EXAMPLE ONLY (Please contact Ingen Software for final agreement)
OASIS Software License Agreement
This OASIS Software License Agreement (“License Agreement”) is entered into by and between _ _________________ (“Licensee”) and Ingen Software, Inc. (“Ingen”) and is effective as of ___________________, 20__ (“Effective Date”).
WHEREAS, Licensee is a ______________ for lighting products; and
WHEREAS, Ingen has developed software and other intellectual property related to software for the lighting supply industry; and
WHEREAS, Licensee desires a software program to handle product information, orders and sales data relating to lighting products; and
WHEREAS, Ingen desires to license the software to Licensee and provide customization, training and support services or related enhancements and modifications as may be required by Licensee.
Now therefore in consideration of the mutual undertakings and subject to the conditions set forth herein, the parties agree as follows:
1. Grant of License. Ingen hereby grants to Licensee a non-exclusive, non-transferable, perpetual license to use the software in object code form and related materials as described in more detail on Exhibit A hereto (hereinafter collectively referred to with all future updates, revisions and/or customizations as the “OASIS Software”). Neither title to nor ownership of the OASIS Software shall belong to Licensee. Licensee acknowledges that this license is not considered a sale of goods. No license is granted hereunder to the OASIS Software source code, and nothing herein shall be construed so as to allow Licensee to transfer, sublicense, decompile, disassemble or modify the OASIS Software. In consideration of the license granted hereunder, Licensee shall pay the license fees stated in Exhibit A.
2. Limited Use. Licensee shall be licensed to use of the OASIS Software on the designated number of computers identified on Exhibit A. Licensee shall provide a list of the computers and their locations at least annually. All usage shall be subject to audit and verification by Ingen during normal business hours upon reasonable notice.
3. Copies of Software. Licensee may make only the number of copies of the OASIS Software as specifically provided for in Exhibit A attached hereto, including copies for use as backup and archival purposes. Licensee must maintain appropriate records of the number and locations of all such authorized copies and furnish such information to Ingen upon request. The original and all copies of the OASIS Software or any part thereof, made by Licensee shall remain the property of Ingen.
4. Nondisclosure. The parties agree that any Confidential Information provided under this Agreement shall be held and maintained in strict confidence. Each party shall protect the other’s Confidential Information from unauthorized use, copying and dissemination and use the greater of industry standard precautions or the degree of care that such party uses to protect its own like information. Neither party will use the other’s Confidential Information for purposes other than those necessary directly to further the purposes of this Agreement. Neither party will disclose to third parties the other’s Confidential Information without the prior written consent of the other party. However, any of the Confidential Information may be disclosed to directors, officers, employees or agents (collectively, “Representatives”) of the recipient, but only if such Representatives need to know the Confidential Information for the performance of their duties in connection with the transactions contemplated under this Agreement, it being understood (i) that such Representatives shall be informed by the recipient of the confidential nature of the Confidential Information and the requirement that it not be used other than for the purpose described above, and (ii) that, in any event, the recipient shall be responsible for any breach of this License Agreement by any of its Representatives.
“Confidential Information” shall mean: (i) the source codes of and trade secrets contained in the OASIS Software which trade secret status shall be marked with restricted rights legends; (ii) any materials or information marked as confidential (or described as confidential at the time of oral disclosure and summarized in writing and sent to the receiving party within thirty (30) days of disclosure, with the appropriate markings) at the time of disclosure, or any other materials that based on the events surrounding such disclosure are reasonably deemed to be confidential; and (iii) the terms of this License Agreement.
“Confidential Information” does not include information that can be demonstrated by clear and convincing documentary evidence to have been (i) already known to the receiving party at the time it is disclosed and has not been obtained wrongfully, (ii) publicly known without fault of the receiving party, (iii) approved for release in writing by the disclosing party, (iv) independently created through no breach of this License Agreement, (v) disclosed without restriction by the disclosing party to a third party, or (vi) disclosed pursuant to legal obligations beyond the control of the disclosing party provided that the disclosing party uses its best efforts to notify the non-disclosing party in advance of such required disclosure. Within fifteen (15) days after the recipient's receipt of the disclosing party's written request for the return of any portion or all Confidential Information, all the disclosing party's Confidential Information and all copies thereof in the recipient's possession or control must be returned to the disclosing party or destroyed by the recipient at the disclosing party's instruction. Upon request, the recipient shall certify in writing that it has done so.
