USA Software License and Development Agreement

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USA Software License and Development Agreement Powered By Docstoc
					                     SOFTWARE LICENSE AND DEVELOPMENT AGREEMENT

THIS AGREEMENT made effective as of the ____ day of ___________, _____. (the "Agreement")

                                               BETWEEN:

                            _______________________ (insert name of licensor)
                           _________________________ (insert complete address)
                                           (the "Licensor")

                                                 -AND-

                            _______________________ (insert name of licensee)
                           _________________________ (insert complete address)
                                           (the "Licensee")

In consideration of the mutual agreements hereinafter set forth, the parties represent, warrant and agree
as follows:

1.      System Development Services and System License
a.      Development Services. Licensor shall develop for Licensee a software system (the “System”)
        described in the Functional Specifications set forth in Exhibit "A" attached hereto and in the
        Technical Specifications set forth in Exhibit "B" attached hereto. The System shall include (i) the
        “Central Office Module,” (ii) the “Branch Office Module,” and (iii) the “Client Site Workstation
        Module.”

b.      License. Licensor grants to Licensee and its Affiliates a nontransferable, nonexclusive, perpetual
        license to:

        i.      the Central Office Module for use in production on one or more CPUs as long as such use
                and CPUs are limited to a single location anywhere in the United States and, for back-up
                purposes only, on one or more CPUs located anywhere in the United States (insert
                additional countries if applicable); and

        ii.     the Branch Office Module for use in production on one or more CPUs located in any
                offices of Licensee or its Affiliates in the United States (insert additional countries if
                applicable). Licensor also grants to Licensee and its Affiliates a nontransferable,
                nonexclusive, perpetual license to sublicense an unlimited number of the Client Site
                Workstation Modules to current and future customers of Licensee and its Affiliates (the
                “Clients”) in accordance with the terms of this Agreement.

c.      Affiliates. Any Affiliate of Licensee may license the System or any module or part thereof by
        executing a Letter Agreement, in the form of Exhibit "C" attached hereto, which binds the
        Affiliate to the terms and conditions of this Agreement. Licensor shall not charge such Affiliate
        any additional fees in connection with such license. For purposes of this Agreement, an
        “Affiliate” means any enterprise in which Licensee directly or indirectly owns at least __________
        (insert number in words) (____ (insert number) %) of the ownership interest in such enterprise.

d.      Ownership. Except as otherwise provided herein, Licensor shall retain all right, title and interest
        (including copyright, patent, trade secret and other proprietary rights) in the System and any
        modifications and any enhancements thereto, whether or not paid for wholly or in part by
        Licensee, whether or not developed in conjunction with Licensee, and whether or not developed
                                                    -2-


        by Licensor, Licensee, Licensee’s Affiliates, or any contractor, subcontractor or agent for Licensor
        or Licensee. The name of the System is the property of and proprietary to Licensee and Licensor
        shall not permit any other party to use such name for any purpose and shall not use such name
        for any purpose other than to identify Licensor’s System.

2.      Delivery Schedule
Licensor shall deliver to Licensee at locations designated by Licensee modules of the System that are
ready for immediate acceptance testing pursuant to Section 3 hereof in accordance with the following
schedule:

        Module                                    Date

        Central Office Module                     _______________

        Branch Office Module                      _______________

        Client Site Workstation Module _______________

Licensor agrees that time is of the essence in meeting the above delivery dates.

3.      Acceptance Testing
a.      Initial Testing. Upon delivery and receipt of each of the System modules listed in Section 2 hereof,
        Licensee shall have one hundred fifty (150) calendar days to perform such tests which reasonably
        demonstrate to Licensee’s satisfaction that each such module operates substantially in accordance
        with the specifications set forth in Exhibits "A" and "B" attached hereof (the “Acceptance Tests”).
        Licensee shall give Licensor written notice that a module has passed the applicable Acceptance
        Tests within five (5) business days of any such satisfactory completion.

