Work).

8. Confidential Information: Any business plans, customer or contributor lists, distribution channels, suppliers, samples, programs or other technical or business information identified as confidential (“Confidential Information”) furnished or disclosed to Contributor by SuperStar shall be the property of SuperStar and, when in tangible form, shall be returned to SuperStar upon expiration or termination of this Agreement, or upon SuperStar’s earlier request. The terms of this Agreement will also be Confidential Information. Unless the Confidential Information was previously known to Contributor free of any obligation to keep it confidential, or has been or is subsequently made public by SuperStar or a third party which had the right to do so, or is independently developed by the Contributor, it shall be held in confidence by Contributor, shall be used only for the purposes of performing Contributor’s services hereunder, and may be used for other purposes only if agreed to in writing by SuperStar.

9. Representations and Warranties: Contributor represents and warrants that (i) Contributor has the full right and authority to enter into this Agreement and to grant the rights and licenses granted to SuperStar hereunder; (ii) Contributor has not previously assigned or transferred, on a restrictive basis, or otherwise encumbered such rights; (iii) except for the material identified by Contributor in accordance with paragraph 3(c), the Work shall be Contributor’s original work product or work product properly licensed to Contributor with the right to assign such license, and the Work will not infringe upon any copyright or other intellectual property right or violate any law or regulation; (iv) the Work will contain no matter which will be libelous or otherwise injurious or in violation of any right or privacy or any other personal or proprietary right of any third party; and (v) Contributor is under no obligation to any other person that could interfere with his/her performance of this Agreement or interfere with or impair SuperStar’s use of the Work. Contributor shall defend, indemnify and hold harmless SuperStar for any claim, loss, damage, expense or liability that may result from any breach or alleged breach of any of these representations and warranties.

10. Conflict of Interest: During the term of this Agreement, Contributor shall not (i) become a party to any agreement or subject to any obligation which would impede or prohibit his/her performance of this Agreement, or (ii) prepare, publish, license, distribute or otherwise make generally available any work which would interfere with or injure SuperStar’s sale or other commercial use of the Work.

11. Termination:

(a). If the Contributor fails to deliver the Work in accordance with the delivery schedule in Exhibit A, SuperStar shall have the right, in its discretion, upon thirty (30) days written notice to Contributor to (i) terminate this Agreement (without any further obligation or liability on the part of SuperStar), or (ii) supply any work or services not supplied by Contributor and to charge its cost (including, without limitation, compensation payable to other contributors) against any sums payable to Contributor under this Agreement.

(b). If (i) the Work, or any portion thereof, is not acceptable in either form or content to SuperStar, (ii) SuperStar returns the Work to Contributor to make the necessary corrections or revisions, and (iii) Contributor fails to make the necessary corrections or revisions within the prescribed time period, SuperStar shall have the right to terminate this Agreement immediately (without any further obligation or liability on the part of SuperStar) upon written notice to Contributor. In the event of any conflict between the termination provisions in the preceding subparagraph (a) and in this subparagraph, the provisions set forth in this subparagraph shall control.

(c). Except as otherwise specifically set forth above, SuperStar shall have the right to terminate this Agreement at any time upon written notice to Contributor in the event of a breach by Contributor of any of the terms and conditions set forth herein or therein.

(d). In the event that this Agreement is terminated by SuperStar pursuant to subparagraphs (a), (b) or (c) of this paragraph, all obligations of SuperStar to make any additional payments in connection with this Agreement shall terminate and SuperStar shall have no liability for any such payments.

12. Notices: All notices shall be in writing and all notices and all materials required to be delivered hereunder shall be delivered by personal delivery, certified mail, return receipt requested, or by commercial overnight courier, to the recipient’s address set forth above. Notices and all other Work shall be deemed received on (i) the date of personal delivery; (ii) the fifth business day after mailing, or (iii) the next business day after delivery to an overnight courier (unless the return receipt or the courier’s records evidence a later delivery).

13. Injunctive Relief: Contributor acknowledges and agrees that SuperStar shall not have an adequate remedy in the event that Contributor breaches this Agreement and that SuperStar will suffer irreparable damage and injury. In such event, Contributor agrees that in addition to any other available rights and remedies, SuperStar shall be entitled to an injunction restricting the Contributor from committing or continuing any violation of this Agreement.

14. General: The failure of either party hereto to enforce any right under this Agreement shall not be construed to be a waiver of that right, or of damages caused thereby, or of any other rights under this Agreement. This Agreement, including any exhibits, encompasses the entire agreement of the parties with respect to its subject matter, and there are no other agreements or understandings, either written or oral, with respect thereto. This Agreement may not be modified or amended except by a written instrument signed by each of the parties. This Agreement, and the transactions under it, shall be governed by and construed in accordance with the laws of _________[state], excluding its conflict of laws rules, and jurisdiction over any action to enforce this Agreement, or any dispute arising from or relating to this Agreement shall subsist solely in the state and/or federal courts located within _________[state]. The rights and obligations of the parties set forth in paragraphs 6, 8, 9 and 10 shall survive termination or expiration of this Agreement.

This Agreement shall be construed as an instrument executed under seal as of the date first set forth above.

SUPERSTAR PRODUCTIONS, INC.

[CONTRIBUTOR]

By: _________

_________

Name: _________

Title: _________

SS No. _________

EXHIBIT A

1. Description of the Work

[Provide a description of the Work sufficient for a third party to understand what is to be developed and/or delivered.]

2. Delivery Schedule

[Provide schedule of target dates and performance milestones for preparation and delivery of the Work]

3. Payment

[List the payment for the Work]

Download Content Agreement for Web Site and Multimedia Work in Word Format

Sample Search Forms:

Bulk License Agreement

forms — Tue, 16 Aug 2011 12:21:37 +0000

Bulk license agreement.

BULK LICENSE AGREEMENT

This Agreement, effective _________[date], is by and between XYZ, Inc. a _________[state] corporation with offices at _________[address] (“XYZ”) and _________, a _________[state] corporation with offices at _________[address], (“Licensee”).

1. BACKGROUND.

1.1. XYZ has developed the computer software programs and related products listed in Exhibit 1.1.

1.2. Licensee wishes to acquire licenses to use copies of the Products, as defined below.

2. CERTAIN DEFINITIONS. For the purpose of this Agreement, the following definitions shall apply:

2.1. The “Products” are the software programs listed in Exhibit 1.1, in the form as marketed by XYZ, and including any documentation packaged with the programs by XYZ. The Products shall include any enhancements, new releases, updates or other modifications (collectively, “Developments”) to the Programs which XYZ may release from time-to-time under the same product name or names.

2.2. An “Ordering Period” is the 12-month period commencing with the date of this Agreement, and each succeeding 12-month period.

2.3. The “Delivery Period” for each Ordering Period is the Ordering Period and the following three (3) months.

3. LICENSE.

3.1. XYZ hereby grants Licensee the right to use each copy of a Product acquired from XYZ hereunder on a single computer. Licensee may permit such use by any of its employees or independent contractors, provided that as to each copy, either (a) no more than one such party at a time is able to use each copy, or (b) if any copy is installed on a network or multi-user system where use of one copy by more than one person at a time is possible, whether by time-sharing, creation of additional copies in the memory of terminals or computers other than the one on which the software is first installed, or otherwise, Licensee has purchased a copy for each such potential user. XYZ retains title to each copy of each Product; title to the media on which the Product is provided is transferred to Licensee when payment is made.

3.2. Licensee may also:

3.2.1. Copy the Product for backup purposes.

3.2.2. Modify the Product and/or merge it into another program, in which case any portion of the Product so merged shall continue to be subject to this Agreement.

3.2.3. Transfer any copy of the Product which has not been merged or modified to a third party, provided that:

3.2.3.1. If the transferee is to receive fewer than ten (10) copies, each copy is furnished together with a copy of XYZ’s standard Program License Agreement and the transferee agrees in writing to be bound by the terms of such agreement.

3.2.3.2. If the transferee is to receive ten (10) or more copies, the transferee must be approved by XYZ and execute an XYZ Bulk License Agreement.
3.3. Rights After Transfer: If Licensee transfers any copy of a Product, Licensee must transfer or destroy any and all unmerged and unmodified copies it may have made from that copy, and destroy all modified, merged or backup copies made from the transferred copy. Any transferred copy shall no longer be counted for the purpose of authorizing use on networks or multi-user systems under Section 3.1.

4. REPRESENTATIONS AND WARRANTIES OF THE LICENSEE. Licensee represents and warrants that:

4.1. It is a corporation duly organized and validly existing under the laws of the State of _________

4.2. This Agreement has been duly and validly authorized by Licensee, and is a valid and binding agreement of Licensee enforceable in accordance with its terms.

5. ORDERS AND PAYMENT.

5.1. Licensee hereby elects the Discount Level shown in Exhibit 5.1. A separate Discount Level may be elected for each Product covered by this Agreement. At the commencement of each Ordering Period, a new discount level shall be set by mutual agreement for each Product.

5.2. Upon the commencement of each Ordering Period, Licensee shall pay to XYZ a deposit of 25% of the XYZ list price for each Product (the “Deposit”) multiplied by the maximum number of units in the Discount Level elected for the Product for the Ordering Period, reduced by the discount applicable to the Discount Level for the Product. To be eligible for a discount, each order must be received by XYZ during an Ordering Period and specify delivery during the Delivery Period for that Ordering Period.

5.3. XYZ will use all reasonable efforts to provide, by the delivery dates requested by Licensee, the units of Products ordered by Licensee. Licensee’s orders may be placed in any form, including by telex, but any such order shall be deemed to incorporate all the terms and conditions of this Agreement. Any additional or inconsistent terms or conditions in any order are hereby specifically objected to by XYZ and shall not be binding on XYZ unless agreed to in writing. Licensee acknowledges that XYZ does not retain any significant inventory of Products, and delivery may be delayed by the time required to prepare the units ordered. Returns of units ordered are not permitted.

5.4. XYZ shall invoice Licensee for each shipment, not earlier than the date of the shipment. The price for each unit of Product shall be XYZ’s standard list price in effect on the date XYZ receives the order for the unit, reduced by the applicable discount level. Invoices are payable in full within thirty (30) days. The Deposit required under Section 5.2 shall be applied in full to invoices. Late payments shall bear interest at the rate of one and one-half percent (11/2%) per month, or the highest legal rate, whichever is less. In the event of a late payment by Licensee, or the Licensee encountering financial difficulties, XYZ reserves the right to require payment in advance. All prices are F.O.B. XYZ’s offices; shipping costs will be stated on the invoices for payment by Licensee, unless shipment is freight collect.

5.5. Adjustments: At the end of each Delivery Period, the following adjustments shall be made:

5.5.1. The Discount Level finally applicable for each Product for the Ordering Period last ended shall be determined by the number of units of the Product ordered by Licensee during the Ordering Period for which delivery was taken within the Delivery Period (“Qualified Units”). This is the “Final Discount Level” for the Ordering Period.

