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LICENSE AGREEMENT 



This License Agreement is effective [DATE],

BETWEEN:  [YOUR COMPANY NAME] (the "Company"), a company organized and existing under the laws of the [State/Province] of [STATE/PROVINCE], with its head office located at:

      [YOUR COMPLETE ADDRESS]

AND:  [COMPANY NAME] (the "Client"), a company organized and existing under the laws of the [State/Province] of [STATE/PROVINCE], with its head office located at:

      [COMPLETE ADDRESS]


LICENSE AGREEMENT by and between [COMPANY NAME], having offices at [FULL ADDRESS], [STATE/PROVINCE] Province of [STATE/PROVINCE], and ("Customer"), having offices at [SPECIFY], is made and entered into as of the [DATE] day of, [DATE]. 

For each Program the applicable Supplement shall specify: (i) the Hardware (including the central processing unit (s) (CPU), (ii) the Operating System Software, (iii) the total fees, (iv) the number of permitted clients and/or users with unique logins (if any), and (v) the Site.


LICENSE

For each Program, and related documentation, listed on a supplement, [COMPANY NAME] grants to Customer a perpetual, non-exclusive, nontransferable license, to Use, and allow its Affiliates (for so long as they are Affiliates) to use, the Program solely for its and its Affiliates internal administrative purposes on the Hardware and Operating System Software at the Site, subject to restrictions set forth on the applicable supplement. In this Agreement (a) "Documentation" means user guides, operating manuals, and specifications, whether in print or machine readable media, in effect as of the date of shipment, (b) "Use" means to load, execute, employ, utilize, store or display the Program, (c) "Affiliates" means any company controlling, controlled by or under common control with, Customer, and (d) "Server" means one or more interconnected computer hardware systems configured to run the Program(s). Copying or Use of the Program or Documentation other than as expressly authorized by this Agreement is not permitted. Customer may delegate authority to execute supplements to any affiliate. Customer shall ensure that its Affiliates comply with the terms of this Agreement, and will be liable for any breach by any Affiliate.
 
The Program may be transferred temporarily to a backup computer if the Hardware is inoperative. The Program may also be transferred to computer hardware or used with an operating system, other than the specified Hardware or Operating System Software, subject to [COMPANY NAME]'s transfer policies and fees then in effect. Customer may make a reasonable number of copies of the Program exclusively for testing, disaster recovery, inactive back-up or archival purposes.

As soon as practicable after signing the applicable supplement, [COMPANY NAME] shall deliver the Program and Documentation to the Site. With respect to host application Programs, only [NUMBER] set of Documentation and Program copy shall be delivered to Customer and with respect to non-host applications, [NUMBER] set of Documentation and one copy of each Program per Server shall be delivered to Customer. Customer may make and use additional copies of Programs and electronic documentation for the number of clients/users specified on the applicable supplement, if any installation, implementation, training and technical services and additional copies of Programs and Documentation may be obtained at [COMPANY NAME]'s then current prices.


SUPPORT AND MAINTENANCE

So long as Customer has paid the applicable support fees, from the execution date of the applicable Supplement [COMPANY NAME] shall support the Program in accordance with this Section 2 and the applicable supplement. Upon receipt from Customer of notice of a Program problem, [COMPANY NAME] shall use reasonable efforts to correct or circumvent the problem. Any corrections to the Program will be made to the most current generally available release of the Program. After the introduction of a new generally available release of a Program, [COMPANY NAME] will continue to support the previously released version of such Program.

So long as customer has paid the applicable maintenance fees, error correction releases and/or performance enhancement releases of the Program not separately marketed by [COMPANY NAME] will be provided to Customer. The license granted to Customer under Section [NUMBER] shall extend to each correction and enhancement release received from [COMPANY NAME]. Customer may reinstate lapsed maintenance for any Program by paying the then current maintenance fees and any other maintenance fees in arrears.

Support will be included in the initial License Fee and may be extended for one year periods on the anniversary of the first supplement at [COMPANY NAME]'s then current rates for so long as [COMPANY NAME] offers support or maintenance. Maintenance will be included in the initial License Fee for host applications, and may be purchased by Customer for all other applications by execution of a supplement, renewable at the anniversary of any such supplement.

[COMPANY NAME] shall have no obligation to support or maintain the Program for Use on any computer system other than the Hardware and Operating System Software or in the event Customer modifies the Program except as permitted by this Agreement. Only those versions of different cooperating Programs specified by [COMPANY NAME] will execute correctly together on a single CPU or in a network.