The OASIS Software, including the source code, includes trade secrets of Ingen. Licensee shall not permit the unauthorized use or disclosure of the OASIS Software or any copies or updates or any part thereof. Licensee shall maintain the OASIS Software in secure premises to prevent unauthorized use, disclosure or copying. Licensee agrees to take reasonable steps to insure the confidentiality of the OASIS Software with Licensee’s employees who are permitted access to the OASIS Software and any copies thereof to prevent unauthorized use, disclosure or copying. Licensee shall maintain the confidentiality of such trade secrets and shall indemnify and hold harmless Ingen for any lost profits, damages, lost business opportunities and other losses of all kinds, including incidental and consequential damages, and attorneys fees in the event that such trade secrets are used in violation of this Agreement, or in the event of the unauthorized use or disclosure by Licensee’s employees or agents.
5. Configuration. Licensee shall be solely responsible for supplying the standard hardware requirements and for the installation of the OASIS Software used by Licensee.
6. Maintenance. Ingen shall provide maintenance and technical support services for the OASIS Software in accordance with Exhibit A.
7. Payment. Licensee shall pay to Ingen the full amount of the license fees set forth in Exhibit A attached hereto, plus any applicable sales, use, gross receipts, compensating taxes or similar taxes (excluding herefrom taxes based on the net income of Ingen) imposed on the grant of the license or Licensee’s use of the OASIS Software as provided herein. Such payment shall be made by Licensee immediately upon receipt of Ingen’s invoice. Conditioned upon Licensee’s timely payment of the fees as set forth on Exhibit A, Ingen shall continue to supply updates and revisions of the OASIS Software to Licensee and provide the related technical support and training.
8. Representations and Warranties.
8.1 Ingen represents and warrants that (a) it is an Arkansas corporation in good standing, (b) it has authority to execute this License Agreement, and (c) this License Agreement does not violate the terms of the license agreement between Ingen and any third party software vendor.
8.2 Licensee represents and warrants that (a) Licensee shall fully test and confirm the functionality of the OASIS Software and subsequent modifications or revisions upon receipt, but in any event, within thirty (30) days of delivery; (b) Licensee is responsible for periodic software system testing, immediate notification of all known software irregularities and malfunctions; and calibration, testing and maintenance of all hardware; (c) Licensee is responsible for periodic backup of all data and archival retention of such information; and (d) Licensee is responsible for providing the specific minimum hardware configuration required for the OASIC Software and making such hardware updates as may be required by the Ingen software specifications, which may be modified from time to time.
9. Limitations on Liability and Disclaimer of Warranties and Remedies.
9.1 THE OASIS SOFTWARE IS FURNISHED “AS IS,” AND INGEN HEREBY EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE OASIS SOFTWARE IS ACCURATE, ERROR FREE OR COMPLETE OR FIT FOR ANY PURPOSE OR USE INTENDED BY LICENSEE, OR THAT THE OASIS SOFTWARE WILL OPERATE WITHOUT ERROR OR INTERRUPTION. LICENSEE EXPRESSLY ACKNOWLEDGES SUCH DISCLAIMER AND ACKNOWLEDGES THAT THE LICENSE TO USE THE OASIS SOFTWARE GRANTED TO LICENSEE HEREUNDER IS WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY. LICENSEE FURTHER ACKNOWLEDGES THAT IT HAS NOT IN ANY WAY RELIED UPON REPRESENTATIONS MADE TO IT BY INGEN OR ANY OF ITS EMPLOYEES OR REPRESENTATIVES IN ENTERING INTO THIS AGREEMENT AND THAT LICENSEE’S DETERMINATION AS TO THE USEFULNESS OF THE OASIS SOFTWARE WILL BE BASED SOLELY UPON LICENSEE’S INSPECTION, TESTING AND USE.