5.5.2. The price of each order for each Product shall be recalculated using the Final Discount Level. The total of such prices is the “Final Total.”

5.5.3. If the total of the amounts paid (and invoiced but not yet paid) (including the Deposit for the Ordering Period just ended) for Qualified Units, at the Discount Level elected for each Product for the Ordering Period, is less than the Final Total, XYZ shall invoice Licensee for the difference. If the Final Total is less than the total of the amounts paid (and invoiced but not yet paid) (including the Deposit) for Qualified Units, at the Discount Level elected for each Product for the Ordering Period, the difference shall be refunded to the Licensee.

5.6. Any shipments which are delivered after the Delivery Period for the Ordering Period in which they were ordered shall be treated as if ordered and delivered in the subsequent Ordering and Delivery Periods.

5.7. XYZ’s prices are exclusive of all taxes. Licensee shall pay all taxes relating to the transfer of units of Product from XYZ to Licensee. Such taxes, except for taxes on XYZ’s net income, shall be paid by Licensee directly, or to XYZ where XYZ is required to collect such tax. In lieu of payment of a tax, Licensee may provide an exemption certificate acceptable to XYZ and the applicable taxing authority. Should an audit of either party by governmental authorities result in a claim that any such charges are due, Licensee shall pay the charges, together with all interest, penalties and other costs on demand by XYZ.

6. OBLIGATIONS OF LICENSEE.

6.1. Licensee will make diligent efforts to ensure that copying and distribution of the Products it obtains shall be in conformance with the terms of this Agreement. Licensee shall designate a single person or department to administer the terms of this Agreement and to monitor the use of the Products. Licensee shall inform all of its employees and consultants who may have access to copies of the Products that no copy other than for backup purposes may be made, and that copies must be purchased from XYZ.

6.2. Licensee shall not attempt to obtain the source code to any Product by decompilation, disassembly or other means, and shall make no copies of the software except as specifically authorized. Licensee shall promptly notify XYZ of any infringement of XYZ’s proprietary rights that comes to Licensee’s attention.

6.3. Licensee shall not export any unit of Product, directly or indirectly, to any country outside the United States or Canada without XYZ’s prior written approval.

7. WARRANTY AND LIMIT OF LIABILITY.

7.1. XYZ warrants that each disk on which a Product is recorded shall be free from defects in materials and workmanship under normal use and service for a period of ninety (90) days from the date of delivery. THE COMPUTER PROGRAMS COMPRISING THE PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND INFRINGEMENT. SHOULD ANY PROGRAM PROVE DEFECTIVE, LICENSEE SHALL BEAR THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIRER CORRECTION.

7.2. XYZ’s entire liability and Licensee’s exclusive remedy shall be the replacement of any diskette which does not meet XYZ’s Limited Warranty and which is returned to XYZ or an authorized XYZ distributor together with documentation of the date the disk was delivered to Licensee.

7.3. The warranties set forth above are exclusive and are in lieu of all other warranties, express or implied, other than the warranty regarding infringement in Article 8 below. NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS, TITLE AND AGAINST INFRINGEMENT, ARE MADE BY XYZ. The remedies contained in Section 7.2 shall not be deemed to have failed of their essential purpose so long as XYZ is making good faith efforts to correct defects under the terms of the warranty, or has made the refunds or replacements provided for. The warranties set forth herein allocate risks of product nonconformity, and XYZ’s prices reflect the allocations of such risk.

7.4. XYZ’s entire liability and Licensee’s exclusive remedy shall be as follows:

7.4.1. In all situations involving performance or nonperformance of the Products, Licensee’s remedy is the warranties in Sections 7.1 and 7.2.
7.4.2. For personal injury or damage to physical property to the extent caused by XYZ’s fault or negligence, Licensee’s remedy shall be as provided under applicable law except as limited by subsection 7.4.3.

7.4.3. For any other claim concerning performance or nonperformance by XYZ pursuant to or in any way related to the subject matter of this Agreement, or for damages for any causes whatsoever and regardless of the form of action, whether in contract or in tort including negligence, or any other legal theory, Licensee’s remedy shall be actual damages up to the amount of the payments actually made to XYZ by Licensee hereunder in the most recent twelve months prior to such damages occurring.

7.5. In no event will XYZ be liable for any lost profits or any other incidental or consequential damages, even if XYZ has been advised of the possibility of such damages. In no event will XYZ be liable for any claim against Licensee by any other party, except as provided in Article 8.

8. PATENT AND COPYRIGHT INDEMNIFICATION.

8.1. As between XYZ and Licensee, title and full ownership rights in the software and design of the Products shall remain in XYZ. It is expressly understood and agreed that the software, including but not limited to proprietary computer programs, documentation, input formats, generated output, modifications and conversions, constitute valuable proprietary products and trade secrets of XYZ embodying substantial creative efforts and confidential information, ideas and expressions which require protection against unauthorized use, transfer, reproduction, or disclosure.

8.2. XYZ warrants that the Products, when used as intended, do not infringe any patent, copyright or trade secret in the U.S. XYZ will defend at its expense any action brought against Licensee to the extent that it is based on a claim of a breach of such warranty, and XYZ will pay any costs and damages finally awarded against Licensee in such actions which are attributable to such claim, and will reimburse Licensee for attorneys’ fees reasonably incurred in connection therewith, provided that Licensee notifies XYZ promptly in writing of such claim, allows XYZ to fully control the defense of such claim and does not agree to any settlement of such claim without XYZ’s consent.

8.3. Should any Product become, or in XYZ’s opinion be likely to become, the subject of any claim of infringement, XYZ may (1) procure for the Licensee the right to continue using the Product, (2) replace or modify units previously sold to Licensee to make them non-infringing, or (3) terminate this Agreement, including the licenses granted hereunder, and refund to Licensee any amounts (but not in excess of the price per unit paid to the Licensee) paid by Licensee hereunder, less an allowance for use of each copy purchased based on straight-line depreciation over a three-year life commencing on the date of delivery.

8.4. XYZ shall have no liability for any claim of infringement based upon (1) use of other than the latest unmodified version of any Product, if the infringement would have been avoided by the use of such version, (2) use or combination of any Product with any products not supplied by XYZ, if such infringement would not have occurred without such use or combination, or (3) use of a Product after having been given notice, or having a reason to believe, that the Product infringes a trade secret of a third party, unless prompt written notice has been given to XYZ.

8.5. The foregoing states the entire liability of XYZ with respect to infringements of patents, copyrights, trade secrets or any other proprietary rights.

9. TERM AND TERMINATION.

9.1. The term of this Agreement shall end twelve (12) months from the effective date set forth above. It may be renewed by mutual agreement for one or more consecutive twelve (12) month terms.

9.2. Either party may terminate this Agreement on thirty (30) days’ written notice, for material breach by the other, unless the said breach is corrected within the said thirty (30) days or a mutually agreed time. Either party may
terminate this Agreement if the other, without curing the condition within thirty (30) days of the event, ceases doing business as a going concern, becomes insolvent, makes an assignment for the benefit of creditors, admits in writing its inability to pay its debts as they become due, files a voluntary petition in bankruptcy, is subject to an involuntary petition in bankruptcy which is not dismissed within ten (10) days, is adjudicated bankrupt or insolvent, or files or has filed against it a petition seeking any reorganization, arrangement or composition, under any presenter future statute, law or regulation.

9.3. In the event of termination other than for Licensee’s default, Licensee’s rights hereunder to use each copy of a Product previously obtained from XYZ shall survive.

10. CERTAIN REMEDIES. In the event of termination for Licensee’s default, XYZ may demand of Licensee, successively and/or concurrently, anyone or more of the following remedies:

10.1. Without retaking Products delivered to Licensee (a) recover from Licensee all accrued and unpaid payments, and other amounts then due and owing under the terms hereof, and (b) recover from Licensee from time to time all payments and other amounts as and when becoming due hereunder.

10.2. Pursue any other remedy XYZ may otherwise have hereunder, at law, in equity or under any statute and recover such other actual damages as may be incurred by XYZ, including termination of this Agreement. XYZ’s pursuit and enforcement of any one or more remedies shall not be deemed an election or waiver by XYZ of any other remedy.

10.3. Without retaking the Products delivered to and in possession of Licensee, require by written notice that Licensee immediately cease all use of the Products until all events of default have been fully cured.

11. ARBITRATION.

11.1. Except for the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm pending the selection and confirmation of an arbitrator, and for the right of XYZ to bring suit on an open account for simple monies due XYZ, any dispute between XYZ and Licensee under this Agreement involving its interpretation or the obligations of a party thereto, shall be determined by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association, in _________[city, state], before a single arbitrator.

11.2. The arbitrator shall be an attorney at law with a background or training in either computer law or marketing of computer industry products.

11.3. The arbitrator shall have the authority to permit discovery, to the extent deemed appropriate by the arbitrator, upon request of a party. The arbitrator shall have no power or authority to add to or detract from the agreements of the parties, and the cost of the arbitration shall be borne equally. The arbitrator shall have the authority to grant any temporary, preliminary or injunctive relief in a form substantially similar to that which would otherwise be granted by a court of law. The arbitrator shall have no authority to award punitive or consequential damages. The resulting arbitration award may be enforced, or injunctive relief may be sought, in any court of competent jurisdiction. The parties expressly stipulate that the Superior Court of _________[county, state], or the United States District Court for _________ are courts of competent jurisdiction for this purpose.

12. FORCE MAJEURE.

12.1. Neither party shall be responsible for delays or failures in performance resulting from causes beyond the control of such party. Such causes shall include, but not be limited to, inability to obtain export licenses or import authorization, acts of God, strikes, lockouts, riots, acts of war, epidemics, government regulations imposed after the fact, fire, communications line failures, equipment failures, power failures, or earthquakes. However, in the event that Licensee’s performance of any of its obligations hereunder is so delayed for more than thirty (30) days, XYZ may perform such obligations and deduct the cost of such performance from the royalties otherwise payable.

13. GENERAL.

13.1. Notices: All notices shall be in writing and deemed given and received (i) when delivered, if delivered in person, (ii) five (5) business days after mailing, if by certified or registered mail, return receipt requested, unless the receipt shows a different date of receipt, or (iii) the next business day after delivery, if by commercial overnight courier, unless the courier’s records indicate a different date of receipt. Notices shall be addressed to each party at its address set forth above, or such other address as the recipient may have specified by earlier notice to the sender. Notice to XYZ shall be to the attention of the President, with a copy to the General Counsel; notice to Licensee shall be sent to the attention of: _________.

13.2. Assignment; Successors: This Agreement shall not be assigned by either party without the advance written consent of the other, provided that either party may assign this Agreement in its entirety to a successor to all or a substantial portion of its business. This Agreement shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns.