b.      Non-Performing Module. If a module fails the Acceptance Test (a “Non-Performing Module”),
        Licensee shall give written notice to Licensor of such failure, describing with reasonable
        specificity the nature of such failure within five (5) business days of any such unsatisfactory test
        result. Licensor shall have thirty (30) calendar days thereafter to discuss corrective action with
        Licensee and to modify, correct or enhance such Non-Performing Module so that it conforms
        substantially to the specifications set forth in Exhibits A and B. After delivery of the
        modifications, corrections or enhancements, Licensee shall have thirty (30) additional calendar
        days in which to conduct Acceptance Tests.

c.      Right to Terminate. If any Non-Performing Module fails to pass the additional Acceptance Tests
        under Subsection 3.b hereof, Licensee shall have the right to terminate this Agreement with
        respect to such module and have no further obligations to Licensor in respect to such module. In
        the event Licensee terminates pursuant to this Section 3, Licensor shall reimburse to Licensee all
        fees paid in respect of a particular module, except an amount equal to __________ (insert number
        in words) (____ (insert number)%) of the total price of the module which is the subject of
        termination.

d.      Deemed Acceptance. If Licensee fails to give notice to Licensor pursuant to this Section within one
        hundred fifty (150) days of delivery of any System module that the module has either passed or
        failed the applicable Acceptance Tests, such module shall be deemed to have been accepted by
        Licensee.
                                                -3-


4.   Fees and Payment Schedule
a.   Payment. Except as otherwise provided herein, Licensee shall pay Licensor for the development of
     the System and the license hereunder the fees set forth in Exhibit "D" attached hereto in
     accordance with the payment schedule therein.

b.   Taxes. Licensee will pay (or reimburse Licensor), in addition to the charges specified in this
     Agreement, all taxes however designated (and any amount legally levied instead of taxes)
     resulting from this Agreement, except for taxes on Licensor’s net income. If Licensee claims
     exemption from any taxes resulting from this Agreement, Licensee will provide Licensor with
     documentation required by the taxing authority to support an exemption.

c.   Invoices. Unless otherwise specified in this Agreement or exhibits hereto, invoices are due and
     payable within thirty (30) days after receipt of invoice, unless Licensee in good faith disputes an
     amount charged and due.

5.   Licensor Services
a.   Guidelines for Providing Services. Licensor shall provide Work Order Services as described in
     Subsection 5.b hereof (the “Services”) to Licensee in accordance with the terms and conditions set
     forth below and elsewhere in this Agreement.

     i.      For the purpose of a security check, Licensor shall, prior to assigning any employee or
             subcontractor’s employee to participate in the performance of the Services, agree to allow
             any such employee or subcontractor’s employee to furnish Licensee with information
             required by the Statement of Employee Information for Security Check, attached hereto
             as Exhibit "E". Such information will be incorporated herein and signed by each such
             employee.

     ii.     Licensor will not permit any of its employees or its subcontractors’ employees (including
             substitute or replacement employees) to perform the Services unless and until Licensee
             has given Licensor written authorization following Licensee’s security check.

     iii.    If Licensee, in its sole discretion, determines that the Services are not being performed
             satisfactorily, or that any security standards, guidelines, or procedures are not being
             followed, Licensor shall take such steps as necessary and appropriate to remedy the
             situation, including, but not limited to, replacing employees of Licensor or subcontractors
             who are engaged in the performance of the Services.

     iv.     Neither Licensor’s employees nor its subcontractors’ employees shall be or shall be
             deemed to be an employee of Licensee for any purpose whatsoever. In conformance with
             and without limitation on any application of the foregoing statement, Licensor and its
             subcontractors shall be responsible for payment of all unemployment, social security and
             other payroll taxes on their respective employees who are engaged in the performance of
             the Services.

     v.      Unless otherwise approved in writing by Licensee, all individuals assigned by Licensor to
             participate in the performance of the Services shall be employees of Licensor. Licensor
             shall not employ any subcontractor in connection with the performance of the Services
             without the prior written consent of Licensee, which consent shall not be unreasonably
             withheld.
                                                -4-


     vi.     Licensor shall have the continuing obligation to allow its employees and its
             subcontractors’ employees to provide Licensee with any additional information of the
             type required by Exhibit "E" attached hereof.

