Software License and Service Agreement
This Software License and Service Agreement (“Agreement”) is made as of June ______, 2009 (the “Effective Date”), by and between NewsGator Technologies, Inc., a Delaware corporation, with offices at 950 17th St. Ste. 2500, Denver CO 80202 (“NewsGator”) and the customer identified below (“Customer”).
Customer: Stratfor / Contact: Mr. Aaric EisensteinAddress: 700 Lavaca Street, Suite 900
/ Phone: (512) 744-4308
City, State Zip: Austin, TX, 78701 / Fax: (512) 744-4334
State/Country of Incorporation: Delaware / E-Mail:
Software Licensed: Customized iPhone Application build upon NewsGator’s iPhone NetNewsWire application. / Number of Users (of each type) and applicable fees:
100,000 downloads. Additional downloads are $500/month for every block of 50,000 users. NewsGator will notify Company in advance of any additional billings.
License, Set-up, and Service are $11,000.00
The Fees are non-refundable and due upon execution of this AgreementSupport and Maintenance Fees: $500 per month which includes the first 100,000 downloads / License Term: Twelve (12) months from the effective Date.
THE DISCOUNTED TERMS DEFINED ABOVE ARE CONDITIONAL UPON COMPANY EXECUTING THIS AGREEMENT IN CONJUNCTION WITH THE NEWSGATOR WIDGET LICENSE AGREEMENT.
Subject to the terms of this Agreement, NewsGator licenses Software (as that term is defined herein) to Customer. The Software connects to and relies on the Service (as that term is defined herein) provided by NewsGator pursuant to the terms of this Agreement.
This Agreement, including the terms and conditions and exhibits attached hereto, constitutes the entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties are expressly superseded.
In Witness Whereof, the parties have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date.
NewsGator Technologies, Inc.By:
Name:Mark C. Nass
Title:Vice President Finance / Customer
By:
Name:
Title:
1.Definitions.
1.1“Content” means any and all data, information, articles, news, text, pictures, images, sounds, RSS feeds, or other content.
1.2“Fees” means the fees described in the cover page of this Agreement.
1.3“Service” means internet-based server service hosted by or on behalf of NewsGator to enable Users to access Content provided by Customer, Users, or third parties and received by User through the Software. See Exhibit B.
1.4“Software” means the software program or programs described on the cover page of this Agreement, and any modified, updated, or enhanced versions of such programs provided by NewsGator to Customer pursuant to this Agreement.
1.5“User” means person who has been authorized by Customer to access Content via use of the Software and the Service, and for whom the applicable Fees (based on the type of User) have been paid to NewsGator.
2.License.
2.1Grant. Subject to the terms and conditions of this Agreement, NewsGator grants to Customer a nontransferable, nonexclusive, royalty-bearing, worldwide, limited license to provide to Users a copy of the Software to enable Users to access Content through the Software and the Service, and (b) access the Service. The Software is licensed, not sold, to Customer for Customer’s use only under the terms of this Agreement, and NewsGator reserves all rights not expressly granted to Customer.
2.2Restrictions. The rights granted to Customer in this Agreement are subject to the following restrictions: (a) except as expressly provided in a writing signed by NewsGator, Customer shall not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the Software or the Service available to any third party (other than authorized Users); (b) Customer shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Software or the Service, access the Software in order to build a similar or competitive product or service, or authorize any third party to do any of the foregoing; (c) except as expressly stated herein, no part of the Software may be reproduced, modified, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (d) the Software contains trade secrets, trademarks, patents, and copyrights owned by NewsGator, and Customer shall maintain the Software in confidence and shall not allow any access to or use of the Software by anyone other than Customer, or Customer’s employees, and any such use must be consistent with the terms, conditions and restrictions set forth in this Agreement.
3.Service. NewsGator will use reasonable efforts to make the Service available to Customer during the term of the Agreement. Customer will not use the Service for any illegal purpose nor for the infringement of any third party’s rights. Customer acknowledges that NewsGator may delete or disable access to any Content that NewsGator reasonably believes infringes a third party’s rights. NewsGator may terminate this Agreement if Customer (or its Users) infringes any third party rights. Customer’s access to and use of Content through the Software or the Service is governed by its (or its Users’) agreements with the providers of the Content. Customer will comply (and require its Users to comply) with any such third-party agreements. Customer agrees that it shall be fully responsible for any action or inaction of and by its Users. Customer agrees to defend, indemnify and hold harmless NewsGator from and against any liabilities, damages, claims, losses or actions arising from or related to Customer’s (or its Users’) access to, or use of, the Content, the Software, and the Service.