13.3. Entire Agreement: This Agreement constitutes the entire Agreement between the parties with respect to its subject matter; except as provided herein, all other prior agreements, representations, statements, negotiations and undertakings are terminated and superseded hereby.

13.4. Independent Contractors: The parties shall at all times be independent contractors with respect to each other in carrying out this Agreement.

13.5. Amendments: No amendment to this Agreement shall be effective unless it is in writing and signed by a duly authorized representative of each party. The term “Agreement,” as used herein, includes any future written amendments, modifications, or supplements made in accordance herewith.

13.6. Headings Not Controlling: Headings used in this Agreement are for reference only and shall not be deemed a part of this Agreement.

13.7. Survival: After expiration or termination of this Agreement, all provisions relating to payment shall survive until completion of required payments. In addition to those provisions which specifically provide for survival beyond expiration or termination, all provisions regarding indemnification, warranty, liability and limits thereon, and confidentiality and/or protection of proprietary rights and trade secrets shall survive, unless and until the expiration of any time period specified elsewhere in this Agreement with respect to the provision in question.

13.8. Consent to Breach Not Waiver: No term or provision hereof shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any other different or subsequent breach.

13.9. Severability: In the event any provision of this Agreement is held illegal, void or unenforceable, to any extent, in whole or in part, as to any situation or person, the balance shall remain in effect and the provision in question shall remain in effect as to all other persons or situations, as the case may be.

13.10. Governing Law: This Agreement shall be deemed to have been made in _________[state], and shall be governed by and construed in accordance with the laws of _________[state], exclusive of its rules governing choice of law and conflict of laws.

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives:
XYZ, INC.

LICENSEE

By:_________

Title:_________

Date:_________

Exhibit 1.1.

List of Products

Exhibit 5.1.

Discount Levels

Level Number

Number of Units

Discount Percentage

x–y

Download Bulk License Agreement in Word Format

Sample Search Forms:

Beta Test License Agreement

forms — Tue, 16 Aug 2011 12:19:32 +0000

Beta test license agreement.

THIS AGREEMENT is made and entered into on _________[date], by and between _________, a _________ corporation located at _________(“Vendor”), and _________, a _________ corporation located at _________(“Licensee”).

BACKGROUND

A. Vendor is in the process of developing a new software product designed to _________(the “Pre-Release Software”), which Vendor hopes to market in the near future.

B. Vendor would like to field-test a preliminary version of its Pre-Release Software so as to further refine and modify the product before it is generally released.

C. Licensee has expressed an interest in licensing a copy of the Pre-Release Software in advance of its general release in order to evaluate the Pre-Release Software for its own purposes and to assist Vendor in refining and modifying the Pre-Release Software so that it becomes more useful for its intended market (“Beta Test”).

D. In exchange for early access to the Pre-Release Software, Licensee agrees to serve as a Beta Test site for the Pre-Release Software and to provide Vendor with its comments, criticisms, suggestions, and evaluations with respect to the Pre-Release Software during the Beta Test period.

NOW, THEREFORE, the parties hereby agree as follows:

1. LICENSE GRANT

Vendor grants to Licensee, during the term of this Agreement, a temporary, non-exclusive license to use an executable version of the Pre-Release Software and its related documentation, for evaluation purposes, on [a single/_________] microcomputer(s) located at the address set forth above. Licensee may make copies of the Pre-Release Software for back-up purposes only, provided that Licensee reproduces Vendor’s copyright and other proprietary rights notices on all such copies. This license does not include any rights to disclose, sublicense, or otherwise transfer the Pre-Release Software, related documentation, or other proprietary information of Vendor.

2. BETA TEST

Licensee understands and acknowledges that (i) it is participating in Vendor’s Beta Test for the Pre-Release Software, (ii) it is receiving a preliminary version of the Pre-Release Software, and (iii) the Pre-Release Software may not operate properly, may not perform all functions for which it is intended or represented, and may not operate error-free. Licensee agrees to use the Pre-Release Software primarily for purposes of evaluation, agrees to provide Vendor with its comments, criticisms, and suggestions for changes with respect to the Pre-Release Software, and agrees to help Vendor identify any and all errors or malfunctions in the operation of the Software.

[ALT] Licensee understands and acknowledges that (i) it is participating in Vendor’s Beta Test for the Pre-Release Software, (ii) it is receiving a preliminary version of the Pre-Release Software, and (iii) the Pre-Release Software may not operate properly, may not perform all functions for which it is intended or represented, and may not operate error-free. Licensee agrees to use the Pre-Release Software primarily for purposes of evaluation and to participate in Vendor’s Beta Test as follows:

(a). For a period of _________ days from the date Licensee receives the Pre-Release Software (the “Test Period”), Licensee shall perform the tests outlined in the Beta Test Plan attached as Exhibit A. Licensee shall keep a written record of the test results together with any unusual, unplanned, or
extraordinary events observed by Licensee respecting the Beta Test Plan, supported by data, printouts, or other evidence of such events as appropriate.

(b). From time to time throughout the Beta Test period, Vendor may require additional or modified tests of the Pre-Release Software not set forth in the Beta Test Plan. Such tests will generally relate to modifications made to the Pre-Release Software. Any such additional or modified tests shall be performed by Licensee and the results recorded in the Beta Test Plan.

(c). Licensee’s personnel shall report each instance of any failure or malfunction of the Pre-Release Software (“Program Failure”) in full (including, without limitation, description of the application then underway and the specifics of the Program Failure). If any Program Failure results in damage to files or data or if the frequency of Program Failures is excessive under the circumstances, Licensee shall also promptly notify Vendor of this fact. Copies of the reports regarding Program Failures shall be forwarded to Vendor.

(d). Following termination of the Beta Test period, the Licensee shall prepare a Beta Test completion report as outlined in the Beta Test Plan. After the completion report has been submitted to the Vendor, the Beta Test of the Pre-Release Software will be deemed completed.

3. OWNERSHIP

The Pre-Release Software, the related documentation, and all authorized copies thereof shall remain the exclusive property of Vendor and shall not be used in any way other than as allowed by this Agreement. Licensee acknowledges that, as between Vendor and Licensee, the Pre-Release Software and its related documentation and all copyrights, trade secret rights, and other intellectual property rights with respect thereto, are and will at all times be the property of Vendor, even if suggestions made by Licensee are incorporated into subsequent versions of the Pre-Release Software or related documentation.

4. CONFIDENTIALITY

Licensee acknowledges that the Pre-Release Software, related documentation, and other related materials provided by Vendor, and the Beta Test results compiled by Licensee, are the confidential information of Vendor (“Confidential Information”). Licensee agrees to use the Confidential Information only for the limited term of this license and solely for the purpose of participating in Vendor’s Beta Test, and further agrees to take all steps reasonably necessary to maintain and protect the Confidential Information in the strictest confidence for the benefit of Vendor. Licensee agrees that it will not at any time, without the express written permission of Vendor, disclose the Confidential Information directly or indirectly to any third person, except to employees of Licensee who have expressly agreed in writing to be bound by the terms of this Agreement.

Confidential Information shall not include information that is (1) already in the public domain; (2) becomes generally known or available by publication, commercial use, or general sale of copies of the Pre-Release Software by Licensee; (3) discovered or created by Licensee independent of any involvement with Vendor or the Pre-Release Software; or (4) otherwise learned by Licensee through legitimate means other than from Vendor or anyone connected with Vendor.

Licensee’s obligations with respect to the Confidential Information shall continue for the shorter of _________ (—) years from the date of its receipt of the Confidential Information, or until such information is subject to one of the exclusions set forth above.

5. DISCLAIMER OF ALL WARRANTIES

LICENSEE ACKNOWLEDGES AND UNDERSTANDS THAT IT IS RECEIVING A PRELIMINARY BETA TEST VERSION OF THE PRE-RELEASE SOFTWARE AND RELATED DOCUMENTATION
THAT THE PARTIES EXPECT MAY CONTAIN SIGNIFICANT ERRORS, OMISSIONS, AND PROBLEMS. LICENSEE AGREES AND ACKNOWLEDGES THAT VENDOR SHALL HAVE NO RESPONSIBILITIES TO LICENSEE TO CORRECT ANY DEFECTS OR PROBLEMS IN THE PRE-RELEASE SOFTWARE OR THE RELATED DOCUMENTATION, OR TO ASSURE THAT THE PRE-RELEASE SOFTWARE OPERATES PROPERLY. VENDOR DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE PRE-RELEASE SOFTWARE AND THE RELATED DOCUMENTATION, WHETHER EXPRESS OR IMPLIED, INCLUDING SPECIFICALLY THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE PRE-RELEASE SOFTWARE AND THE RELATED DOCUMENTATION IS PROVIDED “AS IS”, AND LICENSEE UNDERSTANDS THAT IT ASSUMES ALL RISKS OF ITS USE, QUALITY, AND PERFORMANCE.

6. DISCLAIMER OF LIABILITY

BECAUSE OF THE NATURE OF THIS BETA TEST AGREEMENT, LICENSEE AGREES AND ACKNOWLEDGES THAT VENDOR SHALL HAVE NO LIABILITY WHATSOEVER TO LICENSEE FOR ANY PROBLEMS IN OR CAUSED BY THE PRE-RELEASE SOFTWARE OR THE RELATED DOCUMENTATION, WHETHER DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL (INCLUDING LOSS PROFITS).

7. TERM AND TERMINATION

The term of this Agreement shall be for a period of _________ days, unless sooner terminated as provided herein. Either party, however, may terminate this Agreement at any time upon five (5) days’ written notice.

Upon termination of this Agreement, Licensee will (i) erase or otherwise destroy all copies of the Pre-Release Software that are fixed or resident in the memory or hard disks of computers owned or controlled by Licensee and (ii) return to Vendor all other existing copies (including original copies) of part or all of the Pre-Release Software and related documentation.

8. GENERAL PROVISIONS

(a). Assignment. This Agreement may not be assigned by Licensee or by operation of law to any other person, persons, firms, or corporations without the express written approval of Vendor.

(b). Notices. All notices and demands hereunder shall be in writing and shall be served by personal service or by mail at the address of the receiving party set forth in this Agreement (or at such different address as may be designated by such party by written notice to the other party). All notices or demands by mail shall be by certified or registered mail, return receipt requested, or by nationally-recognized private express courier, and shall be deemed complete upon receipt.

(c). Governing Law. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of _________.

(d). Relationship of the Parties. Each party is acting as an independent contractor and not as an agent, partner, or joint venturer with the other party for any purpose. Except as provided in this Agreement, neither party shall have any right, power, or authority to act or to create any obligation, express or implied, on behalf of the other.

(e). Survival of Certain Provisions. The obligation of confidentiality set forth in the Agreement shall survive the termination of the Agreement by either party for any reason.

