Docstoc
Software Design License and Distribution Agreement
Document Sample
Software Design License and Distribution Agreement Powered By Docstoc
					                 Software Design License and Distribution Agreement

This Software Design License and Distribution Agreement (this Agreement) made this
the (date), the Effective Date, by and between (Name of Licensor), a corporation
organized and existing under the laws of the state of (name of state), with its principal
office located at (street address, city, state, zip code), referred to herein as Licensor,
and (Name of Licensee), a corporation organized and existing under the laws of the
state of (name of state), with its principal office located at (street address, city, state, zip
code), referred to herein as Licensee.

Whereas, Licensor and Licensee desire to enter into an independent software licensor
relationship whereby Licensee shall be authorized to develop and distribute certain
software applications that incorporate Licensor's specified software products;

Now, therefore, for and in consideration of the mutual covenants contained in this
Agreement, and other good and valuable consideration, the parties agree as follows:
I.     Definitions.
       A.     Licensor’s Trademark means the authorized licensor’s name, logo,
       and/or certain other trademarks, trade names, and service marks specified in
       Exhibit A and provided by Licensor for only those limited purposes explicitly
       provided in this Agreement.

       B.    Business Plan means the business plan submitted by Licensee to
       Licensor, attached hereto as Exhibit B, which serves as the basis for Licensor's
       approval of Licensee's participation in this ISV Build program.

       C.     Distributors means dealers, distributors, resellers, original equipment
       manufacturers, value added resellers, software licensors, and similar entities who
       obtain the Software Application from Licensee, solely for redistribution to an End-
       User.

       D.     Documentation means the Licensor supplied copyrighted information and
       reference material relating to the operation and functionality of the Licensed
       Software, including user manuals, if any.

       E.    End-User(s) means customer(s) of Distributors or Licensee acquiring the
       Software Application for the sole purpose of using same for internal, in-house
       purposes and not for redistribution, sublicensing, or resale in any form.

       F.      End-User License means the then-current end-user license agreement
       shipped with, and/or incorporated in, each Licensed Software product which sets
       forth the terms and conditions under which a licensee may use such Licensed
       Software.

       G.    Enhancement means a modification or revision to the Software
       Application expanding its functionality or improving its performance.
H.    License Fee means the monetary amount in the currency specified in
Exhibit C to be paid by Licensee to Licensor as set forth in this Agreement.

I.      Licensed Software means the Licensor computer software application(s)
and component(s) in machine-readable, object code form identified in Exhibit D
of this Agreement, and any subsequent version(s) of said software which
Licensor, at its sole discretion, may make available to Licensee by written notice
pursuant to this Agreement; however, this definition does not include the Source
Code.

J.    Marketing Materials means the marketing collateral and other advertising
materials that Licensor may supply Licensee from time to time during the Term
and which use are governed by the terms of the Marketing Materials Program
attached hereto as Exhibit E.

K.     Net Licensing Proceeds or NLP shall mean the actual billings of
Licensee from all sales, licensing or other revenue-generating distribution of the
Software Application: (i) exclusive of any separately itemized and documented
taxes, interest, or finance charges, service fees and insurance or transportation
costs actually paid by Distributors or End-User(s), (ii) less any documented
credits or refunds for returns, and (iii) less any documented credits, rebates,
discounts or promotional allowances made by Licensee to its Distributors or End-
User(s) directly related to the Software Application.

L.     Seat means (i) one computer for non-networked single user
environments, or (ii) named user, one permitted or possible concurrent user for
networked or multi-user terminal based environments.

M.     Software Application means the Licensee software product described in
Exhibit D that results from Licensee's integration of all or part of the Licensed
Software with Licensee's own software application(s) and/or component(s). The
Software Application shall include all modifications, improvements, and
Enhancements thereto made by or for Licensee during the term hereof. It is
recognized by the parties that the Software Application may incorporate elements
of the Licensed Software that is necessary to accomplish the requirements of this
Agreement; however, the definition of the Software Application shall not include
any Licensed Software provided to Licensee by Licensor which is not
incorporated into the coding of the Software Application.

N.    Source Code means a human readable form of computer program
showing the computer language instructions comprising the program, from which
Object Code can be produced, in which the program logic may be deduced by a
human being, and from which a printed listing can be made by processing it with
a computer.