     vii.    For security reasons, Licensor shall neither assign nor permit any of its employees or its
             subcontractors’ employees to perform the Services at Licensee’s premises at any time
             during which there is not at least one Licensee professional employee (or, where specified
             by Licensee, a Licensee officer) present in the immediate area where the Services are
             being performed.

     viii.   Licensor warrants that each of its employees and its subcontractors’ employees engaged
             in the performance of the Services shall be adequately experienced and trained before the
             employee is assigned to perform the Services. If payment under this Agreement is based
             in whole or in part on time charges, Licensor shall not replace any one of the employees
             performing the Services with another employee until the replacement employee has
             received such training from Licensor and Licensor’s employee designated for
             replacement (including any special training in the performance of the Services) as may be
             necessary to ensure the continuous and satisfactory performance of the Services in the
             absence of the replaced employee. Further, Licensor shall not charge Licensee and
             Licensee shall have no obligation to pay Licensor for any time spent by such employees
             or replacement employees in providing or receiving training or special training with
             regard to the performance of the Services.

     ix.     Neither Licensor, its subcontractors nor any of their employees are authorized to act or
             appear to act as representatives of Licensee, whether in performing the Services, or
             otherwise. If the performance of the Services shall include the use by Licensor or its
             subcontractors of Licensee’s facilities, equipment or other resources, such use is permitted
             only to the extent necessary for the performance of the Services and not for any other
             purpose. Neither Licensor, its subcontractors nor their employees may attend or
             participate in any activities sponsored or provided by Licensee for the benefit of
             Licensee’s Clients, customers or employees without Licensee’s prior written
             authorization.

     x.      After Licensor’s complete performance of Services under this Agreement or the
             termination of this Agreement, or at Licensee’s request, Licensor shall provide or return
             to Licensee any and all keys, identification cards, equipment, manuals, reports, tapes,
             disks, negatives, data or other documentation provided by Licensee or any of its
             Affiliates to Licensor or created by Licensor in connection with the performance of the
             Services under this Agreement.

b.   Work Order Services. From time to time Licensee may request Licensor to provide additional
     system development services, create customized enhancements to the System, or provide other
     consulting services which are not provided herein (the “Work Order Services”). Licensor shall
     provide Work Order Services in accordance with the terms and conditions set forth herein and
     pursuant to a Work Order Schedule which is substantially in the form of Exhibit "F" attached
     hereto. Such Work Order Schedule or Schedules shall be deemed to be part of this Agreement
     and unless otherwise provided therein shall be governed by the terms and conditions herein.

6.   Indemnity; Insurance
a.   Infringement. Licensor shall indemnify and hold harmless Licensee against any and all liability,
     suits, claims, losses, damages and judgments, and shall pay all costs (including reasonable
     attorneys’ fees) and damages to the extent that such liability, costs or damages arise from a claim
                                                -5-


     that the System, any services related to the System or any materials furnished by Licensor
     hereunder infringe any third party’s patent, copyright, trade secret, proprietary information,
     trademark or other legally enforceable proprietary right. Licensor, at its option, may defend or
     settle any such action or any part thereof brought against Licensee arising from a claim that such
     infringement as described herein has occurred. Licensor’s obligations under this Section are
     conditioned upon its being given:

     i.      prompt notice of each such claim received in writing by Licensee and

     ii.     the right to control and direct the investigation, defense and settlement of each such
             claim. The provisions of this Section shall survive any termination of this Agreement.

b.   Gross Negligence, Willful Misconduct. To the fullest extent permitted by law, Licensor shall
     indemnify and hold harmless Licensee, its employees and agents from and against all claims,
     damages, and expenses (collectively “damages”), including attorneys’ fees, to the extent that such
     damages arise out of, result from, or may be attributable to:

     i.      the dishonesty of an employee of Licensor or of Licensor’s subcontractors, or

     ii.     the gross negligence or willful misconduct of an employee of Licensor or of Licensor’s
             subcontractors.