(f). Headings. The titles and headings of the various sections and paragraphs in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever or to explain, modify, or place any construction on any of the provisions of this Agreement.

(g). All Amendments in Writing. No provisions in either party’s purchase orders, or in any other business forms employed by either party, will supersede the terms and conditions of this Agreement, and no supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement.

(h). Entire Agreement. The parties have read this Agreement and agree to be bound by its terms, and further agree that it constitutes the complete and entire agreement of the parties and supersedes all previous communications, oral or written, and all other communications between them relating to the license and to the subject matter hereof. No representations or statements of any kind made by either party that are not expressly stated herein shall be binding on such party.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth above.

VENDOR:

LICENSEE:

By: _________

Its: _________

EXHIBIT A.

BETA TEST PLAN

Download Beta Test License Agreement in Word Format

Sample Search Forms:

Software Publishing and Distribution Agreement

forms — Tue, 16 Aug 2011 12:17:18 +0000

Software publishing/distribution agreement—Value-added reseller license.

VALUE-ADDED RESELLER AGREEMENT

This Agreement is effective on this day of _________[date], by and between _________, a corporation of the State of _________, having a place of business at _________(referred to in this Agreement as “Licensor”) and _________, a VALUE ADDED RESELLER, a corporation of the State of _________ with offices at _________(referred to in this Agreement as “Reseller”).

Recitals:

Licensor is the owner of all right, title, and interest in and to certain INTELLECTUAL PROPERTY RIGHTS (as defined below) in PROGRAMS (as defined below); and

Among such INTELLECTUAL PROPERTY RIGHTS, Licensor is the owner of all right, title, and interest in and to COPYRIGHTS (as defined below); and

Reseller is well experienced in selling, maintaining, and distributing computer programs, particularly in the DESIGNATED INDUSTRY (as defined below); and

Reseller is also desirous of being a VALUE ADDED RESELLER (as defined below) of the PROGRAMS; and

Licensor is willing to grant certain licenses to Reseller so as to have Reseller as a VALUE ADDED RESELLER.

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements herein made, the parties hereto have agreed and do agree as follows:

ARTICLE I.

DEFINITIONS

As used in this Agreement, the following terms shall have the following meanings:

1. AFFILIATE shall mean any ENTITY having any relationship, contract, or arrangement with Reseller with respect to any matter which affects or is affected by this Agreement in which Reseller has or exercises or has the power to exercise, directly or indirectly (in any manner) control, direction, or restraint of such ENTITY, or in which such ENTITY has the power to exercise, directly or indirectly (in any manner) control, direction, or restraint of Reseller, or in which such ENTITY and Reseller are subject to common or mutual control, direction, or restraint.

2. COPYRIGHTS shall mean any and all copyrights in and to the PROGRAMS, including any continuation, extensions, or renewals thereof.

3. CUSTOMER-SUBLICENSEE is any ENTITY which receives the right to use any PROGRAM from Reseller or any PROGRAM combined with any IMPROVEMENT from Reseller.

4. DESIGNATED INDUSTRY means _________.

5. DOCUMENTATION shall mean the source code and written information which enables Licensor to understand the purpose and functionality of the FINAL PRODUCT and each IMPROVEMENT included therein and to enable Licensor to combine each such IMPROVEMENT with a PROGRAM.

6. EMPLOYEE means an employee, outside consultant, outside attorney, outside accountant, or any other ENTITY engaged to assist Reseller.
7. ENTITY means any individual, partnership, joint venture, corporation, or the like.

8. FINAL PRODUCT means IMPROVEMENT(s) sold separately or combined with any PROGRAM(s) ready to be distributed to a CUSTOMER-SUBLICENSEE.

9. IMPROVEMENTS includes, but is not limited to, the programs, routines, subroutines, translators, compilers, assemblers, operating systems, conversion filers, encryption and encryption algorithms and codes, protocol modifications made thereto, and all support documentation related thereto, including, but not limited to, flowcharts, instructions, end-user manuals, demonstration models and test aids, including any and all updates and modifications made thereto, which Reseller has developed or will be developed by or for Reseller for the purpose of exploiting the distribution of the PROGRAMS as a VALUE-ADDED RESELLER in the TERRITORY of the FINAL PRODUCT. In any FINAL PRODUCT, PROGRAMS shall be provided as an integrated whole with any IMPROVEMENTS and shall not be sold separately or be separable from any IMPROVEMENTS.

10. INFORMATION shall mean any and all information relating to or arising out of said PROGRAMS and/or IMPROVEMENTS, including, and without limitation, trade secrets and any and all embodiments and representations of said INTELLECTUAL PROPERTY RIGHTS. Trade secrets shall also include the definition of trade secrets as set forth in the Restatement of Torts.

11. INTELLECTUAL PROPERTY RIGHTS shall include, but not be limited to the following: rights in know-how, trademarks, copyrights, patents, patent applications (including reissues, renewals, continuations, continuations-in-part, or divisions of any patent or patent application), trade secrets, instructions, improvements, modifications, suggestions, proposals, programs, ideas, writings, and the like of any sort whatsoever, and any embodiment thereof including, but not limited to, computer programs, DOCUMENTATION, documentation of programs, assembly and detailed drawings, plans, specifications, results of technical investigations and research, assembly, and parts manuals, and any other proprietary information.

12. MATERIAL REQUIRING APPROVAL means the PROGRAMS and/or IMPROVEMENTS and/or IMPROVEMENTS and any and all packaging, advertising, promotional and display material upon which or in connection with which any TRADEMARK is used.

13.

(a). NET LICENSING PRICE shall mean, whichever is greater, either:

(A). the gross price for licensing including, without limitation, installation, modification, consulting, and other related fees (i.e., the total consideration) paid or agreed to be paid to Reseller in a bona fide arm’s-length transaction with a non-AFFILIATE or non-SUBSIDIARY consummated by transfer of a copy of a PROGRAM from Reseller and includes any and all fees charged for installation and/or implementation of any PROGRAM to a third party or parties, less the following amounts but only insofar as they pertain to the disposition of such PROGRAM by Reseller and are not reimbursed by the non-AFFILIATE or non-SUBSIDIARY:

(i) Separately billed transportation charges;

(ii) Separately billed packing charges;

(iii) Federal, state, or local sales, excise, or use taxes imposed upon the transaction, or upon the subject matter of such transaction; or

(iv) Trade discounts and quantity discounts, if any, actually allowed and taken in such amounts as are customary in the trade.

(B). With respect to any PROGRAMS used, leased, licensed, or otherwise disposed of in accordance with the express conditions of this Agreement by Reseller in a transaction not within the scope of subparagraph (a) of this paragraph, NET LICENSING PRICE shall mean, which ever is greater, either: (A) the average NET LICENSING PRICE of like PROGRAMS licensed for use and which would otherwise qualify under subparagraph (a) of this paragraph which licenses were made over a period beginning with a date _________ months before the transaction and ending with a date _________ months after such transaction, or if there is no available reference means, as described hereinbefore, then the NET LICENSING PRICE shall be the fair market value of such a license for such PROGRAMS which shall be determined in accordance with the regularly established cost and pricing practices of any competitor of Reseller shall license the most nearly related product at approximately the date of the transaction.

14. PROGRAMS shall mean, alone or in combination, the programs which make up the _________[sup_start]T[sup_end][sup_start]M[sup_end] computer programs and documentation, including _________ as further identified in the attachment hereto as Exhibit A.

15. SUBSIDIARY shall mean any ENTITY with respect to which Reseller owns or controls, directly or indirectly, fifty percent (50%) or more of the stock entitled to vote for the election of directors or persons performing similar functions, excluding Licensor.

16. SUPPORT SERVICES shall mean installation, training, the answering of questions, and related services provided to a CUSTOMER-SUBLICENSEE or potential CUSTOMER.

17. TERRITORY means _________.

18. TRADEMARK shall mean any term or terms supplied by Licensor and used in any form or format, style or design, as applied to the PROGRAMS and IMPROVEMENTS in whatever form and identifies business names, trademarks, and service marks, as well as any goodwill and rights, at common law or otherwise, pertinent thereto, and refers to trademarks, service marks, and trade names.

19. TRADEMARK REGISTRATIONS shall mean any United States Trademark Registration or any other application or registration, foreign or domestic, made by Licensor now or hereafter obtained.

20. VALUE ADDED RESELLER shall mean a provider of PROGRAM(s) with IMPROVEMENTS to CUSTOMER-SUBLICENSEES.

ARTICLE II.

GRANTS

1. Licensor hereby grants and agrees to grant to Reseller, in its capacity as a DISTRIBUTOR, a nonexclusive, worldwide, nontransferable, nonassignable license to Reseller in so much of the COPYRIGHT as to enable Reseller to make copies of the PROGRAMS, use copies of the PROGRAMS, and to grant sublicenses to CUSTOMER-SUBLICENSEES’ use only of copies of the PROGRAMS. This license does not include the right to sell, encumber, or otherwise transfer title, in whole or in part, in any copy of the PROGRAM or the INTELLECTUAL PROPERTY RIGHTS therein.

2. Licensor hereby grants and agrees to grant to Reseller the right to use all INFORMATION which, in Licensor’s sole discretion, is necessary for Reseller to prepare or have prepared IMPROVEMENTS and/or FINAL PRODUCTS.

3. The licenses granted in this Agreement shall continue for the period of the life of any patent or patents issuing on the PROGRAM and for the life of any COPYRIGHT.

4. Any license granted by Reseller shall provide for the return of all copies of the PROGRAM to Reseller upon termination of such license.

5. Reseller hereby conveys and agrees to convey to Licensor all right, title, and interest in and to all INTELLECTUAL PROPERTY RIGHTS in and to any IMPROVEMENTS or any IMPROVEMENT to any IMPROVEMENTS or PROGRAM(s) and/or any FINAL PRODUCT. Licensor hereby grants Reseller a nonexclusive, nontransferable, nonassignable license in the TERRITORY for such INTELLECTUAL PROPERTY RIGHTS in the IMPROVEMENTS and any IMPROVEMENT to any IMPROVEMENTS.

6. Licensor hereby grants and agrees to grant to Reseller a royalty free, nonexclusive right to use any TRADEMARK and any TRADEMARK REGISTRATION in connection with the distribution of the PROGRAM to any CUSTOMER-SUBLICENSEE.

7. Any use by Reseller of any TRADEMARK shall be deemed a use on behalf of and as agent for Reseller.

8. No other right or license is granted by Licensor to Reseller, either expressed or implied, with respect to any other INTELLECTUAL PROPERTY RIGHT owned, possessed, or in which Licensor has or will have any other rights except as expressly set forth in this Agreement.

ARTICLE III.