O.    Object Code means a form of computer program resulting from the
      compilation or other processing of Source Code by a computer into machine
      language or intermediate code, and thus is a form that would not be convenient
      to human understanding of the program logic, but which is appropriate for the
      construction and linking of binary executable modules, as well as for the
      execution by a computer.

      P.      Territory means the geographic territory in which the Software Application
      is to be distributed, as set forth in Exhibit F.

      Q.    Any references in this Agreement to the sale, selling, or purchase of the
      Licensed Software shall mean the sale or purchase of a license to use such
      Licensed Software or copies thereof.

II.   Grant of License.
      A.     Subject to Licensee's compliance with the terms and conditions of this
      Agreement and the End-User License, Licensor grants to Licensee a
      nonexclusive, nontransferable license to use, reproduce, and distribute (directly
      and indirectly through Distributors) as a perpetual license, the Licensed Software
      solely as an embedded or integrated component of the Software Application to
      End-User(s) only within the Territory.

      B.     Licensee shall be responsible for the supervision, management, control,
      and use of the Licensed Software in accordance with this Agreement and the
      End-User License. Licensee may make up to twenty (20) copies of the Licensed
      Software and Documentation for use solely for development of the Software
      Application only at the Development Site(s) set forth in Exhibit D. Licensee and
      End-User(s) shall not (a) modify, reverse engineer, reverse compile, uncompile,
      decompile or disassemble the Licensed Software, including but not limited to, the
      Source Code, the DLL, EXE, COM and/or other binary code, (b) make derivative
      works of the executable portions of the Licensed Software or (c) attempt to
      discover any Licensor proprietary information or trade secret from the Licensed
      Software. Licensee may, however, link its software to the Licensed Software and
      revise the user interface of the Licensed Software. Licensee shall not make any
      revisions, modifications, and/or additions to the Documentation in order to create
      any user manual or other documentation to support the operation of the Software
      Application. Notwithstanding the foregoing, Licensee will not copy, or assist
      others in copying, the Licensed Software or Documentation except in object code
      format: (i) as necessary to read the Licensed Software from the media into the
      memory of a computer solely for the purpose of executing it for a Licensed
      Software Seat; or (ii) to create a single backup copy. All copies of the Licensed
      Software shall contain the same proprietary notices which appear on and in the
      Licensed Software and Licensee shall maintain and not alter or remove any
      copyright, trademark, and other proprietary notices which appear on or are
      contained in the Licensed Software.
       C.       Licensee may copy, license, and market the Software Application;
       provided that (i) programmability of the Software Application by End-User(s) is
       limited solely to that which can be made available through a Licensee
       developed/supplied library; (ii) programmability of the Software Application by
       End-User(s) is only allowed by and through externally supplied client languages
       (iii) the Licensed Software is used solely by Licensee for development purposes
       to create Licensee's Software Application; (iv) the Licensee, or any Distributors,
       sublicenses, markets and distributes the Software Application only in the
       Territory and Market as set forth in this Agreement; and, (v) the Licensee
       sublicenses the Software Application under the terms of Licensee's standard
       license agreement which contains terms substantially similar to the minimum
       terms and conditions described in Exhibit D pursuant to which End-User(s) are
       granted a license to use the Licensed Software.

       D.      No less than thirty (30) days prior to the anticipated date of first customer
       shipment of the Software Application, Licensee shall deliver an archive copy, in a
       format acceptable to Licensor, of the Software Application to Licensor for its
       review to assist Licensor's monitoring of Licensee's compliance with this
       Agreement. In the event that the Software Application is not in conformance with
       the requirements of this Agreement, Licensor shall notify Licensee of the areas of
       non-conformance within fifteen (15) days of receipt of the Licensed Software.
       Licensor reserves the right to withhold approval to distribute the Software
       Application until such time as the Software Application complies with the
       requirements of this Agreement and/or terminate this Agreement. Licensor
       further reserves the right to terminate this Agreement at any time the Licensee is
       not in compliance with this Section II (License Grant). Notwithstanding the
       foregoing, upon receipt of written notification of non-compliance as set forth
       above, Licensee shall have thirty (30) days to correct such non-compliance.
       Licensee will deliver the updated version of the Software Application to Licensor
       for review. The parties acknowledge that Licensor's approval of the Licensed
       Software shall not constitute a warranty or representation as to the reliability or
       quality of the Software Application, or a waiver with respect to Licensor's rights
       pursuant to this Agreement.

III.   Ownership.
       A.   Except as expressly licensed to Licensee in Section II above, Licensee
       acknowledges and agrees that:

              1.     Title to and all rights of ownership in the Licensed Programs, and
              all copies of all or any part of them, are and remain with Licensor;

              2.     The Licensed Programs contain and are comprised of Licensor's
              trade secrets and other proprietary, confidential information; and

              3.     Licensee will not sell, lease, lend, transfer, assign, hypothecate, or
             otherwise distribute the Licensed Programs except as expressly
             authorized in this Agreement.

      B.     Licensor retains all right, title, and interest in and to Licensed Software,
      including the Source Code, Documentation, and any other Licensor proprietary
      materials in Licensee's possession as a result of this Agreement (collectively the
      Materials). Licensee acknowledges and agrees that Licensor holds the copyright
      to the Materials and, except as expressly provided herein, Licensee is not
      granted any other right or license to patents, copyrights, trade secrets, or
      trademarks with respect to the Materials. Moreover, Licensor reserves all rights
      not expressly granted in this Agreement. Licensee shall take all reasonable
      measures to protect Licensor's proprietary rights in the Materials and shall not
      copy, use or distribute the Materials, or any derivative thereof, in any manner or
      for any purpose, except as expressly authorized in this Agreement. Licensee
      shall notify Licensor promptly in writing upon its discovery of any unauthorized
      use of the Materials or infringement of Licensor's patent, copyright, trade secret,
      trademark, or other intellectual property rights. Licensee shall not distribute any
      Materials to any person or entity unless necessary for Licensee to fulfill its
      obligations under this Agreement. Further, Licensee shall not distribute any
      Materials to any person or entity if Licensee is aware that such person or entity
      may be involved in potential unauthorized use of the Materials or other
      infringement of Licensor's proprietary rights.

IV.   Payment.
      A.     Licensee shall pay to Licensor the fees in the amounts set forth in Exhibit
      C of this Agreement for the Software License version set forth in Exhibit D.
      Licensee may license subsequent versions of the Licensed Software made
      available for general release during the Term, upon payment of the then-current
      license fees, if any, and at the then-current royalty rates. In addition, Licensee
      shall pay to Licensor a royalty as set forth in Exhibit C, calculated as a
      percentage of Net Licensing Proceeds and in accordance with the methods
      specified below and in this Agreement. All fees and royalties are non-refundable.
      Unless otherwise provided, all invoices are due and payable in full within sixty
      (60) days of the date of invoice. Additionally, Licensor may terminate this
      Agreement for failure to pay any undisputed amounts.

      B.     Royalties will be paid on all licensing or distribution of the Software
      Application subject to the conditions set forth herein. Royalties shall not be paid
      on copies of the Software Application provided to existing End-User(s) without a
      fee or charge, in order to correct a defect that prevents the Software Application
      from executing under normal operating conditions in accordance with the
      technical and functional specification as described in the original Software
      Application documentation. There will also be no royalties paid on, not for resale
      copies provided to Distributors, or copies used exclusively by Licensee for non-
      revenue purposes such as backup, testing, development, demonstration, or
      training purposes, up to a maximum of 100 copies. Notwithstanding the
foregoing, Royalties shall accrue the first time the Licensed Software is delivered
to an End-User within the Software Application.

C.     Licensee shall submit reports to Licensor, commencing with the first full
calendar month following the Effective Date (Royalty Reports). The Royalty
Reports shall include a detailed statement of the type and quantities of Software
Applications distributed by Licensee during the previous calendar quarter broken
out by geographical location. Unless otherwise provided in writing, Royalty
Reports shall be returned to Licensor within thirty (30) days after the end of each
calendar quarter. Unless otherwise provided in writing, Royalty Reports shall be
due every calendar quarter even if no royalties have accrued or are payable for
the calendar quarter. A purchase order, if royalty payments are due, shall
accompany the Royalty Report.

D.    In any action brought by Licensor to collect monies due under this
Agreement in which Licensor is the prevailing party, Licensor shall be entitled to
recover all costs and attorneys' fees incurred in maintaining such action.

