NONEXCLUSIVE ORIGINAL EQUIPMENT MANUFACTURER (OEM)
SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT
Dated the __ of _____, 2010
by and between
BizDevDNA.com, a California Company, having its principal place of business at 123 main
Street, Redondo Beach, CA 90277, (hereinafter "BD2")
________________________________, a company organized under the laws of the State of ________, having its
principal place of business at ____________________________
_______________________________________________ (hereinafter “OEM “).
WHEREAS BD2 is the owner of certain computer programs and related documentation; and
WHEREAS BD2 desires to grant to OEM and OEM desires to obtain, a nonexclusive license to
use software and related documentation as specified in this Agreement solely in the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained
herein, the parties agree as follows:
1. GRANT OF LICENSES
Publishing, Marketing and Distribution
1.1 Subject to the terms and conditions of this Agreement, BD2 hereby grants to OEM, and
OEM hereby accepts from BD2, a nonexclusive, nontransferable license to publish the object
code version of BD2 software products listed on Exhibit A (the "Computer Programs"), and to
market and distribute such Computer Programs, and such end-user documentation which BD2
may include from time to time with such Computer Programs (the “Documentation”) (the
Computer Programs and the Documentation shall be collectively referred to herein as the
"Licensed Products"), for the sole purpose of bundling with OEM's products listed in Exhibit
A ("OEM's Products") and, only in the geographic territory set forth on Exhibit B (the
"Territory"'). In any case, the “shelf price” (the price ultimately paid by the end-user) must be
higher than for the stand alone software product sold by BD2 through its resellers. Such product
offer (bundle) shall be included in Exhibit A including anticipated shelf price.
1.2 Only one copy of the Licensed Products shall be included with each unit of OEM's
Products, and OEM agrees to ship at least the number of units of the Products set forth on
Exhibit C. OEM shall ship Licensed Products with every unit of OEM's Products in the
Territory. Publication shall consist of copying the Computer Programs from a master disk
containing a copy of the Computer Programs (the "Master Disk"); and packaging the
Documentation, (if any), and copy of the Computer Programs as a Licensed Product.
1.3 The design and reproduction quality of the Licensed Products, including packaging, shall
be subject to BD2's approval in its sole discretion. OEM shall provide BD2 from time to time
with samples of each portion of the Licensed Products, as they become available for review as
well as samples of the full Licensed Products. BD2 will provide written approval or proposed
change within 7 business days. If BD2 has not contacted OEM within this time period, OEM‟s
product and packaging will be deemed approved.
Subject to the terms and conditions of this Agreement, BD2 hereby grants to OEM a
nonexclusive, nontransferable license to (I) grant to end-users in the Territory a license in the
form of the License Agreement for each package of a Licensed Product bundled with OEM's
Products for which OEM has incurred the Royalties as provided below; and (ii) use the
Computer Programs internally for the sole use of providing support to end-users in the Territory.
3. LICENSE CONDITIONS
The grant of licenses herein is expressly conditioned on (i) OEM and its third party distribution
channels taking all reasonable steps to insure that each copy of the Licensed Products distributed
to an end-user will be in the original unopened package in form and substance approved by BD2;
and (ii) OEM and its third party distribution channels will accept returns of Licensed Products
from end-users who do not agree with the terms and conditions of the License Agreement or any
In consideration of the license granted hereby, OEM agrees to pay BD2 for each copy of the
Licensed Products distributed by OEM directly or indirectly, a royalty in the amount specified
for the applicable Licensed Products on Exhibit D (the "Royalties"). OEM shall pay BD2
nonrefundable advance payments of Royalties in the amounts and at the times specified on
Exhibit D, which advances shall be applied against the first Royalties becoming payable
thereafter. Royalties are payable on a monthly basis and are due 15 days after the end of each
calendar month and shall accompany the reports described in Section 4.3. below. Payments shall
be made in US dollars. OEM shall pay BD2 a finance charge at the rate of 15 percent per month
on all amounts which are past due, from the date such amounts were due through the date of the
actual payment (the “Interest”).
All payments by OEM shall be net of all taxes, customs, duties, tariffs, fees or any other charges.
OEM will maintain reports of the distribution of Licensed Products by OEM that specify
quantities (by order number and description) of Licensed Products distributed during each
calendar month, as well as a forecast of the Licensed Products to be distributed during the 90-day
period following each such report, and shall submit such reports to BD2 no later than 15 days
following the end of such month.
Upon BD2's request, OEM will promptly furnish summaries or explanations of Licensed
Products distribution reports and/or include with all Licensed Products distributed a user
registration card to be returned to BD2. With the first such report OEM shall also provide BD2
with a list of all registered users of OEM's Products. The list shall be updated as part of OEM's
monthly reporting. Such list shall include, but not be limited to each registered user's name,
address and telephone number. The list shall be kept confidential by BD2 and shall be used for
no purpose other than to make the direct mailings authorized by Section and 10.2 below.