RESELLER’S PERFORMANCE AS DISTRIBUTOR

1. Reseller shall distribute the PROGRAMS by way of a license to use only. Under no circumstances shall Reseller part with or encumber the title in the INTELLECTUAL PROPERTY RIGHTS in any copy of any PROGRAM. Any license to use the PROGRAMS provided by Reseller shall require that any and all copies of any PROGRAM shall be returned to Reseller upon the termination of the license to use.

2. Reseller shall cause to be placed on any machine-readable copy the following copyright notice:

The notice shall be placed in such a manner that on visually perceptible printouts it appears either with or near the title, or at the end of each separable part of the PROGRAM, IMPROVEMENT, and/or FINAL PRODUCT. Where the PROGRAM, IMPROVEMENT, and/or FINAL PRODUCT is printed documentation (and, therefore, not machine readable) the notice shall be displayed on the title page or the following page.

3. Reseller shall provide Licensor a copy of the PROGRAM at least annually from the effective date of this Agreement and at any other times when Reseller makes a new version available to its CUSTOMER-SUBLICENSEES.

4. Reseller shall provide a sublicense agreement to CUSTOMERS-SUBLICENSEES which shall be approved by Licensor in advance and in writing, in Licensor’s sole and exclusive discretion. No PROGRAM shall be distributed by Reseller until such a sublicense agreement has been approved by Licensor and signed by the CUSTOMER-SUBLICENSEE.

5. Reseller shall require all CUSTOMER-SUBLICENSEES to enter into a written form sublicense agreement as a condition precedent to their receiving any copy of any PROGRAM, any IMPROVEMENT. The terms and conditions of the form sublicense agreement shall be approved by Licensor in advance of its use by Reseller. Such approval shall be in writing and in Licensor’s sole and exclusive discretion. No PROGRAM or IMPROVEMENT shall be distributed by Reseller to any CUSTOMER-SUBLICENSEE until such a sublicense form agreement has been approved by Licensor. No change shall be made to the form sublicense agreement with Licensor’s prior written approval. The requirements of this paragraph shall not apply to the amounts charged by Reseller to any CUSTOMER-SUBLICENSEE to be included in any such form sublicense agreement.

6. Reseller shall promptly do such acts and execute, acknowledge, and deliver all such papers, including, without limitation, recordable assignments, as may be necessary or desirable, in the reasonable discretion of Licensor, to obtain, maintain, protect, and vest in Licensor the entire right, title, and interest in and to INTELLECTUAL PROPERTY RIGHTS in and to the PROGRAMS, IMPROVEMENTS and/or FINAL PRODUCTS to be assigned herein by Reseller including rendering such assistance as Licensor may reasonably request in any contemplated or pending litigation, Copyright Office, Patent and Trademark Office proceeding, or other proceeding.

ARTICLE IV.

RESELLER’S PERFORMANCE AS A VALUE ADDED RESELLER

1. Reseller may provide IMPROVEMENTS to be integrated with the PROGRAMS.

ARTICLE V.

MARKING, QUALITY CONTROL, AND MAINTENANCE

1. No copy of any PROGRAM or FINAL PRODUCT may be distributed unless identified by the TRADEMARK.

2. Reseller shall not use the TRADEMARK on the PROGRAMS or FINAL PRODUCT, or the packaging and labelling therefor (or otherwise in such manner as to be misleading with respect to the ownership of the TRADEMARK), or to create a composite trademark with the TRADEMARK, any other trademark, name, service mark, or mark except with Licensor’s prior written consent which Licensor may withhold at its discretion.

3. Reseller will not adopt, or use the TRADEMARK as any part of its corporate name or any trade name used by it, except with the prior written consent of Licensor, which Licensor may withhold at its discretion.

4. Reseller, shall use upon or in connection with the PROGRAMS and/or IMPROVEMENTS a [sup_start]T[sup_end][sup_start]M[sup_end] or, where a United States Federal Trademark Registration has been obtained, an ®. Reseller shall not otherwise affix or use such ® in connection with the TRADEMARK nor use any other trademark or trade name in connection with the PROGRAMS and/or FINAL PRODUCT without Licensor’s prior written approval.

5. From time-to-time, and at its discretion, Licensor may review any MATERIAL REQUIRING APPROVAL to see that its quality is consonant with the quality of the TRADEMARK and the goods it identifies.

6. At such stage as Reseller may determine that it has a FINAL PRODUCT, it shall notify Licensor, providing _________[number] samples of the FINAL PRODUCT, at least one of which must be in machine readable form, and all DOCUMENTATION for the program. No PROGRAM and/or IMPROVEMENT shall be licensed without Reseller having first submitted a FINAL PRODUCT to Licensor for Licensor’s approval.

7. In exercising the right to grant or withhold any approval required or permitted by this Agreement, Licensor shall be bound by the quality of the PROGRAM(s) as provided to Reseller by Licensor from time-to-time and such shall be the standard applied to the MATERIALS REQUIRING APPROVAL.

8. Reseller shall not release or distribute any MATERIALS REQUIRING APPROVAL without the approvals provided above. The withholding at any point of approval pursuant to this Agreement shall not result in any liability by Licensor to Reseller on account thereof.

9. Reseller shall submit for Licensor’s approval one (1) sample of each MATERIAL REQUIRING APPROVAL. Any MATERIAL REQUIRING APPROVAL not expressly disapproved in writing by Licensor within _________ business days of receipt shall be deemed to be disapproved.

10. During the term of this Agreement, Reseller shall submit to Licensor at least annually, and at more frequent intervals, if requested in writing by Licensor, one production specimen of any previously approved MATERIALS REQUIRING APPROVAL.
ARTICLE VI.

TRADEMARK REGISTRATION

1. Licensor may file for trademark registration of the TRADEMARK(s) for the PROGRAM and/or IMPROVEMENTS in the United States and may file in other countries in its name where such TRADEMARK(s) are or will be used and subject to any such country’s filing requirements. If such use of a trademark outside of the United States shall be only in the DESIGNATED INDUSTRY, Reseller shall pay all of Licensor’s actual out-of-pocket expenses, including attorney’s fees, government filing fees, and the like, in connection therewith where such application for registration includes therein the PROGRAM and/or IMPROVEMENTS.

2. At the request of Licensor, and without compensation to Reseller, Reseller shall promptly do such acts and execute, acknowledge, and deliver all such papers as may be necessary or desirable, in the sole discretion of Licensor, to obtain, maintain, protect, and/or vest in Licensor the entire right, title, and interest in and to any TRADEMARK in all countries of the world; including rendering such assistance as Licensor may request in any litigation, Patent and Trademark Office proceeding, or other proceeding.

3. Reseller will not register, or cause to be registered, the TRADEMARK, or any trademark, name, or mark confusingly similar thereto, with any federal, state, provincial, municipal, or other governmental authority of any jurisdiction whether within, or without, the Territory.

ARTICLE VII.

VALIDITY OF RIGHTS

1. Reseller shall not contest Licensor’s ownership of any TRADEMARK(s) or Reseller’s obligation to assign any rights hereunder including any rights Reseller may create in the TRADEMARK. Reseller shall not contest or impair these rights, either directly or indirectly, or in any way assist others to contest or impair the same and hereby expressly acknowledge Licensor’s superior rights. This obligation shall survive any termination of this Agreement.

ARTICLE VIII.

ROYALTIES

1. Reseller shall pay to Licensor a minimum annual royalty of $_____ for the term of this Agreement.

2. Reseller hereby pays and agrees to and does pay on _________[month and day] and annually on _________[month and day] of each year the minimum royalty.

3. Reseller shall pay to Licensor a royalty of _____% of the NET LICENSING PRICE on any PROGRAM.

4. Reseller shall exercise its best efforts in the making and licensing the use of the PROGRAMS as a DISTRIBUTOR and as a VALUE ADDED RESELLER.

5. Time of payment of all royalties herein is of the essence.

ARTICLE IX.

FORCE MAJEURE

1. Neither party shall be responsible for any failures or delays which are due to causes beyond its control, including, without limitation, acts of God, acts of government, war, fires, floods, or strikes.

ARTICLE X.
RECORDS

1. Reseller shall keep full and accurate written records in sufficient detail and in accordance with this Agreement, to permit verification of the sums payable under this Agreement.

2. Reseller shall have these records available at its offices during normal working hours for inspection by Licensor or any representative of Licensor; such choice of representative shall be at the sole option and expense of Licensor.

3. Reseller shall keep and maintain, at its regular place of business, complete books and records of all business transacted by Reseller and in connection with licensing of the PROGRAMS. Such books and records shall be maintained in accordance with generally accepted accounting principles. At reasonable times during the Licensee’s regular business hours, independent certified public accountants designated by Licensor, or other designated representatives of Licensor, shall have the right, at Licensor’s expense, to inspect the books and records at Reseller’s premises for the purpose of verifying the accuracy thereof and of the payments and reports required by this Agreement. Licensor shall maintain the confidence of Reseller’s books and records and shall direct any accountant or other representative of Licensor to maintain the confidence of such books and records, but Licensor shall be entitled to use such books and records in any administrative or court proceeding to enforce its rights pursuant to this Agreement. If, as a result of such examination or audit, Licensor shall determine that the amount of royalties due Licensor was greater than the amount of royalties reported by Reseller, Licensor shall promptly furnish to Reseller a copy of Licensor’s report setting forth the amount of the deficiency in the payment of royalties and showing, in reasonable detail, the basis upon which the deficiency was determined. If Reseller disputes the deficiency, Reseller shall be afforded a reasonable opportunity to meet with Licensor to resolve any disputes. Within _________ calendar days following the date of delivery to Reseller of the report of the deficiency, Reseller shall pay to Licensor a sum equal to that portion of the claimed deficiency as to which there remains no bona-fide dispute, together with interest thereon at the lower of _____% per month, or the highest rate allowed by applicable law, from the date when such amount was originally due to the date of payment.

4. If, as a result of any such inspection it is determined that the deficiency due Licensor from Reseller is an amount equal to, or greater than, _____% of the royalty payments made by Reseller to Licensor during the period in question, Reseller shall promptly reimburse Licensor for the total reasonable cost of such inspection, audit, or any litigation arising therefrom.

5. It is understood and agreed that any such inspection of Reseller’s books and records by Licensor, or its representatives, shall be undertaken in a manner that will not unreasonably interfere with, or hamper Reseller’s normal business operations at the site of the inspection. Licensor agrees that such books and records are proprietary and confidential to Reseller shall be considered as between the parties hereto, the sole and exclusive property of Reseller. Reseller shall maintain such books and records for a period not less than _________ years after the termination or expiration of this Agreement. This paragraph shall survive the termination or expiration of this Agreement.

ARTICLE XI.

