SOFTWARE SALES AND LICENSING AGREEMENT

BETWEEN

____________________________(“THE CLIENT”)

AND

_________________________________ (“THE COMPANY”)

_____________________________________________________________________________________

THIS AGREEMENT is made on the …………..day of……….20……., (hereinafter “Effective Date”) by the Client and the Company (collectively referred to as the “Parties” or individually as the “Party”) and includes that Party’s successors and assigns.

In consideration of covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt of which is hereby acknowledged, Parties agree to the following terms and conditions and to be bound thereby:

Term: This agreement shall be valid from the Effective date for a period of 6 years. This Term may, however be extended for a further 2 years.

The License:

  • The Company grants the Client the exclusive right to distribute and sell the Software and other related products.
  • Unless with the Company’s prior written approval, the Client shall not procure from any third party any license for similar software.

License Fee: The Client shall pay the License fee as follows; 5% upfront payment within 90 days of purchase; and the remaining 95% within a year of purchase.

Until fully financed, the Client shall grant the Company exclusive access to sales revenue. If the Client activates additional two years to refinance, the Company will continue to manage sales proceed until the Client secures full finance for the six-year agreement.

Warrants and Representations: The Company warrants and represents that it has complete copyrights to the Software, the right to license it and these rights are all its rights as owner of the Software, and do not infringe on the rights of others.

Limitation of liability: The Software is provided and accepted “as is”. The Company’s liability will be limited to a maximum of the original purchase price of the Software. The Company will not be liable for any general, special, incidental or consequential damages including, but not limited to, loss of profits, loss of revenue, loss of data, or any other business or economic disadvantage suffered by the Client arising out of the use or failure to use the Software. The Company makes no warranty expressed or implied regarding the fitness of the Software for a particular purpose or that the Software will be suitable or appropriate for the specific requirements of the Licensee. The Company does not warrant that use of the Software will be uninterrupted or error-free, or that Company will correct all errors.  The Licensee accepts that software in general is prone to bugs and flaws within an acceptable level as determined in the industry.

User Support (select one)

☐ There shall be no user support or maintenance in this Agreement.

☐ There shall be a user support or maintenance in this Agreement.

 
Without the Company’s prior written approval, the Client shall not modify on its own or authorize a third party to modify the Software, including adding any software patches. Otherwise, the Company may immediately terminate the license hereunder. The Company shall have no liability whatsoever if the Client breaches this provision and as a result a part of the Software infringes upon the IP rights of any third party, or the data and software of Party B or any such third party are damaged or lost. If the Client needs to modify, upgrade or further develop the Software, it shall authorize the Company to complete the work at the Client’s cost. The Parties shall enter into a separate agreement with regard to such authorization. The Client shall permit the Company to monitor in real time the information in the server by accessing the server for the Software through the Internet.

Relationship of the Parties: The relationship of the parties hereto is that of an independent contractor. The Parties hereto are not deemed agents, partners, or joint venturers of the others for any purpose due to this Agreement or the transactions contemplated thereby. Neither Party, nor its employees, will have any authority to bind or make commitments on behalf of the other Party for any purpose, nor will it or they hold itself or themselves out as having such authority. The Contractor and the Client understand that it is the Contractor’s sole responsibility for withholding, accruing, and paying all income taxes, withholding taxes, continued service under this Agreement taxes, social security, and other taxes and amounts required by law for the payment made to the independent contractor herein and all payments to their personnel if any. 

Non-assignment: Neither Party shall transfer or assign this Agreement without the other Party’s consent which consent shall not be unreasonably withheld or delayed.

Intellectual property: For purposes of this Agreement, “Intellectual Property” shall mean any invention, innovation, improvement, development, discovery, computer program, device, trade secret, method, know-how, process, technique or the like, whether or not written or otherwise fixed in any form or medium, regardless of the media on which contained and whether or not patentable or copyrightable, and all patents, trademarks, copyrights and other intellectual property rights related thereto. 