OEM shall keep accurate records and books of account and logs concerning the distribution of
the Licensed Products adequate to determine the amount of Royalties owed to BD2, which shall
be preserved by OEM in a safe place for the term of this Agreement and a period of two years
following termination, cancellation or expiration of this Agreement, BD2 or its certified public
accountants shall have the right, at its expense, to audit OEM's records concerning the
reproduction and licensing of the Licensed Products. If an audit reveals that OEM has underpaid
the Royalties due BD2, OEM shall promptly pay BD2 the amount of the underpayment together
with the Interest. In addition if such underpayment exceeds three percent of the total amount
actually owed, OEM shall promptly reimburse BD2 for its costs and expenses in performing
such audit, plus interest at the rate of 1.5% per month.
5. MASTER DISK
5.1 BD2 shall deliver the Master Disk and a backup Master Disk to OEM at the address set
forth above within 10 business days following the execution of this Agreement and OEM's
payment of the Fixed Fee and any advances of Royalties then due. Within 15 days of receipt of a
Master Disk, OEM shall accept or reject such Master Disk subject to the provisions of Section
5.2 OEM may reject a Master Disk by returning it to BD2 and certifying to BD2 in writing that
(i) the Master Disk is not an accurate reproduction of the Computer Programs; (ii) OEM has
destroyed any and all copies or any portion of the Computer Programs and Documentation; and
(iii) OEM has not provided any copy to any third party.
If the Master Disk has been so rejected, BD2 shall replace the defective Master Disk.
Distribution of a Product to any third party or failure to reject the Master Disk within such 15-
day period shall be deemed an irrevocable acceptance of the Master Disk.
6. DISCLAIMER OF WARRANTIES
WITHOUT LIMITATION, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, BD2 AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY EXPRESSED OR
IMPLIED WARRANTIES AND CONDITIONS, INCLUDING WITHOUT LIMITATION
ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, AS WELL
AS ANY WARRANTIES THAT THE OPERATION OF THE MASTER DISK OR THE
PRODUCTS WILL BE INTERRUPTION OR ERROR FREE.
Except for, BD2's obligations pursuant to Section 7 below, BD2 shall have no obligations with
respect to defective Licensed Products or the Master Disk. In no event will any action against
BD2 for breach of warranty or for any Licensed Product defect be instituted more than one year
after discovery of the breach or defect. BD2 does not warrant that the Computer Program is free
from all bugs, errors and omissions.
7. EXCLUSIVE REMEDY
If OEM rejects the initial Master Disk pursuant to Section 5 and if BD2 is unable to repair or
replace the initial Master Disk as required pursuant to Section 5, OEM's exclusive remedy shall
be the return of the defective initial Master Disk and all backup initial Master Disks and the
refund to OEM of any prepaid Royalties. Such refund will be in full satisfaction of all OEM's
claims relating to such noncompliance.
OEM‟S EXCLUSIVE REMEDY AND BD2'S ENTIRE LIABILITY ARISING FROM OR IN
CONNECTION WITH THE LICENSED PRODUCTS, THE MASTER DISKS OR THIS
AGREEMENT FOR BREACH OF WARRANTY OR ARISING FROM OR IN CONNECTION
WITH ANY USE OR INABILITY TO USE LICENSED PRODUCTS OR THE MASTER
DISKS SHALL BE THE REPLACEMENT OF THE MASTER DISKS AND IF NOT SO
REPLACED THEN THE OR REFUND OF THE FIXED FEE AND ANY PREPAID
ROYALTY PAID TO BD2. In no event will any action against BD2 be instituted more than two
years after the cause of action arose.
8. LIMITATIONS OF LIABILITY AND EXCLUSION OF DAMAGE
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, BD2 OR
ANY OF ITS OFFICERS, DIRECTORS, AFFILIATES, SUPPLIERS AND AGENTS SHALL
NOT, UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY LOSS OF USE,
INTERUPTION OF BUSINESS OR DAMAGE TO REVENUES, PROFITS OR GOODWILL
OR OTHER SPECIAL, INCIDENTAL, INDIRECT AND CONSEQUENTIAL OR
EXEMPLARY DAMAGES OF ANY KIND, EVEN IF BD2 HAS BEEN APPRISED OF THE
LIKELIHOOD OF SUCH DAMAGES OCCURRING, EXCEPT IN RESPECT OF LIABILITY
WHICH IS BY LAW INCAPABLE OF EXCLUSION, IN NO EVENT SHALL BD2‟S
LIABILITY (WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT OR
OTHERWISE) TO OEM ARISING OUT OF OR RELATING TO THE ORDER OR
DELIVERY OF ANY UNIT OF THE LICENSED PRODUCT, EXCEED THE PER UNIT FEE
ACTUALLY PAID BY OEM TO BD2 FOR SUCH UNIT. OEM acknowledges and agrees that
the Royalties provided to BD2 hereunder are premised in substantial part on the provisions of
Sections 6, 7 and 8 relating to disclaimers of warranties, limitations of remedies, limitations of
liability and exclusions of damages and that such disclaimers, limitations, and exclusions are
unrelated, independent allocations of risks. WITHOUT LIMITING THE FOREGOING, BD2
AND OEM AGREE THAT IF ANY REMEDY HEREUNDER IS DETERMINED TO HAVE
FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND
EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT.
9. USE OF TRADEMARKS
To the extent that it does not exist in the Licensed Products, OEM shall place the trademarks and
trade names indicated by BD2 on all Licensed Products. In addition BD2 grants OEM the non-
exclusive license to use and publish in the Territory the trade name or trademark indicated by
BD2 which are related to the Licensed Products (the “Marks”), provided all marks are so
indicated by appropriate symbol or designation in advertising and other marketing activities
solely to identify the licensed Products.
Such activities may take the form of magazine advertising, direct mail promotions and trade
shows displays and such other activities as BD2 may approve. Upon notice by BD2, such use
shall thereafter be subject to BD2's prior review and approval of the anticipated use.
In addition upon notice from BD2 of its reasonable objection to any improper or incorrect use of
such Marks, OEM shall immediately correct or change such usage.
OEM shall not obtain or attempt to obtain by any manner whatsoever any right, title or interest in
or related to any of the Marks or any mark or name confusingly similar thereto.
OEM shall, and hereby does, irrevocably assign to BD2 any and all proprietary interests it may
obtain under the laws of any jurisdiction in the Territory in the trade names and/or trademarks
and/or Licensed Products or words associated with BD2, or the Licensed Products.
OEM grants BD2 the non-exclusive license to use and publish any trade name or trademark used
by OEM, provided all marks are so indicated by appropriate symbol or designation in advertising
and other marketing activities solely to identify OEM's Products or this OEM relationship. Such
activities may take the form of magazine advertising direct mail promotions, and trade shows
displays and such other activities as OEM may approve. Upon notice by OEM, such use shall
thereafter be subject to OEM's prior review and approval of the anticipated use.
In addition upon notice from BD2 of its reasonable objection to any improper or incorrect use of
such marks, BD2 shall immediately correct or change such usage.
10. OTHER OBLIGATIONS;
10.1 Customer Support
BD2 shall use its reasonable commercial efforts to provide technical support to end users of the
licensed copies to the same level it supports end users of stand-alone copies purchased directly
from BD2 or through BD2‟s regular retail channels.
10.2 Promotion and Sales Activities
Public relations and press releases regarding this Agreement shall be the sole and exclusive
responsibility of BD2. OEM shall make no public statements regarding this Agreement unless
approved in advance and in writing by BD2. All cooperative advertising activities shall be
coordinated and approved by BD2 in writing. OEM may actively promote the Licensed Products
as follows: OEM may (i) make a press release announcing OEM's Products, highlighting the
inclusion of the Licensed Products; (ii) provide for joint participation at trade shows selected by
BD2; (iii) include the name of BD2 and the Licensed Products in all advertising for OEM's
Products containing the Licensed Products; and (iv) in-pack cross-sell materials from BD2 in
each of OEM's Products that contains the Licensed Products. In any advertising for OEM's
Products, OEM shall, whenever commercially feasible, include the name of BD2 and the
Licensed Products, as well as a photograph or graphic representation of the packaging for the
OEM shall allow BD2, at BD2's own expense, to periodically mail directly to registered users of
OEM shall provide BD2 at least 3 units of each item of OEM‟s Products with which the
Licensed Products are bundled free of charge for use by BD2 in providing technical support.
10.3 Governmental Approvals Export Limitations
OEM shall at all times and at its own expense strictly comply with all applicable laws, rules,
regulations and governmental orders, now or hereafter in effect, relating to its performance of
this Agreement. [Without limiting the generality of the foregoing obligation, OEM specifically
acknowledges that each of the Licensed Products and certain information relating to the
Licensed Products (the "Technical Data") supplied to OEM in accordance with the terms of this
Agreement are subject to United States controls, pursuant to Export Administration Regulations,
15 C.F.R. Parts 768-799. OEM shall comply strictly with all requirements of the Export
Administration Regulations with respect to each Licensed Product and all such Technical Data.
Without limiting the generality of the foregoing obligation, OEM hereby expressly agrees that,
without the prior written authorization of BD2 and the United States Government, OEM will not
and will cause its representatives to agree not to, export, reexport, divert or transfer any
Technical Data, or any direct product thereof, including without limitation, any Licensed
Product, to any destination, company or person prohibited by the Export Administration