     This indemnity shall not negate, abridge, or reduce any other obligation or indemnity to which
     Licensee may be entitled notwithstanding this indemnity. In any and all claims against Licensee
     or any of its agents or employees, the indemnification obligations under this Subsection 6.b hereof
     shall not be limited in any way by any limitation on the amount or type of damages,
     compensation or benefits payable under workers’ compensation acts, disability benefit acts or
     other employee benefit acts.

c.   Insurance. Licensor shall take out and maintain during the life of this Agreement workers
     compensation and disability insurance covering all Licensor employees engaged in the
     performance of services hereunder in conformance with the requirements of the laws of the State
     of ___________. (insert state) A certificate of insurance for each such insurance policy shall be
     delivered to Licensee prior to the commencement of performance of such services. Such certificate
     shall contain an agreement by the insurance company issuing the policy or policies that the policy
     or policies will not be canceled, terminated or modified without thirty (30) days prior notice to
     Licensee. At least two (2) weeks prior to the expiration of the original policy or any renewal
     thereof, a new certificate of the renewal of such insurance, containing an agreement by the
     insurance company that the insurance will not be canceled, terminated or modified without thirty
     (30) days prior notice to Licensee, shall be delivered to Licensee.

7.   Confidential Information; Security
a.   Obligations of Licensee
     i.      Restrictions. Licensee, using utmost care, shall hold in trust for Licensor and shall not,
             except in order to carry out Licensee’s rights and obligations under this Agreement, use
             or disclose to any other party, or allow any other party to inspect, copy or use any
             Licensor Confidential Information (as such term is hereinafter defined) which may be
             disclosed to Licensee by Licensor in connection with this Agreement.

     ii.     Definition of Licensor Confidential Information. As used herein, the term “Licensor
             Confidential Information” means the System and related information, Services, any
                                                 -6-


             information proprietary to Licensor contained in or related to the System and Services,
             materials or products provided by Licensor hereunder or created by or proprietary to
             Licensor, Licensor software development tools, and calculations and data formats which
             have been created by Licensor or are proprietary to Licensor, except such information
             which is in the public domain at the time of its disclosure to Licensee, which Licensee
             rightfully received from a third party without restrictions, or which Licensor has agreed
             to permit Licensee to disclose to third parties.

     iii.    Independent Development by Licensee. Nothing herein shall be deemed to limit Licensee’s
             rights to use or market software products and servic
				
DOCUMENT INFO
Description: USA software developers, prepare a Software License and Development Agreement with this comprehensive template. - The developer (licensor) agrees to develop a software system for the client (licensee), and grants the licensee a non-transferable, non-exclusive perpetual license to use the system. - Any affiliate of the licensee may license the system, at no additional cost, by agreeing in writing to be bound by the terms of the Agreement. - The developer retains all rights to the system (including all proprietary intellectual property rights), and to all modifications and enhancements, but the licensee retains all rights to the name of the system. - Any of the developer's personnel who will be performing services at the client's facility must provide all required information for security clearance and will be supervised by the client's personnel. - The developer indemnifies the licensee against all liability and claims and agrees to pay all costs and damages arising from any claim of infringement with respect to the system. - The developer indemnifies the licensee against all claims, damages and costs arising from any act of negligence, willful misconduct or dishonesty of an employee of the developer or its subcontractors. - Both parties agree to keep confidential and not disclose any of the other party's confidential information. - The developer will not be liable for any consequential damages. The developer's maximum liability will be limited to the total amount of fees paid by the licensee. - Each calendar quarter during the term of the Agreement, the developer will place a complete up-to-date copy of the source code in escrow with a designated escrow agent. The licensee will have access to the source code in certain circumstances, for instance, if the developer ceases doing business or files for bankruptcy. This USA Software License and Development Agreement template is av
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