REPORTS

1. Within _________ days following the end of each calendar quarter in which the first license of the use of a PROGRAM takes place, Reseller shall submit to Licensor a written report of all PROGRAMS and IMPROVEMENTS licensed by Reseller prior to and including the last day of such calendar quarter. The report shall:

(a) Identify each PROGRAM(s) and IMPROVEMENTS by model number or trademark;

(b) Identify each CUSTOMER-SUBLICENSEE by name, address, telephone number, contact person and their respective use of the PROGRAM(s) and/or FINAL PRODUCT;

(d) Itemize claimed deductions in accordance with Article I, ¶14, if any;
(e) Set forth the royalties due under this Agreement from Reseller;

(f) Set forth the manner of determining such royalties.

At the time of submission of the report, Reseller shall make full payment of all the sums computed to be due according to the report.

2. Reseller shall furnish to Licensor, within _________ days after the termination of this Agreement, a report covering the period from the last day reported on in the previous report and shall accompany its report with full payment of all sums computed therein and all other sums due but previously unpaid.

3. Reseller shall furnish whatever additional information Licensor may reasonably prescribe from time-to-time to enable Licensor to ascertain the royalties due Licensor under this Agreement and to monitor distribution and licensing of the PROGRAMS, IMPROVEMENTS, and FINAL PRODUCTS.

4. The time(s) of making any report and the payment of any sums due under this Article shall be of the essence.

ARTICLE XII.

WARRANTIES

1. Licensor warrants that there are no outstanding agreements, understandings, or other restrictions which would prevent it from performing under this Agreement. Licensor shall hold harmless and indemnify Reseller, its agents, customer, successors and assigns, from any claims, loss, damages, or liability related to or growing out of any breach by Licensor of said agreements, understandings, or other restrictions.

2. Reseller warrants that there are no outstanding agreements, understandings, or other restrictions which would prevent it from performing under this Agreement. Reseller shall hold harmless and indemnify Licensor, its agents, customer, successors and assigns, from any claims, loss, damages, or liability related to or growing out of any breach by Reseller of said agreements, understandings, or other restrictions.

3. Licensor does not make any warranty or representation to Reseller that the INTELLECTUAL PROPERTY RIGHTS being licensed in accordance with this Agreement shall be free of any claims which may be made by a third party, and Licensor shall not be liable with respect to any claim of any third party on account of or arising from the use of such INTELLECTUAL PROPERTY RIGHTS; provided, however, that in the event that such claim shall be made and prove successful barring further use by Reseller of the INTELLECTUAL PROPERTY RIGHTS licensed herein, then, upon final determination of such claim, any of Reseller’s actual out of pocket expenses in defending such claim may first be deducted from any and all further royalties due Licensor.

4. Notwithstanding any other term or condition in this Agreement, Licensor warrants that it is the owner of all right, title, and interest in and to the COPYRIGHT in the PROGRAMS.

5. Reseller acknowledges and agrees that Licensor retains ownership of the underlying ideas, concepts, and designs in the PROGRAM and that the rights of Reseller and those of its CUSTOMER-SUBLICENSEES are limited to those granted in this Agreement.

6. Licensor has made no warranty of any kind, express or implied, and THERE IS EXPRESSLY EXCLUDED ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE regarding the PROGRAMS. Reseller has had full use of an evaluation copy of the PROGRAM for six months and has ascertained for itself knowledge as to the functionality and suitability of the PROGRAM for its purposes. Therefore, Reseller shall hold Licensor harmless from any and all claims, damages, loss or liability arising out of the licensing and/or use of the PROGRAM. Reseller expressly waives any and all rights against Licensor it may have under the Uniform Commercial Code.
7. Reseller warrants that it shall indemnify, hold harmless, and defend (and to pay any and all attorney’s fees, in connection therewith) Licensor and its officers, directors, agents, and employees, from and against:

(a) an alleged unauthorized use of any patent, trademark, design, or copyright (not including any right licensed hereunder) by Reseller any officers, employees, or subcontractors;

(b) any alleged libel or slander against, or invasion of, the right of privacy or publicity or any other similar right of any third party (not including any right licensed hereunder);

(c) any alleged defect in any PROGRAM and/or IMPROVEMENT despite Licensor’s approval thereof, and any claim by a third party resulting form Reseller’s breach or alleged breach of any term or condition of this Agreement.

8. Reseller warrants that it shall use reasonable efforts to procure the greatest volume of license fees of the PROGRAMS and/or IMPROVEMENTS consistent with the high quality of Licensor’s PROGRAM(s) and to make and maintain adequate arrangements for their manufacture, distribution, advertising, and promotion.

9. Reseller warrants that such distribution and sale shall not be for publicity or promotional tie-in purposes, premium giveaways, or other similar methods of marketing or merchandising without Licensor’s prior written approval.

10. Reseller warrants that any IMPROVEMENT provided by Reseller does not constitute an infringement upon the copyright or trade secret of another. Reseller will hold Licensor harmless from any and all claims, damages, loss or liability (including Licensor’s reasonable attorney’s fees) arising directly or indirectly from any such infringement of a trade secret or copyright of a third party.

11. Reseller warrants that all INTELLECTUAL PROPERTY RIGHTS created or to be created for Reseller by any ENTITY (other than an employee) shall be in accordance with a written contract with such ENTITY requiring the conveyance by the ENTITY to Licensor of all right, title, and interest in and to INTELLECTUAL PROPERTY RIGHTS and that any INFORMATION created by the ENTITY or provided to the ENTITY shall be held by such ENTITY in confidence and that the ENTITY will not compete with Reseller to the extent that Reseller has such obligations of confidentiality and noncompetition under this Agreement to Licensor.

12. The warranties provided in this Article shall survive any termination of this Agreement.

ARTICLE XIII.

LITIGATION

1. (a) In the event of actual or threatened suit charging infringement by Reseller of copyrights or any other INTELLECTUAL PROPERTY RIGHT of others, due to use by Reseller of the rights license herein, Reseller shall promptly notify Licensor of such suit and Licensor shall have the right, but not the obligation, at its own expense, to assume the defense and settlement thereof.

(b). Licensor shall have the right to select counsel if it so desires to assume such defense; provided, however, that if Licensor is to assume the defense, it shall notify Reseller within _________ days of being notified by Reseller of the actual or threatened suit.

2. In the event that Reseller shall become aware of an infringement by third parties of anything licensed under this Agreement, it shall promptly notify Licensor of such infringement and shall do such acts and provide such information as in Licensor’s sole discretion would be necessary or desirable in relation thereto, subject to reimbursement by Licensor of Reseller’s reasonable expenses in connection therewith. Such acts and provision of information as are required herein by Licensor shall survive any termination of this Agreement for whatever reason.

ARTICLE XIV.

CONFIDENTIALITY
1. INFORMATION is the essence of the Agreement. Accordingly, Reseller, on behalf of itself and its EMPLOYEES, agrees that all of said INFORMATION shall be held in confidence by Reseller and that Reseller shall neither use same for itself nor disclose same to others, nor (directly or indirectly) assist others to use same for itself or others without the express and advance written permission of Licensor unless such information becomes generally publicly available through no act of Reseller during the term of this Agreement and thereafter.

2. This requirement of confidentiality extends to any and all INFORMATION previously acquired by Reseller from Licensor and shall survive the termination of this Agreement for any reason.

3. Reseller shall secure agreements from its EMPLOYEES to hold INFORMATION in confidence which is consistent with Reseller’s obligations under this Agreement. The terms and conditions of such agreement pertaining to confidentiality shall be approved by Licensor in writing and in advance.

ARTICLE XV.

NONCOMPETITION

1. Reseller shall refrain from making, using, or marketing, or setting up to make, use, or market, any computer program in competition with the PROGRAM(s), IMPROVEMENTS, and/or FINAL PRODUCTS and Reseller shall also refrain from, directly or indirectly, aiding others from making, using, or marketing, or setting up to make, use, or market any program in competition with the PROGRAM(s), IMPROVEMENTS, and/or FINAL PRODUCT(s) during the term of this Agreement and thereafter.

2. Reseller shall secure agreements from its EMPLOYEES that require the EMPLOYEES not to compete with the PROGRAM(s), IMPROVEMENTS, and/or FINAL PRODUCT(s) consistent with Reseller’s obligations under this Agreement, except that such agreement shall terminate with the termination of the EMPLOYEE’s employment. The terms and conditions of this agreement shall be approved by Reseller in writing and in advance.

ARTICLE XVI.

TERMINATION

1. If Reseller shall become insolvent or make an assignment for the benefit of creditors, or if a proceeding in involuntary or voluntary bankruptcy shall be instituted on, in behalf of, or against Reseller, and such proceedings shall not be dismissed on Reseller’s application within _________ days after the commencement of such proceedings, or if a receiver or trustee of Reseller’s property shall be appointed, Licensor may, at its option, by written notice to Reseller, terminate this Agreement forthwith, but such termination shall not prejudice any right Licensor has against Reseller, including the right to recover royalties or any other payments that may have become due. In case of any such termination all right, title, and interest in and to the licenses set forth in this Agreement shall then and forthwith terminate and any INTELLECTUAL PROPERTY RIGHTS in any PROGRAM, IMPROVEMENT, and/or FINAL PRODUCT and/or any IMPROVEMENT thereof shall vest or revest, as the case may be, in Licensor. Any sublicense agreement shall include this requirement, except that where the insolvency, assignment, proceeding, or appointment is that of any CUSTOMER-SUBLICENSEE, the rights sublicensed may, at Reseller’s option, vest or revest in Reseller or Licensor.

2. If Reseller is in breach of any term or condition of this Agreement, and shall fail to remedy such breach within _________ days after written notice thereof by Licensor, Licensor may, in its sole discretion, provide to Reseller written termination of this Agreement. This notice shall not, however, prejudice the right of Licensor to recover any royalties or other sums due at the time of such termination and shall not prejudice any cause of action or claim Licensor accrued or may accrue on account of any breach or default by Reseller.

3. On termination of this Agreement, however occurring, all accrued royalties on the PROGRAM which have been made, used, licensed, or otherwise disposed of by or on behalf of Reseller shall immediately become due and payable to Licensor, and, further, any PROGRAM in existence at the termination of this Agreement and upon which
royalty has not been so paid, that same will be treated as though it was coming within and subject to the NET LICENSING PRICE provisions, and the royalty thereon shall also be immediately due and payable to Licensor.

4. Any contract or other arrangement between Reseller and any CUSTOMER-SUBLICENSEE shall reflect all of the terms and conditions of this Agreement.

5. If Licensor shall become insolvent or make an assignment for the benefit of creditors, or if a proceeding in involuntary or voluntary bankruptcy shall be instituted on, in behalf of, or against Licensor, and such proceedings shall not be dismissed on Licensor’s application within _________ days after the commencement of such proceedings, or if a receiver or trustee of Licensor’s property shall be appointed, Reseller may, at its option, by written notice to Licensor, terminate this Agreement forthwith, but such termination shall not prejudice any right Reseller has against Licensor. In case of any such termination all right, title, and interest in and to the licenses set forth in this Agreement shall then and forthwith vest or revest, as the case may be, in Reseller.

6. With respect to all agreements between Reseller and CUSTOMER SUBLICENSEES upon termination of this Agreement for any reason, any and all rights and benefits to Reseller under any such agreements shall vest in Licensor. All use of any TRADEMARK by Reseller shall cease and Reseller shall return all copies of the PROGRAM(s) and IMPROVEMENTS to Licensor.

ARTICLE XVII.

NOTICES

1. Any notice or statement by either party shall be deemed to be sufficiently given when sent by prepaid, certified mail, return receipt requested, to the other party at its address set forth hereinabove. These addresses shall remain in effect unless another address is substituted by written notice.

ARTICLE XVIII.

JURISDICTION

1. This Agreement shall be deemed entered into in the State of _________ and shall be construed and governed solely by the laws of said State, and it is further agreed that the conflicts-of-law rules of said State or any other jurisdiction shall not be utilized to result in the application of the law of any state other than the State of _________.

2. The parties hereto shall restrict themselves exclusively to the jurisdiction of the courts within the State of _________ for any controversy between them and arising out of this Agreement.

ARTICLE XIX.

AMENDMENT OR MODIFICATION TO AGREEMENT

1. No amendment or modification of this Agreement shall be valid or binding unless the same shall be made in writing and signed on behalf of Reseller by its proper officer duly authorized to do so and by Licensor.

ARTICLE XX.

TITLES AND DEFINITIONS

1. The Article titles of this Agreement are inserted for convenience only and shall not be construed as limiting in any manner.
2. The definitions provided herein and set forth in Article I are referred to by fully capitalizing such definitions throughout this Agreement. The definition of such terms are understood to be applicable to both singular and plural uses of such defined terms.

ARTICLE XXI.

ASSIGNMENT

1. This Agreement and the rights granted hereunder to and the benefits and obligations of Reseller are personal to Reseller and may not be assigned or transferred without the consent of Licensor. The benefits of this Agreement shall inure to the successors and assigns of Licensor.

ARTICLE XXII.

ENFORCEMENT OF RIGHTS

1. The failure to enforce any of the terms and conditions of this Agreement by either of the parties hereto shall not be deemed a waiver of any other right or privilege under this Agreement or a waiver of the right to thereafter claim damages for any deficiencies resulting from any misrepresentation, breach of warranty, or nonfulfillment of any obligation of any other party hereto.

2. In order for there to be a waiver of any term or condition of this Agreement, such waiver must be in writing and signed by the party making such waiver.

ARTICLE XXIII.

AGENCY

1. The parties to this Agreement are not, and shall not hold themselves out to be, partners or joint venturers nor is either party authorized or empowered to act as the agent for the other.

ARTICLE XXIV.

PREAMBLE

1. The preamble to this Agreement is hereby incorporated and by this reference shall hereby become part of this Agreement as if set forth herein word for word.

IN WITNESS WHEREOF, each party has caused this Agreement to be executed by their duly authorized officers.

[Signatures]

Download Software Publishing and Distribution Agreement in Word Format

Sample Search Forms:

Software Development and Usage Agreement

forms — Tue, 16 Aug 2011 12:16:05 +0000

Software development and usage agreement.

This AGREEMENT is made and entered into as of _________[date], by and between XYZXYZ INCORPORATED (hereinafter, “Xyzxyz”), a _________[State] corporation, maintaining its principal place of business at _________[address], and _________ COMPUTER SERVICES, INC. (hereinafter, “_________”), a _________[State] corporation maintaining its principal place of business at [address].

1. TERM: This agreement shall be in effect for a period of 5 years from the date of its acceptance by _________. Thereafter, should either party hereto desire to terminate or modify any provision herein as of the termination date, said party shall notify the other of its desire for such termination or modification in writing at least 60 days prior to such termination date. Failing such notice, this Agreement shall automatically renew itself for one year terms and continue in full force and effect from term to term thereafter unless either party hereto shall notify the other of its desire for such changes not later than 60 days prior to the anniversary of any renewal date. Either party may terminate this agreement for cause at any time by giving 30 days written notice and opportunity to cure.

2. COMPUTER OPERATIONS: _________ will provide computer usage services to Xyzxyz. A fee for Services in the amount of $_________ will be paid to _________ each month. The computer will be available 7 days a week, 24 hours a day except time for scheduled backup. _________ will not be responsible to Xyzxyz for delays or failure in performance caused by events beyond _________’s control including but not limited to fire, strikes, floods, utility failure, war and other disasters. _________ agrees:

(a). To back up the Xyzxyz database and all programs and secure off site to prevent any loss of data due to any catastrophe.

(b). To maintain a security system within the database so that each user can access only those records in the common databases that pertain to that specific user’s business requirements and needs.

3. PROGRAMMING: _________ will provide programming services as needed to meet the requirements of Xyzxyz in accordance with the specifications and schedule set forth on Exhibit “A”. _________ will bill for these services monthly on a time and expenses basis as work is performed. _________’s total fee for developing the vision, dental and hearing claims, eligibility, and reporting systems and providing complete documentation for all software as mutually agreed, will not exceed $_____ without the written approval from Xyzxyz Board of Directors. _________ will be free to use all ideas, concepts, know-how and techniques related to data processing and computer programs in its own behalf during the course of this agreement, subject to the provisions of Sections 11 and 12 of this agreement.

4. IT IS EXPRESSLY AGREED AND UNDERSTOOD THAT: The fee payable to _________ hereunder includes and shall cover all of the services set forth in this agreement and there will be no additional charges whatsoever to Xyzxyz for changes to the case system required by programming errors. _________ agrees to provide reasonable documentation for its fees and expenses to Xyzxyz upon request.

5. WARRANTY: In the event of an error or omission by _________ in connection with the services to be performed hereunder by _________ which is the proximate cause of damages or loss to Xyzxyz, _________ will either (a) rerun the work correctly at no extra cost to Xyzxyz, or (b) credit Xyzxyz’ account for the improper work. This election shall be determined jointly by Xyzxyz and _________. _________ warrants that all software developed for Xyzxyz will be _________’s original work and will not incorporate any material created by or belonging to others.

6. MAINTENANCE: _________ agrees to pay for maintenance of all computer equipment, workstations, PC’s and printers located in _________’s office. Likewise, Xyzxyz agrees to pay for maintenance on all computer equipment, workstations, PC’s and printers located at Xyzxyz’ office.

7. COMPUTER SUPPLIES AND EQUIPMENT: _________ agrees to pay for all data processing equipment, workstations, PC’s, software products, etc. and any necessary computer supplies such as green bar stock paper,
computer tapes and printer ribbons used in _________’s operations. Likewise, Xyzxyz agrees to pay for all data processing equipment, workstations, PC’s, software products, etc. and any necessary computer supplies such as green bar stock paper, computer tapes and printer ribbons used in Xyzxyz’ operations.

8. OUT-OF-POCKET EXPENSES: Any out-of-pocket expenses such as long distance telephone calls, travel or any other out-of-pocket expenses made by _________ in conjunction with services provided to Xyzxyz shall be billed back to Xyzxyz each month.

9. INSURANCE: Xyzxyz will be responsible for maintaining all insurance on equipment located in its office. _________ will be responsible for maintaining all insurance for equipment located in its office.

10. WAIVER OF AGREEMENT: A term of condition of this Agreement can be waived as modified only by written consent by both parties.

11. CONFIDENTIALITY: _________ agrees that it will not disclose any proprietary information, knowledge or data of Xyzxyz obtained in connection with this Agreement except as authorized by Xyzxyz in writing.

12. OWNERSHIP AND LICENSE: All of the information, data and contents of data bases and reports developed and compiled by _________ for Xyzxyz pursuant to this agreement shall be the property of Xyzxyz, and shall be delivered to Xyzxyz promptly whenever requested by Xyzxyz and upon the termination or expiration of this agreement. The software, programs and related documentation developed by _________ for Xyzxyz pursuant to this agreement shall be owned by _________. _________ hereby grants to Xyzxyz and its successors and assigns, without further compensation, an irrevocable, perpetual license to use all such software, programs and related documentation in any manner and at any place and time. Copies of the software, programs and related documentation, including without limitation the source code, shall be delivered to Xyzxyz promptly whenever requested by Xyzxyz and upon the termination or expiration of this agreement. _________ further agrees that while this agreement is in effect, the license granted to Xyzxyz shall be exclusive, and _________ will not market, sell, license or provide any of the software, programs or documentation developed for Xyzxyz pursuant to this agreement to any other person or entity.

This Agreement will be governed by the laws of [State]:

_________ ACKNOWLEDGES THAT THIS AGREEMENT HAS BEEN READ AND UNDERSTOOD, AND AGREES TO BE BOUND BY ITS TERMS AND FURTHER AGREES THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN PARTIES, WHICH SUPERSEDES ALL PROPOSALS ORAL OR WRITTEN AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT OF THIS AGREEMENT.

XYZXYZ INC.

_________ COMPUTER SERVICES, INC.

By: /s/ _________

_________

Title: CFO

Title: CEO

Date: _________

Download Software Development and Usage Agreement in Word Format

Sample Search Forms:

Software Purchase Agreement

forms — Tue, 16 Aug 2011 12:10:54 +0000

Software purchase agreement.

This agreement, effective _________[date], between _________, a _________ corporation, having its principal office at _________ (“Inserv”), and _________, a _________ corporation, having its principal office at _________(“User”).

RECITALS

User has developed and owns the copyright and all other proprietary rights pertaining to and subsisting in certain computer programs and related documentation known as the “_________ System”; and

User desires to sell, transfer, convey, and deliver such programs and documentation, including all rights subsisting in them, to Inserv; and

Inserv desires to acquire such computer programs and documentation from User;

Therefore, in consideration of the premises and the obligations undertaken, the parties agree as follows:

Section 1.

Subject Programs

1.1. The term “Subject Programs” shall mean any and all versions or derivations of (1) the source code of computer programs and (2) related development and user documentation which together comprise the _________ computer system.

Section 2.

Sale to Inserv

2.1. User sells, grants, transfers, and conveys to Inserv sole and exclusive right, title, and interest in and to the Subject Programs, including all rights in copyright and trade secret interests subsisting in them as well as such proprietary know-how as may relate to them, and including but not limited to the full and complete right to print, publish, copy, distribute, transfer, display, and prepare derivative works based upon the Subject Programs and any derivative works of them anywhere throughout the world.

Section 3.

Delivery of Subject Programs by User

3.1. User shall within 10 days of execution of this Agreement deliver to Inserv (1) the complete current version of the Subject Programs in both human-readable and machine-readable format, free of copyright protection and formatted to list source code instructions, and (2) available manuscripts prepared by User documenting the use and operation of the Subject Programs.

Section 4.

Distribution of Subject Programs by Inserv

4.1. Inserv shall determine in its discretion how to market and distribute the Subject Programs, and whether to license or sell copies of the Subject Programs. Each copy licensed or sold shall be accompanied by a suitable End-User License Agreement restricting its use to only one computer at any given time and protecting the proprietary rights of Inserv in the Subject Programs.
Section 5.

Registration of Copyright

5.1. Inserv shall place appropriate copyright and other proprietary notices in the form prescribed by applicable law on packaging materials, and embedded in program code of the program packages. User shall, upon request of Inserv, execute and deliver to Inserv a suitable Certificate of Assignment of the rights and interests of User in the Subject Programs for registration or recordation in the United States Copyright Office.

Section 6.

Payment of Purchase Price

6.1. User acknowledges receipt of the sum of $1 furnished by Inserv as the mutually agreed upon purchase price as good and sufficient consideration of User entering into this Agreement and delivering the Subject Programs under Section 3, in addition to the additional consideration described below.

Section 7.

Additional Consideration

7.1. As additional consideration for the sale and transfer of the Subject Programs, Inserv and User mutually agree to void and terminate their previous “Agreement in Principle Between Inserv and User for Support of Point of Sale Systems” originally executed on _________[date].

7.2. In addition, Inserv and User mutually agree to terminate their previous “Agreement for Data Processing Services Between Inserv and User” originally executed on _________[date]. As a condition of the termination of that agreement, Section _________ of that agreement will control the process of termination. Inserv, in conjunction with the contract termination, agrees to sever all employees associated with the performance of the contract and provide a severance package to those employees who are not offered positions with User within 24 hours of their termination by Inserv. Inserv will provide under separate agreement with the individuals involved, an incentive to the current Director-MIS and Manager-Application Systems that they will receive lump sum compensation if they continue in their current position for a specified time period (approximately six months) after the transition to User or if after the transition to User they are terminated for reasons other than termination for cause.

7.3. Inserv will pay User a royalty of $_____ for each new sublicense and installation of the “Subject Programs” in the continental United States for and at a User Service Center.

7.4. Inserv will make available the services of _________ for a period of 180 days from the effective date of this agreement to assist in the transition of the data processing service efforts from Inserv to User. These services will be provided on a part-time basis for expense reimbursement only (travel, lodging and meals) up to a maximum of 160 man hours. These services will continue at a rate of $_____ per hour after the 160-hour limit has been reached up to a maximum of 100 additional hours. All services provided by _________ are based on h— continued employment by Inserv and availability with reasonable notice.

Section 8.

Warranties of User; Limitations on Warranties and Liabilities

8.1. User warrants to Inserv that it is the original creator and User of the Subject Programs and is the owner of them for purposes of the U.S. Copyright Act and applicable federal and state laws affecting proprietary rights, and that it has the authority to assign and transfer all right, title, and interest to them to Inserv in accordance with the provisions of this agreement.
8.2. User warrants that the Subject Programs in the form to be delivered to Inserv pursuant to Section 3.1 will not infringe any U.S. patent, copyright, or trade secret right of any third party.

8.3. User makes no warranty that all errors have been or can be eliminated from the Subject Programs and, except as set forth in Section 8.1, User shall not be responsible for losses, damages, costs or expenses of any kind resulting from the use or distribution of the Subject Programs by Inserv, including, without limitation, any liability for business expense, machine downtime, or damages caused Inserv or any third persons by any deficiency, defect, error or malfunction. Except as set forth in Section 9.1, User shall not be liable for any indirect, special, incidental, or consequential damages, relating to or arising out of the subject matter of this Agreement or actions taken under it. USER MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO THE SUBJECT PROGRAMS OR THE USE OF THEM, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

Section 9.

Indemnity Undertakings of the Parties

9.1. User shall indemnify and hold harmless Inserv from and against any and all claims, actions, demands, costs, losses, and liabilities arising out of or relating to infringement by the Subject Programs in the form delivered by User to Inserv under this Agreement upon the proprietary rights of any third parties.

9.2. Inserv shall indemnify and hold harmless User from and against any and all claims, actions, demands, costs, losses, and liabilities arising out of or relating to actions taken by Inserv pursuant to this Agreement.

9.3. These rights of indemnification shall be predicated upon the party seeking indemnification (1) giving the indemnifying party prompt written notice of any claim for which indemnity is sought; (2) allowing the indemnifying party complete control with respect to the defense or settlement of any such claim; and (3) cooperating fully with the indemnifying party in the defense or settlement at the expense of the indemnifying party.

Section 10.

Confidential Information

10.1. User shall keep confidential and not disclose or disseminate to any third parties any confidential proprietary information subsisting or embodied in the Subject Programs. User shall take all steps reasonably necessary for the protection of any such information that remains in the possession or control of User.

Section 11.

Miscellaneous

11.1. User shall have no authority to enter into agreements on behalf of Inserv or otherwise to bind or obligate Inserv in any manner.

11.2. ALL QUESTIONS CONCERNING THE VALIDITY, OPERATION INTERPRETATION, AND CONSTRUCTION OF THIS AGREEMENT WILL BE GOVERNED BY AND DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF _________.

11.3. If any part, term, or provision of this Agreement shall be held unenforceable or in conflict with any law of any governmental authority having jurisdiction over this Agreement, the validity of the remaining portions or provisions shall not be affected.

11.4. Each party represents that it has the full power and authority to undertake the obligations set forth in this Agreement and that it has not entered into any other agreements that would render it incapable of satisfactorily
performing its obligations under this Agreement or that would place it in a position in conflict with respect to its obligations under this Agreement.

11.5. The parties agree that this agreement is complete and exclusive state of agreement and supersedes all proposals and agreements, oral or written, relating to the subject matter of this agreement.

IN WITNESS, the parties have caused the Agreement to be duly executed by their authorized representatives effective as of the date set forth above.

(User)

By: _________

Name: _________

Title: _________

Date: _________

(Inserv)

By: _________

Name: _________

Title: _________

Date: _________

Download Software Purchase Agreement in Word Format

Sample Search Forms:

Web Wrap Agreement for Purchases

forms — Tue, 16 Aug 2011 12:04:33 +0000

Web wrap agreement for purchases.

WEB WRAP AGREEMENT

[for purchase of goods online through web site]

[VENDOR NAME]

[VENDOR ADDRESS]

ORDER FORM

Company Name: _________(“Buyer”)

Delivery Address: _________

In the event we have questions about your order, where can we reach you?

E-mail _________

Phone: _________

Subject to the terms and conditions stated below, Vendor agrees to sell, and Buyer agrees to purchase the following goods (“Goods”):

Item No.

Description

Price per unit

Quantity

Total

1. SALES

Due to government regulations and product availability, all Goods may not be available in every area.

2. PRODUCT DESCRIPTIONS; CATALOG INFORMATION

All information provided on this web site and in Vendor’s online catalog is subject to change without notice. While efforts have been made to make Vendor’s web site and online catalog helpful and accurate, due to the open nature of this web site and the potential for errors in the storage and transmission of digital information, Vendor does not warrant the accuracy or completeness of information obtain from Vendor’s web site or online catalog.

3. PRICES

The purchase price for the Goods is stated in Vendor’s current online catalog. In addition to the purchase price, Buyer shall pay shipping, insurance, and handling charges and any applicable sales, use, value added, property, excise, and other similar taxes.

4. INDICATE METHOD OF PAYMENT (to be completed by Buyer):

[ ] Please charge my credit card

_________ VISA _________ MasterCard _________ American Express

Account Number: _________

Name as it appears on account: _________

Expiration Date: _________

[ ] Please debit my e-cash account

_________ Account Number

_________ Name as it appears on account: _________

[ ] Please bill me at the address above.

Payment is due within _________ (_________) days of the date of Vendor’s invoice. Any past due payments will be subject to a monthly interest charge at the rate of one and one-half percent (1.5%) or the maximum rate permitted by law, whichever is less.

5. DELIVERY

Vendor will ship the Goods upon receipt of payment. Risk of loss will pass to Buyer upon shipment.

6. LIMITED WARRANTY; DISCLAIMER

Vendor warrants that for a period of _________ (_________) days from the date of delivery, the Goods will be free from defects in materials and workmanship under normal use. In the event of any material nonconformity, Buyer’s exclusive remedy and Vendor’s sole responsibility shall be to repair or replace the Goods or reimburse Buyer the purchase price for the nonconforming Goods, at Vendor’s option. Any claim based on the foregoing warranty must be submitted in writing to Vendor within _________ (_________) days after delivery. THE FOREGOING WARRANTY IS IN LIEU OF, AND VENDOR EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

7. LIMITATION OF LIABILITY

Vendor’s total liability for all claims arising out of or related to the manufacture, sale, delivery, repair, replacement, or use of any Goods shall not exceed the purchase price of such Goods that give rise to the claim. In no event will Vendor be liable for incidental, special, or consequential damages, even if it has previously been advised of the possibility of such damages.

8. GOVERNMENTAL AUTHORIZATIONS

Buyer will be responsible for timely obtaining all required authorizations necessary for the exportation or importation of the Goods into the country where delivery is to be made and for compliance with all laws and regulations of such country.

9. GENERAL

(a). Assignment. Neither party shall assign or subcontract its obligations under this Agreement, in whole or in part, or any interest therein, without the other party’s written consent.

(b). Force Majeure. Neither party shall be responsible for delays or failure of performance resulting from acts beyond the reasonable control of such party. Such acts shall include, but not be limited to, acts of God, strikes, walkouts, riots, acts of war, epidemics, failure of suppliers to perform, governmental regulations, power failure(s), earthquakes, or other disasters.

(c). Notices. All notices and demands of any kind or nature which either party to this Agreement may be required or may desire to serve upon the other in connection with this Agreement shall be in writing and may be served personally or by prepaid registered or certified United States mail or by nationally recognized express courier, in either case to the addresses set forth at the beginning of this Agreement. Either party may from time to time, by notice in writing served upon the other party as aforesaid, designate a different mailing address or a different person to which following such service all further notices or demands are thereafter to be addressed.
(d). Governing Law. This Agreement shall be construed in accordance with, and governed by, the laws of the State of _________, United States of America. The Uniform Commercial Code as adopted by the State of _________, and not the United Nations Convention on Contracts for the International Sale of Goods, shall apply.

(e). No Waiver. No term or provision hereof shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented.

(f). Entire Agreement. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter of this Agreement and supersedes all prior proposals, negotiations, and agreements. No provisions in either party’s purchase orders, or in any other business forms employed by either party will supersede the terms and conditions of this Agreement, and no supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by both parties to this Agreement.

BUYER HAS READ AND AGREES TO THE TERMS AND CONDITIONS OF THIS ORDER.

[ ] “AGREED”—SUBMIT ORDER

[ ] “NOT AGREED”—DO NOT SUBMIT

Download Web Wrap Agreement for Purchases in Word Format