The Client agrees that all intellectual property rights in existence at present or in the future in the Software that belong the Company shall have the exclusive right to protection thereof.

Confidentiality: All non-public, confidential or proprietary information of the Company, disclosed by the Company to the Client, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by the Company in writing. Upon the Company’s request, the Client shall promptly return all documents and other confidential materials received from the Company or destroy such information and provide written certification of such destruction. The Company shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to the Client at the time of disclosure, or (c) rightfully obtained by the Client on a non-confidential basis from a third party.

In addition, this Agreement is confidential and cannot be divulged to third parties, unless as provided by law, without the written consent of the Company. 

Further Assurances: The Parties hereto agrees to perform any further acts and to execute and deliver any further documents that may be reasonably necessary to carry out the provisions of this Agreement.

Force Majeure: For this Agreement, “Force Majeure” means an event which a diligent party could not have reasonably avoided in the circumstances, which is beyond the control of a party and includes, but is not limited to, war, riots, civil disorder, earthquake, storm, flood or adverse weather conditions, strikes, lockouts or other industrial action, terrorist acts, confiscation or any other action by government agencies.

A Party’s failure to fulfill its obligations due to Force Majeure shall not be considered a breach of this Agreement, provided that the Party has taken all reasonable precautions, due care, reasonable alternative measures, and minimal delay all to carry out the terms of this Agreement.

Termination

  • Either Party may terminate this Agreement prior to completion of the Services, at any time upon giving the other Party no less than ________notice in writing. If a Party wishes to terminate the contract with less than this stated period, the other Party reserves the right to charge costs that they have already paid in advance or incurred. 
  • The termination of this Agreement shall not discharge the liabilities accumulated by either Party.
  • Any Clauses intended by the Parties or this Agreement to survive the termination of this Agreement shall survive the termination of this Agreement by whatever cause.

Dispute resolution: Parties agree to settle disputes under this agreement through Mediation.

General provisions

  • This Agreement may be amended only by the written consent of the Parties hereto.
  • If any provision is held to be invalid or unenforceable, it shall not affect the validity or enforceability of any other provision.
  • This Agreement constitutes the entire agreement between the Parties. It supersedes all prior oral or written agreements or understandings between the Parties concerning the subject matter of this Agreement. The parties will exercise utmost good faith in this Agreement.
  • Failure by either Party to enforce any of the terms or conditions of this Agreement shall not be a waiver of their right to enforce the terms and conditions of this Agreement. No waiver by either Party of any breach of, or of compliance with, any condition or provision of this Agreement by the other Party shall be considered a waiver of any other condition or provision or of the same condition or provision at another time.
  • This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which constitute the same instrument.
  • The Article and Section headings in this Agreement are for convenience, and they form in no part of this Agreement and shall not affect its interpretation.
  • Whenever used herein, the singular number shall include the plural, and the plural number shall include the singular.
  •  Any references herein to the masculine gender or the masculine form of any noun, adjective, or possessive shall be construed to include the feminine or neuter gender and form, and vice versa.
  • This Agreement shall be governed in all respects by the laws of the State of Texas and its Courts without regard to its conflict of law provisions.
  • Any notice required to be given between the Parties pursuant to the provisions of this Agreement shall be in writing and shall be deemed to have been given at the time when actually received as a consequence of any effective method of delivery at the following addresses (including email) or such changed address as the Party shall have specified by written notice, provided that any notice of change of address shall be effective only upon actual receipt.

Client: _____________________________________________________________________________

Company: ____________________________________________________________________________

IN WITNESS WHEREOF, each of the Parties has executed this Agreement, as set forth below.

Signed by the CLIENT/ duly authorized representative of the CLIENT

Signature: Name: Designation: Date:
Signed by the duly authorized representative of the COMPANY

Signature: Name: Designation: Date:
 
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