E.     Licensee shall maintain records for Licensor's review relating to the
Software Applications that will allow Licensor to ascertain the types and
quantities of all copies made of the Software Applications, whether retained by
Licensee, or distributed to Distributors or End-User(s). In addition to Royalty
Reports, Licensee shall provide annually to Licensor, within ninety (90) days after
the end of Licensor's fiscal year, a forecast of Software Applications projected to
be licensed during the upcoming fiscal year and certification of the quantities of
the Software Applications shipped for the fiscal year then ended. Licensor shall
be entitled, at any time during the term of this Agreement, to audit the books and
records of Licensee for purposes of compliance with the terms of this Agreement
and verifying such Royalty Reports. Any such audit shall be conducted by
Licensor or its representatives during normal business hours with at least seven
(7) days written notice to Licensee, and Licensee shall cooperate fully with
Licensor or its representatives in any such audit. In the event such inspection or
audit discloses any underpayment, Licensee shall promptly pay Licensor such
undisputed amounts.

F.     Except for royalty withholding and income taxes based solely upon the net
income of Licensor, all taxes, assessments, levies, duties, and charges of any
kind, imposed by federal, state, local or other governmental agencies with
respect to this Agreement, whether measured by gross receipts applicable to this
transaction or otherwise, shall be paid by, and shall be the sole responsibility of
Licensee, including but not limited to, any sales, use, or value-added tax, and
any import or export taxes or duties. Notwithstanding the foregoing, Licensee
shall deduct from the royalties and pay on behalf of Licensor to the relevant
authorities, such withholding taxes as may be due by Licensor as required by
applicable laws. Licensee shall provide Licensor satisfactory proof of withholding
      tax payments within 15 working days of the end of each fiscal year during which
      any such payments accrue or are made.

      G.      Credit Establishment. Licensee must continuously maintain sufficient
      credit standing to meet Licensor's requirements. Licensee shall provide Licensor
      with all reasonable financial information, including but not limited to financial
      statements, letter(s) of credit, credit reports, federal tax return(s) and any other
      documents reasonably requested by Licensor to allow Licensor to establish credit
      for Licensee. ISV may not purchase direct from Licensor pursuant to this
      Agreement until a credit account has been established.

      H.    Licensor Account Balance. In the event Licensee has a balance on an
      Licensor account, Licensee must be current on payments, and remain current on
      payments against any such balance.

V.    Support.
      A.     Licensee shall be solely responsible for providing, at its sole expense, any
      and all support relating to the Software Application, including Distributor and End-
      User support. This Agreement does not include any support from Licensor to
      Licensee, or any third party.
      B.     Licensee shall promptly notify Licensor of bugs or errors in the Licensed
      Software or Documentation. Licensor shall not be obligated to correct any such
      errors discovered by Licensee or reported to Licensee by End-User(s).

VI.   Marketing and Trademarks.
      A.     Publicity. Neither party may make any public statement, press release, or
      other announcement relating to the terms of or existence of this Agreement
      without the prior written approval of the other party, except as required by law.
      Notwithstanding the foregoing, Licensee hereby grants to Licensor the right, but
      not the obligation, to issue an initial press release, the timing and wording of
      which will be subject to Licensee's approval, regarding the relationship between
      Licensor and Licensee. Moreover, Licensee agrees that Licensor may, but has
      no obligation to; make descriptive references to Licensee's name and the
      Software Application to state in its print media and/or on its web site that
      Licensee is a licensee of the Licensed Software.

      B.    Marketing Materials. Licensee may distribute Marketing Materials in
      accordance with the terms and conditions described in the attached Exhibit E
      Marketing Materials Program.

      C.      Trademarks and Logos. Licensor hereby grants Licensee the limited
      right to use the Licensor Trademarks and logos set forth below in any literature,
      promotion or advertising relating to the Software Application. Licensee's use of
      the Licensor Trademarks in any literature, promotion, or advertising shall be in
      accordance with Licensor's guidelines for such usage as set forth and updated
      from time to time in the Legal Notices and Trademarks page of Licensor.com.
       Licensee shall not contest, oppose, or challenge Licensor's ownership of the
       Licensor Trademarks nor misappropriate the same for its own use or any use
       other than that set forth in this Section. All representations of the Licensor
       Trademarks that Licensee intends to use shall be exact copies of those provided
       by Licensor and Licensor may revoke License's right to use such logo if it does
       not comply with such guidelines. If any of the Licensor Trademarks are to be
       used in conjunction with another trademark on or in relation to the Software
       Application, then the Licensor Trademarks shall be presented equally legibly and
       equally prominently, but nevertheless separated from the other so that each
       appears to be a trademark in its own right, distinct from the other mark. All use of
       the Licensor Trademarks shall inure to the sole benefit of Licensor. Effective
       upon the termination or expiration of this Agreement, Licensee shall cease all
       usage of the Licensor Trademarks.