9.2 NEITHER INGEN NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, WILL BE LIABLE FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOST PROFITS, COSTS OF COVER OR ANY OTHER SPECIAL, DIRECT, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING IN ANY WAY OUT OF THIS AGREEMENT OR FROM THE USE OF THE OASIS SOFTWARE, HOWEVER CAUSED AND REGARDLESS OF ANY THEORY OF LIABILITY, AND INGEN’S SOLE OBLIGATION SHALL BE THE REFUND OF THE LICENSE FEE, IF REQUIRED BY PARAGRAPH 8 ABOVE. LICENSEE ACKNOWLEDGES THAT THE LICENSE FEE REFLECTS THIS ALLOCATION OF RISKS.
9.3 LICENSEE SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS INGEN AND ITS RESPECTIVE AGENTS AND EMPLOYEES AGAINST AND FROM ANY AND ALL LIABILITY ARISING DIRECTLY OR INDIRECTLY FROM LICENSEE’S USE OF THE OASIS SOFTWARE. LICENSEE ACKNOWLEDGES THAT IT HAS KNOWINGLY ACCEPTED ALL RISKS, LIABILITY AND RESPONSIBILITY FOR ITS USE OF THE OASIS SOFTWARE AND FOR ITS USE OF THE RESULTS OBTAINED AND CONSEQUENCES RESULTING FROM ITS USE OF THE OASIS SOFTWARE. LICENSEE SHALL INDEMNIFY AND HOLD HARMLESS INGEN AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, SETTLEMENTS, JUDGMENTS, COSTS, FINES, PENALTIES, AND EXPENSES INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS' FEES, RESULTING FROM, OR ARISING OUT OF, OR IN CONNECTION WITH, ANY PERFORMANCE OF LICENSEE, OR ITS EMPLOYEES AND AGENTS UNDER THIS AGREEMENT EXCEPT THAT THE LICENSEE SHALL HAVE NO OBLIGATION TO INDEMNIFY INGEN PURSUANT TO THIS LICENSE AGREEMENT TO THE EXTENT THAT SUCH CLAIMS, LAWSUITS, SETTLEMENTS, JUDGMENTS, COSTS, FINES, PENALTIES AND/OR EXPENSES ARE DUE TO THE ACTIVE OR PASSIVE NEGLIGENCE OR WILLFUL MISCONDUCT OF INGEN.
9.4 INGEN SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSEE, ITS OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES FROM AND AGAINST ANY AND ALL LIABILITY, CLAIMS, LAWSUITS, SETTLEMENTS, JUDGMENTS, COSTS, FINES, PENALTIES, AND EXPENSES INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS' FEES, ARISING OUT OF OR IN CONNECTION WITH ANY CLAIMS THAT THE SOFTWARE PROVIDED UNDER THIS AGREEMENT INFRINGES OR VIOLATES ANY PATENTS, TRADE SECRETS, COPYRIGHTS, TRADEMARKS, TRADE NAMES OR OTHER INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY. SHOULD LICENSEE'S, ITS AGENT'S OR EMPLOYEE'S USE OF THE SOFTWARE PROVIDED BY INGEN BE DETERMINED TO HAVE INFRINGED, OR IF, IN INGEN’S JUDGMENT, SUCH USE IS LIKELY TO BE INFRINGING, INGEN MAY, AT ITS OPTION: (1) PROCURE FOR LICENSEE THE RIGHT TO CONTINUE TO USE THE SOFTWARE; OR (2) REPLACE OR MODIFY THE SOFTWARE TO MAKE ITS USE NON-INFRINGING WHILE YIELDING SUBSTANTIALLY EQUIVALENT RESULTS. IF NEITHER OF SUCH OPTIONS ARE OR WOULD BE AVAILABLE ON A BASIS THAT INGEN FINDS COMMERCIALLY REASONABLE, INGEN MAY TERMINATE THIS AGREEMENT, LICENSEE, ITS AGENTS AND EMPLOYEES SHALL RETURN THE SOFTWARE AND INGEN SHALL REFUND THE FEES PAID FOR THE ASSOCIATED SERVICES, LESS A REASONABLE ALLOWANCE FOR USE.
10.1 Either party may terminate these this License Agreement if the other party fails to remedy a breach of any material obligation under this License Agreement within thirty (30) days of receiving written notice from the other party detailing such breach. In the event Ingen fails to cure said material breach within thirty (30) days of receiving notice, Licensee has the right to terminate the License Agreement and shall receive a prorated refund of all fees advanced to Ingen for services not utilized by Licensee under the License Agreement. If the termination is related to other than a material breach by Licensee, Licensee shall continue to have the right to use software licensed prior to the date of termination.
10.2 Within thirty (30) days after any termination of this license pursuant to this Agreement, Licensee shall return to Ingen all copies of the OASIS Software supplied or made pursuant to this Agreement, together with a signed letter certifying that Licensee has discontinued all use of the OASIS Software or any copies thereof and that all copies have been returned to Ingen.
10.3 Termination of license rights granted hereunder shall not affect obligations that are intended to survive such termination, such as Paragraph 4 (Nondisclosure) and Paragraph 9 (Limitations on Liability and Disclaimer of Warranties and Remedies).
11. General Provisions.
11.1 Modification. This License Agreement is subject to modification annually or upon the issuance of any subsequent version revision to allow for (a) changes in hardware specifications, (b) changes in pricing structures for licensing, training and/or technical support, (c) such other changes as may reasonably be necessary in light of enhanced features and performance of the software. Notice of such modifications shall be provided to Licensee thirty (30) days prior to implementation, and Licensee shall have the option to retain the existing version of software, as indicated by termination of maintenance, under the existing terms and conditions in lieu of accepting the upgrade. In the event that no objection is made to the revised terms and conditions within 30 days of notice, Licensee shall be deemed to have accepted such modified terms without formal execution by the parties of an additional agreement.
11.2 Assignments. Neither party shall assign any of its rights pursuant to this License Agreement without the express, written consent of the other party, which consent shall not be unreasonably withheld.
11.3 Nonwaiver. The failure of either party to insist upon or enforce, in any instance, strict performance by the other of any term of this License Agreement or to exercise any rights herein, shall not be construed as a waiver or relinquishment to any extent of its rights to assert or rely upon such terms on any future occasion.
11.4 Notices. All notices required or allowed to be given pursuant to this License Agreement shall be in writing and sent by First Class Mail, postage prepaid, or by facsimile to the following addresses or facsimile numbers, or such other address or facsimile number as may be given by written notice to the other party.
Ingen Software, Inc. Licensee
Mr. Brian Howard, President ______________________________
Ingen Software, Inc. ______________________________
3022 Highway 367 S. ______________________________
Cabot, AR 72023 ______________________________
Fax: 501.843.0354 Fax: ___________________________
11.5 Governing Law. This License Agreement shall be construed and interpreted in accordance with the laws of the State of Arkansas. Jurisdiction and venue for all actions related to the enforcement of this License Agreement shall be brought in Arkansas, Little Rock.
11.6 Severability. If any clause or provision of this License Agreement shall be held to be illegal or unenforceable, the validity of the remaining portions of this License Agreement shall not be affected thereby and shall remain in full force and effect.
11.7 Entire Agreement. This License Agreement, including exhibits hereto, contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior understandings relating to the subject matter hereof. Except as stated in 11.1, any amendments or modifications hereto must be set forth in writing and signed by both parties hereto. It is expressly understood and agreed that no provisions contained in any purchase order or contract order issued by Licensee shall be binding or in any way become a part of this License Agreement.
IN WITNESS WHEREOF, the parties have executed this License Agreement as of the Effective Date.
Ingen Software, Inc.
Brian Howard, President
Software License Agreement SAMPLE
Special Terms and Conditions
License fees for XX users and OASIS/Web and Sybase: $XX
Support will be included for the first year.
Support for following years will be calculated as follows: Add the total OASIS license fees (not including Sybase license fees) and subtract any standard discounts. Standard support is 15% of the resulting price.
Fees: XX * $ + (options) = $XX
Standard Discount for XX users and OASIS/Web: $XX
Net Price: $XX - $XX = $XX
Support Cost: $XX * .15 = $XX (Unless total users does not meet the minimum support cost - see spreadsheet)
(Discount is calculated as XX% for agencies with XX-XX users.)
(See attach spreadsheet)