4.Delivery, Installation and Acceptance. The Software will be delivered to Customer or Users electronically over the Internet. The Software will be deemed to be accepted upon receipt by Customer or Users. Customer and Users are solely responsible for installation of the Software.
5.Fees and Payment. Customer will pay NewsGator the Fees listed on the cover page of this Agreement. Customer will pay NewsGator the Fees not later than thirty (30) days from the date NewsGator issues the invoice for same. All payments must be made in U.S. dollars. If any Fees are not paid when due and payable, Customer will pay NewsGator a late charge of one and one-half percent (1.5%) per month from the date due until actually received. All payments under this Agreement are exclusive of taxes and duties, and Customer agrees to bear and be responsible for the payment of all taxes and duties including, but not limited to, all sales, use, rental, receipt, personal property and other taxes (but excluding taxes based upon NewsGator’s income), which may be levied or assessed in connection with this Agreement.
6.Confidential Information.
6.1Confidentiality. The parties acknowledge that by virtue of their relationship, each party (“Disclosing Party”) may provide information and technology to the other party (“Receiving Party”) that the Disclosing Party considers proprietary and confidential (the Disclosing Party’s “Confidential Information”), including without limitation (with respect to NewsGator as the Disclosing Party), the Software, future product information, and the pricing and any negotiated terms of this Agreement. During the License Term and for five years thereafter, the Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and, except for the rights of Customer in Section 2 above, (a) not disclose, duplicate or otherwise reproduce, directly or indirectly, the Disclosing Party’s Confidential Information in whole or in part, and (b) take all reasonable steps to ensure that no unauthorized persons shall have access to the Disclosing Party’s Confidential Information and that all authorized persons having access to the Disclosing Party’s Confidential Information shall refrain from any such disclosure, duplication or reproduction.
6.2Exclusions. The Receiving Party shall have no obligation under Section 7.1 relating to any Confidential Information (a) that was previously known to the Receiving Party free of any obligation to keep it confidential; (b) that is or becomes generally available to the public by other than unauthorized disclosure; (c) that is developed by or on behalf of the Receiving Party independent of any information furnished under this Agreement; or (d) that is received from a third party whose disclosure does not violate any confidentiality obligation. Notwithstanding the above, the Receiving Party may disclose the Disclosing Party’s Confidential Information without violating the obligations of this Agreement, to the extent such disclosure is required to be disclosed by law or by any governmental agency having jurisdiction pursuant to a valid order to produce or in the course of a legal proceeding pursuant to a lawful request for discovery, provided, however, that if the Receiving Party is so required to disclose the Confidential Information, the Receiving Party shall promptly notify the Disclosing Party of the order or request in discovery and reasonably cooperate with the Disclosing Party if the Disclosing Party elects (at its expense) to seek to limit or avoid such disclosure by any lawful means.
6.3Nonexclusive Remedy. The Receiving Party acknowledges that its failure to comply with the provisions of this Section 7 (Confidential Information) shall result in irreparable harm to the Disclosing Party or its suppliers for which a remedy at law would be inadequate, and therefore, in the event of the breach or threatened breach by the Receiving Party of its obligations under this Section 5 therefore, the Disclosing Party shall be entitled to seek equitable relief in the form of specific performance and/or an injunction for any such actual or threatened breach, in addition to the exercise of any other remedies at law and in equity.
7.Disclaimer of Warranties. THE SOFTWARE, THE SERVICE, AND THE CONTENTARE PROVIDED TO CUSTOMER ON AN “AS-IS” AND “AS AVAILABLE” BASIS. NEWSGATOR AND ITS SUPPLIERS DISCLAIM ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES RELATING TO THE SOFTWARE, THE SERVICE AND THE CONTENT, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SYSTEM INTEGRATION, AND QUIET ENJOYMENT. NEWSGATOR DOES NOT WARRANT THAT USE OF THE SOFTWARE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SOFTWARE OR THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL CODE OR CONTENT.
8.Limitation of Remedies and Damages. In no event will NewsGator be liable for any consequential, indirect, exemplary, special or incidental damages, including any lost data and lost profits, arising from or relating to this Agreement. in no event will NewsGator’s total cumulative liability in connection with this Agreement, whether in contract or tort or otherwise exceed the Fees paid to NewsGator hereunder. One or more claims will not enlarge this limitation. The parties acknowledge that the provisions of this Section 10 reflect an agreed-upon allocation of risk between the parties and that the parties would not enter into this agreement without these limitations of liability. In addition, Customer disclaims all liability of any kind of NewsGator’s suppliers.