[COMPANY NAME] has no obligation to modify any version of the Program to run with new versions or releases of the Operating System Software or Hardware. If Customer purchases maintenance from [COMPANY NAME] for any Programs for Use on specific hardware or in a specific network, Customer must purchase maintenance from [COMPANY NAME] for all functionally related Programs licensed by [COMPANY NAME] for use on such hardware or network.

[COMPANY NAME] shall deliver one copy of any [COMPANY NAME] source code not delivered to Customer for the Program to [COMPANY NAME]'s then current escrow agent. So long as Customer is current on support or maintenance and is in compliance with the provisions of its agreements with [COMPANY NAME], in the event [COMPANY NAME] ceases to maintain the Program(s), Customer shall have a right to obtain access to such escrowed source code from the escrow agent.



CONFIDENTIALITY; PROPRIETARY RIGHTS

Each party shall hold Confidential Information of the other in confidence. "Confidential Information" includes without limitation the Program and all Documentation, and all methods or concepts utilized therein, plus all information identified by the disclosing party as proprietary or confidential. All Confidential Information shall remain the sole property of the disclosing party. Upon execution of a satisfactory non-disclosure agreement, third parties may have access to Confidential Information. Information will not be considered to be Confidential Information if 

available to the public other than by a breach of this Agreement; 

rightfully received from a third party not in breach of any obligation of confidentiality; 

independently developed by a party without access to Confidential Information of the other; (iv) known to the recipient at the time of disclosure; 

provided the other party is given notice and opportunity to intervene, produced in compliance with applicable [YOUR COUNTRY LAW] or a court order; or 

it does not constitute a trade secret, then after [NUMBER] years from the date of disclosure.


All Programs and Documentation, and any modifications or copies thereof, are proprietary and protected by copyright and/or trade secret law and no ownership rights are transferred by this Agreement. All proprietary notices incorporated in, marked on, or affixed to a Program or other Confidential Information by [COMPANY NAME] or its suppliers shall be duplicated by Customer on all copies of all or any part of the Program and shall not be altered, removed or obliterated.

Customer shall not modify, reverse reengineer, reverse assemble or reverse compile any Program or part thereof, except that Customer may modify the data file portions of the Program to the extent and in the manner described in the Documentation for the Program.


WARRANTY

[COMPANY NAME] warrants that it has the right to license the Program to Customer and that each Program licensed to Customer will operate substantially in conformance with the Documentation for such Program for a period of one year from the date of shipment of such Program to Customer. [COMPANY NAME] warrants the media on which the Program is delivered to be free of defects in material and workmanship for a period of [NUMBER] calendar days following the date of shipment.  

Customer's sole and exclusive remedies for breach of either of the foregoing warranties shall be either replacement of the defective materials or a refund of the license fee paid for Program(s) licensed on a supplement. Such remedies are available only if [COMPANY NAME] is notified within the Warranty Period and is provided a reasonable opportunity to cure such breach.


NO OTHER WARRANTY, EXPRESS OR IMPLIED, IS MADE WITH RESPECT TO THE PROGRAM, DOCUMENTATION OR SERVICES TO BE SUPPLIED BY DBS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

INFRINGEMENT INDEMNITY

[COMPANY NAME] shall indemnify, defend, or at its option settle, any claim or suit against Customer on the basis of infringement of any patent, trademark, copyright or trade secret by the Program or Use thereof and pay any final judgment entered against Customer on such issue in any such proceeding; provided, [COMPANY NAME] has sole control of such defense and/or settlement and Customer promptly notifies [COMPANY NAME] and gives [COMPANY NAME] all related information known to Customer. If any part of the Program is, or may become, the subject of any such proceeding, [COMPANY NAME] may, and in the event of any adjudication that any part of a Program does so infringe or if the licensing or Use of the Program or 

any part thereof is enjoined, [COMPANY NAME] shall, at its expense and option, do one of the following things: procure for Customer the right to Use the Program or the affected part thereof; replace the Program or affected part thereof with other suitable programs; modify the Program or affected part thereof to make it non-infringing; or if none of the foregoing remedies are commercially feasible, refund the aggregate payments paid by Customer for the Program or the affected part thereof, less reasonable amortization for Use. [COMPANY NAME] shall have no obligations under this Section 5 with respect to any claim to the extent it is based upon (i) the Use of any version of the Program other than a current, unaltered release of the Program, if such infringement would have been avoided by the Use of a current, unaltered release; (ii) the combination, operation, or Use of the Program with software or hardware other than as specified by [COMPANY NAME], if such infringement would have been avoided in the absence of such combination, operation or Use; or (iii) the Use of the Program on or in connection with a computer system other than the Hardware and the Operating System Software


LIMITATION OF LIABILITY

Except (i) as provided in Section 5, (ii) in the event of death or personal injury, and (iii) in the event of damage to tangible personal property, the total liability, if any, of [COMPANY NAME], including but not limited to liability arising out of, resulting from or in any way related to, contract, tort, breach of warranty, infringement or otherwise, shall not in any event exceed the license fees paid by Customer with respect to the affected Program. Neither [COMPANY NAME] nor its licensors shall be liable for loss of profits, or indirect, special, incidental, or consequential damages.    


GENERAL

Neither this Agreement nor any license hereunder may be assigned (whether by operation of [YOUR COUNTRY LAW] or otherwise) by Customer without [COMPANY NAME]'s prior written consent.


[COMPANY NAME] may, from time to time, but not more often than quarterly, request customer to provide a certification to the effect that actual Use of the Program is in complete compliance with the terms of this Agreement and any supplement. In addition, [COMPANY NAME] may, upon reasonable notice, perform an audit to determine compliance with the terms of this Agreement. If the number of copies or users is found to be greater than that contracted for or the computer system on which the Program is in use differs from the Hardware and Operating System Software specified on any supplement, [COMPANY NAME] shall have the right to charge Customer the applicable current list prices therefore. If the resulting adjustments to the license fees owing by customer are greater than [PERCENTAGE %] of the license fees previously paid by customer to [COMPANY NAME], [COMPANY NAME] may also charge customer the reasonable expenses associated with such audit.

All fees shall be paid within [NUMBER] days after the invoice date. Customer shall pay all applicable shipping charges and sales, use, personal property or similar taxes, exclusive of [COMPANY NAME]'s income and corporate franchise taxes. Customer shall reimburse [COMPANY NAME] for all reasonable travel and living expenses incurred by [COMPANY NAME] in rendering all services. After notice, past due amounts owing from Customer shall bear interest at the rate of [PERCENTAGE %] per month. Customer shall reimburse [COMPANY NAME] for all reasonable costs incurred (including reasonable attorneys' fees) in collecting past due amounts owed by Customer.  

On termination of any license granted pursuant to this Agreement, Customer shall cease using the Program and Documentation and Customer shall certify in writing to [COMPANY NAME] that all copies (in any form or media) of the Program and Documentation, whether or not modified or incorporated into other materials, have been destroyed or returned to [COMPANY NAME]. Termination of this Agreement shall not relieve Customer's obligation to pay all fees accruing prior to such termination and shall not limit either party from pursuing any other remedies available to it. Each party's obligations under Section 3 hereof shall survive termination of any license or this Agreement.

Each party's obligations under Section 3 hereof are of a unique character and each agrees that any breach may result in irreparable and continuing damage to the other party for which there will be no adequate remedy in damages. In the event of such a breach, the damaged party will be entitled to injunctive relief and/or a decree for specific performance and such further relief as may be proper.

This Agreement is subject to any governmental [YOUR COUNTRY LAW], orders or other restrictions on the export of Programs and related information and Documentation that may be imposed by governmental authorities. Customer agrees that it will comply in all respects with any governmental [YOUR COUNTRY LAW], orders or other restrictions on the export of Programs (and any related information and Documentation) which may be imposed from time to time by the government of [COUNTRY] and any country to which any Program is shipped by Customer.

If either party materially breaches any of its obligations hereunder and fails to remedy such breach (if such breach can be remedied) within [NUMBER] days of written notice of such breach, the other party may terminate any license or this Agreement. All notices relating to termination or default under this Agreement shall be in writing and delivered by overnight delivery service or certified mail return receipt requested, to the address of such party specified above (addressed in the case of [COMPANY NAME] to the attention of its Contracts Department) or specified by such party in accordance with this Section.


This Agreement, together with the exhibits and addenda hereto, and supplements issued hereunder, constitutes the entire agreement of the [COMPANY NAME] and supersedes all previous and contemporaneous communications, representations, understandings or agreements related to the subject matter hereof. This Agreement may be modified only in a writing signed by both parties. Customer may issue a purchase order in lieu of a supplement, if confirmed by a [COMPANY NAME] invoice or other [COMPANY NAME] confirming document. Purchase orders shall be binding upon [COMPANY NAME] only with respect to items required to be set forth on a supplement. Pre-printed terms and conditions on or attached to any such purchase order shall be of no force or effect.  



IN WITNESS WHEREOF, each party to this agreement has caused it to be executed at [PLACE OF EXECUTION] on the date indicated above.


COMPANY             CLIENT


                          
Authorized Signature          Authorized Signature


                          
Print Name and Title          Print Name and Title

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