              1.     Licensee shall employ the logo http.www.xxxxx.com in the splash
              screens of the Software Applications, and the documentation, packaging,
              advertising, and or promotional materials for the Software Applications
              subject to the requirements of this Section VI.

              2.     Licensee shall employ the Licensor logo in the installation and start
              up splash screens of the Software Applications, and the documentation,
              packaging, advertising, and or promotional materials for the Software
              Applications subject to the requirements of this Section VI.

       D.      Licensor Developer Support. Licensee shall register with Licensor to
       participate in the Licensor Developer Network (“VDN”) Program at the
       professional service level. Licensee shall renew the VDN program on a yearly
       basis during the term of the Agreement at the then current fees

       E.     Proprietary Notice. Licensee will place any required third party copyright
       notices in the copyright area of (i) the on-line documentation regarding the
       Software Application, (ii) the End-User License and/or terms of use for the
       Software Application, (iii) the ‘About Box’ or similar notice page of the Software
       Application and (iv) any other document related to Software Application that
       contains copyright information.

VII.   Confidentiality.
       A.    Confidential Information. As used in this Agreement, confidential
       information shall mean any information:

              1.     Designated as confidential orally or in writing by either party hereto,

              2.     Related to the Licensed Software or Documentation,

              3.     Related to a Parties business or operations, or
               4.     Other information received by a Party by virtue of that Party's
               relationship with the other Party including, but not limited to, customer
               information, product plans, product designs, product costs, product prices,
               p
				
DOCUMENT INFO
Description: Computer software is a collection of computer programs and related data that provides the instructions for telling a computer what to do and how to do it. Software refers to one or more computer programs and data held in the storage of the computer for some reasons. In other words, software is a set of programs, procedures, algorithms and its documentation concerned with the operation of a data processing system. The Computer Software Copyright Act of 1980 extended Copyright Act protection to computer pro�grams. A computer program is a set of statements or instructions to be used directly or in�di�rectly in a computer in order to bring about a certain result. A software license is a contract between a copyright holder and the licensee. In order to use the license as stated, the prospective licensee must follow the terms specified in the license. Otherwise, the copyright holder can seek legal damages from the licensee. A company can choose between hiring its own sales people to distribute its products or it can use distributors to provide the same function. Most small businesses use distributors because it is less expensive, facilitates cash flow and because distributors have more knowledge and experience in the market area. The distribution agreement is the contract between a company in need of having its products distributed and the distributor that specializes in providing that function
PARTNER William Glover
I received my B.B.A. from the University of Mississippi in 1973 and my J.D. from the University of Mississippi School of Law in 1976. I joined the firm of Wells Marble & Hurst in May 1976 as an Associate and became a Partner in 1979. While at Wells, I supervised all major real estate commercial loan transactions as well as major employment law cases. My practice also involved estate administration and general commercial law. I joined the faculty of Belhaven College, in Jackson, MS, in 1996 as Assistant Professor of Business Administration and College Attorney. While at Belhaven I taught Business Law and Business Ethics in the BBA and MBA programs; Judicial Process and Constitutional Law History for Political Science Department); and Sports Law for the Department of Sports Administration. I am now on the staff of US Legal Forms, Inc., and drafts forms, legal digests, and legal summaries. I am a LTC and was Staff Judge Advocate for the Mississippi State Guard from 2004-2008. I now serve as the Commanding Officer of the 220th MP BN at Camp McCain near Grenada, MS. I served on active duty during Hurricanes Dennis (July, 2005), Katrina (August, 2005) and Gustav in 2008. I played football at the University of Mississippi in 1969-1971 under Coach John Vaught. I am the author of the Sports Law Book (For Coaches and Administrators) and the Sports Law Handbook for Coaches and Administrators (with Legal Forms),