9.Term and Termination.
9.1Term and Renewal. This Agreement and the licenses granted hereunder will commence on the Effective Date and continue for the license term described on the cover page to this Agreement.
9.2Termination. NewsGator may terminate this Agreement, effective immediately upon written notice to Customer, if (a) Customer breaches any provision in Section 2 (License) and does not cure the breach within ten (10) days after receiving written notice thereof from NewsGator, (b) Customer fails to pay any portion of the Fees when due within ten (10) days after receiving written notice from NewsGator that payment is due, or (c) Customer breaches any other provision of this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from NewsGator.
9.3Effects of Termination. Upon termination or expiration of this Agreement for any reason, any amounts owed to NewsGator under this Agreement will be immediately due and payable, all licensed rights granted in this Agreement will immediately cease to exist, and Customer must promptly discontinue all use of the Software, erase all copies of the Software from Customer’s computers, and return to NewsGator or destroy all copies of the Software and Documentation on tangible media in Customer’s possession or control and certify in writing to NewsGator that it has fully complied with these requirements.
9.4Survival. Sections 6 (Confidential Information), 7 (Disclaimer of Warranties), 8 (Limitation of Remedies and Damages), 9.3 (Effects of Termination, 9.4 (Survival) and 10 (General) will survive expiration or termination of this Agreement for any reason.
10.General.
10.1Compliance with Laws. Customer will comply with all applicable export and import control laws and regulations in its use of the Software and, in particular, Customer will not export or re-export the Software without all required United States and foreign government licenses. Customer will defend, indemnify and hold harmless NewsGator from and against any violation of such laws or regulations by Customer, or any of its Users, agents, officers, directors, or employees.
10.2Force Majeure. If the performance of this Agreement or any obligation hereunder, except for the making of payments hereunder, is prevented, restricted or interfered with by reason of fire, flood, earthquake, explosion or other Act of God or casualty or accident, or strikes or labor disputes affecting third-party vendors, inability to procure or obtain delivery of parts, supplies or power, war or other violence, any law, order, proclamation, regulation, ordinance, demand or requirements of any governmental agency, or any act or condition whatsoever beyond the reasonable control of the affected party, the party so affected will take all reasonable steps to avoid or remove such cause of nonperformance and will resume performance hereunder with dispatch whenever such causes are removed.
10.3Publicity. Customer agrees to: (i) issue a mutually acceptable joint press release with NewsGator within 60 5 days of the appearance of the Company iPhone application in the iTunes App store. Effective Date stating that Customer is using the Software; (ii) disclosure by NewsGator in its quarterly financial press release, and in related discussions with NewsGator prospective clients, NewsGator customers, and industry/financial analysts, of Customer’s license and intended use of NewsGator Software; and (iii) NewsGator’s inclusion of Customer on NewsGator customer/partner lists.
10.4Assignments. Customer may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement (including, without limitation, its licenses with respect to the Software) to any third party without NewsGator’s prior written consent except pursuant to a transfer of all or substantially all of Customer’s business and assets to which this Agreement relates, whether by merger, sale of assets, sale of stock or otherwise. Any attempted assignment or transfer in violation of the foregoing will be void.
10.5U.S. Government End Users. The Software is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only those rights set forth therein.
10.6Notices. All notices, consents and approvals under this Agreement must be delivered in writing by courier, by electronic facsimile (fax), or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth beneath such party’s signature, and will be effective upon receipt or three (3) business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address by giving notice of the new address to the other party.
10.7Governing Law and Venue. This Agreement will be governed by the laws of the State of Colorado without giving effect to any choice of law principles that would require the application of the laws of a different state. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement may be brought in a federal or state court in Colorado, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
10.8Modifications in Writing. Any modification or amendment of any provision of this Agreement must be in writing and bear the signature of the duly authorized representative of each party.
10.9Prevailing Party. In the event a dispute arising under this Agreement results in litigation, the non-prevailing party shall pay the court costs and reasonable attorneys’ fees of the prevailing party.
10.10Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
10.11Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
10.12Construction. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”
1.
Exhibit A
Maintenance and Support
Customer shall provide tier 1 support to Users. NewsGator shall provide tier 2 support to Customer.
Exhibit B
Services & Process Description
NewsGator has built a version of NetNewsWire which can labeled with Company logo, content and ads. Users will only need to download and install to use the application, there is no set up or additional configuration necessary.
Branding
Companymay brand the application at several points: