Form Master Software License

Form Master Software License

Page 1 of 6

FORM SOFTWARE LICENSE

[Licensor Friendly]

BRIEF DESCRIPTION

This is a form master software agreement prepared from the perspective of a licensor looking to license an enterprise customer to install and use its software system.

BODY OF DOCUMENT

MASTER SOFTWARE LICENSE AGREEMENT

THIS MASTER SOFTWARE LICENSE AGREEMENT (this “Agreement”) is entered into as of ______, __, ______(“Effective Date”) by and between______(“Licensor”), a ______corporation having an address at______, and ______(“Licensee”), a ______corporation having an address at ______.

RECITALS

WHEREAS, Licensor owns existing proprietary softwareand may, from time to time, develop additional proprietary software; and

WHEREAS, Licensee desires to obtain, and Licensor is willing to grant, a license under certain of Licensor’s proprietary software upon the terms and conditions of this Agreement.

TERMS AND CONDITIONS OF AGREEMENT

NOW THEREFORE, for and in consideration of the premises, representations, warranties, covenants and agreements set forth herein and for other good and valuable consideration, Licensor and Licensee hereby agree as follows:

SECTION 1 -- DEFINITIONS

As used herein, in addition to the terms defined elsewhere in this Agreement, the following terms shall have the meaning set forth below:

1.1.“Change of Control” means the acquisition of at least fifty percent (50%) of voting power of a Party, through any transaction including, any reorganization, merger, consolidation or tender offer, except where such Party’s shareholders immediately prior to such transaction will, immediately thereafter, together hold at least fifty percent (50%) of the outstanding voting power of the surviving or acquiring entity. The foregoing notwithstanding, a Change of Control shall not include: (a) any initial public offering of Licensor; (b) any transfer of such voting power to an immediate family member of a stockholder of Licensor; or (c) any transfer of such voting power to any trust or similar entity established for the benefit of either (i) any stockholder of Licensor or (ii) an immediate family member of any stockholder of Licensor.

1.2.“Confidential Information”means all business or technical information of the disclosing Party that is not generally known to the public and that derives value from not being generally known, whether such information is disclosed to the receiving Party orally or in writing. Confidential Information may include any software, documentation, algorithm, device, compilation of information, method, technique or process. The Parties expressly acknowledge that this Agreement, the Software (in both source code and object code versions) and all Documentation provided to Licensee hereunder constitute Confidential Information of Licensor.

1.3.“Designated Operating System(s)” means the computer operating system and database software, if applicable, designated on the applicable Schedule.

1.4.“Documentation”means all operator and user manuals, education materials, guides, listings, specifications and other materials, including online information and materials, relating to the use of the Software delivered to Licensee hereunder.

1.5.“Enhancement” means any modification or addition to the Software that changes its utility, efficiency, functional capability, or application, but that does not constitute an Error Correction or New Module. Enhancements to the Software are included in the Maintenance and Support Services at no additional charge.

1.6.“Error” means any failure of the Software to conform to its Documentation in any material respect.

1.7.“Error Correction” means either a modification or addition that, when made or added to the Software, brings the Software into conformity with its Documentation in all material respects or a procedure or routine that, when observed in the regular operation of the Software, avoids the practical adverse effect of such nonconformity.

1.8.“License Fee” means the license fee specified in the applicable Schedule, payable by Licensee to Licensor upon

1.9.“Maintenance and Support Services” means any software maintenance and support services to be provided by Licensor with respect to the Software, as specified in the applicable Schedule.

1.10.“Maintenance Fee” has the meaning specified in Section 3.3(b).

1.11.“Maintenance Term” means the period of time for which Licensor is obligated to provide Maintenance and Support Services for the applicable Software, including the initial Maintenance Term and any renewal Maintenance Terms, as described in Section 3.3(a).

1.12.“New Module” means a new module related to the Software which contains business logic not offered or contained in the thencurrent version of the Software and is offered by Licensor as a separate option or feature and is priced separately. New Modules are not included in the Maintenance and Support Services and are subject to a separate charge.

1.13.“Parties” means Licensor and Licensee, collectively.

1.14.“Party” means Licensor or Licensee, individually.

1.15.“Person” means any individual, corporation, limited liability company, partnership, trust or other legal entity.

1.16.“Professional Services” means the installation, training, and/or programming services described in the applicable Schedule, which may be provided to Licensee by Licensor for implementation of the Software.

1.17.“Qualified Representatives”means the representatives of each Party that are identified in the applicable Schedule, and any other representative that a Party may designate by written notice to the other Party from time to time.

1.18.“Release” means a new version of the Software that includes Error Corrections and/or Enhancements.

1.19.“Schedule” means any addendum to this Agreement describing Software and any related Documentation, Professional Services and/or Maintenance and Support Services to be provided by Licensor to Licensee under this Agreement and any other terms and conditions specified therein, as may be agreed upon by the Parties from time to time during the term of this Agreement. Each Schedule to this Agreement shall be based on the template provided as Exhibit A hereto, but may include all or a subset of the sample of provisions specified therein or additional provisions not specified therein.

1.20.“Service Level Penalty” and “Service Level Penalties”are defined in Section 3.2(d).

1.21.“Site(s)” means the physical location(s) of the departments and/or agencies of Licensee specified in an applicable Schedule, if any.

1.22.“Software”means the computer programs and data in machinereadable form provided by Licensor to Licensee hereunder, as listed on the applicable Schedule, together with any Error Corrections, Enhancements or Release thereto furnished by Licensor in connection with the Maintenance and Support Services or otherwise.

1.23.“Source Code”means the human readable form of software, including written comments and programmer documentation, flow charts, logic diagrams, pseudo code, notations or other supporting writings, regardless of the media on which it is stored, and intended for translation into an executable or intermediate form, or is intended for direct execution through interpretation.

1.24.“Third Party” means any Person other than Licensor or Licensee.

SECTION 2 -- LICENSE OF SOFTWARE

2.1.Grant of License. In partial consideration for the License Fee, Licensorhereby grants to Licensee, and Licensee accepts from Licensor, subject to the terms and conditions of this Agreement, a worldwide, nonexclusive, nontransferable, site license to use the object code version of the Software and Documentation solely:

(a)during the term of this Agreement;

(b)on the Designated Operating System(s), if any;

(c)at sites owned or maintained by Licensee;

(d)for use on a single production server and a reasonable number of non-production servers; and

(e)for Licensee's own internal business operations, and not for processing the data of any Third Party (whether on an outsourcing, service bureau, or other basis, except in connection with the performance of Licensee’s regular business operations and not as a business itself), redistribution, remarketing or any other use.

2.2.Term of License. The term of this Agreement shall begin on the Effective Date and shall be effective for an initial period of three (3) years thereafter, unless earlier terminated in accordance with the provisions hereof. Upon expiration of the initial term, this Agreement may be renewed for consecutive three (3) year terms, provided that (a) this Agreement has not otherwise been terminated in accordance with the provisions hereof, and (b) neither Party has provided written notice to the other Party, at least sixty (60) days prior to expiration of the then-current term, of its desire to not this Agreement. Licensee's license to use any particular Software and Documentation shall begin on the date on which such Software and Documentation is first delivered to Licensee.

2.3.Additional Restrictions. Licensee’s use of the Software and Documentation is subject to the following additional restrictions:

(a)Licensee will not use the Software or Documentation for any purpose other than those expressly authorized under this Agreement.

(b)Except for any sublicenses granted to end-users who access and use the Software for its intended purpose, Licensee will not otherwise sublicense, transfer, or assign its license rights in the Software or Documentation to any Third Party.

(c)Licensee will not translate, reverse engineer, decompile or disassemble the Software to develop any other computer program or for any other reason. However, Licensee may customize the Software without making any changes to the code of the delivered Software.

(d)Licensee will not copy or duplicate by any means the Software, Documentation or any item included therein, without the prior written consent of Licensor, except to the extent reasonably necessary to maintain backup or historical Documentation or to test, implement, or use the Software. Licensee will cause all proprietary, confidential, copyright, trademark and/or patent notices, markings, or legends which appear on any item included in the Software and Documentation to be placed upon each such copy or duplication. The original and any copies of the Software and Documentation will at all times remain the sole property of Licensor.

(e)Licensee will maintain records identifying the location and identity of the Designated Operating System(s), or any replacement system, and any copies of the Software (including any backup or archival copies), which records will be subject to inspection by Licensor during regular business hours upon reasonable advance notice.

(f)Licensee may not modify the Software, whether through the services of its own employees or of independent contractors, without the prior consent of Licensor.

(g)In no event will Licensee export any Software or Documentation or use any Software or Documentation outside the United States without the prior written consent of Licensor, which will not be unreasonably withheld, provided Licensee has provided evidence of its compliance herewith. Licensee agrees to comply with all export laws, restrictions, national security controls and regulations of the United States or other applicable foreign agency or authority, at Licensee’s sole expense, and not to export or reexport, or allow the export or reexport, of the Software, Documentation or any of Licensor’s Confidential Information or any copy or direct product thereof in violation of any such restrictions, laws or regulations, or in violation of the embargo provisions of the U.S. Export Administration Regulations (or any successor regulations or supplement), except in compliance with, and with all licenses and approvals required under, applicable export laws and regulations, including without limitation, those of the U.S. Department of Commerce.

2.4.Licensee Responsibility. Licensee is solely responsible for:

(a)Obtaining any software or products required for use of the Software, includingany operating system software, database software, or thirdparty applications software.

(b)Licensee is responsible for conversion of any of Licensee’s existing data files for use with the Software. Unless otherwise specified on an applicable Schedule, Licensorwill not provide any data conversion services to Licensee.

2.5.Ownership of Software and Documentation. Error Corrections, Enhancements, Releases and any other programming provided by Licensor, regardless of its form or purpose, will be considered Software for purposes of this Agreement and will be subject to the rights and restrictions specified herein. Except as otherwise expressly set forth in this Agreement, Licensor retains all right, title and interest in and to all Software and Documentation, in all forms, and all copies and modifications of the thereof, including all worldwide rights to patents, copyrights, trademarks and trade secrets in or relating to the same. Licensee is not acquiring any right, title or interest of any nature whatsoever in any Software or Documentation except the license rights affirmatively stated herein. Unless otherwise agreed, Licensee agrees to return to Licensor or destroy, as requested by Licensor, superseded versions of any Software or Documentation.

SECTION 3 -- SOFTWARE MAINTENANCE AND SUPPORT SERVICES

3.1.Description of Services. Provided that Licensee has timely paid the applicable Maintenance Fee, Licensor shall provide the following services (the “Maintenance and Support Services”) with respect to the Software during the applicable Maintenance Term:

(a)Error Corrections. Licensor will keep the Software performing in conformity with the Documentation in all material respects and will correct verifiable and reproducible Errors related to the Software when reported to Licensor in accordance with Licensor’s “Technical Support Procedures,” which will be delivered to Licensee hereunder and which may be amended by Licensor from time to time. An Error Correction, when completed, may be provided in the form of a “temporary fix,” consisting of sufficient programming and instructions to implement the Error Correction.

(b)Incidence Based Support. Licensor shall maintain appropriate communication means (collectively, a “Help Desk”) for receiving support requests from Licensee regarding the use and operation of the Software and for addressing such requests in an efficient and timely manner. The Help Desk will initially be accessible by Licensee via telephone hot-line, email or instant messaging. Licensor will also develop an extranet site through which Licensee can access the Help Desk. Licensor will use commercially reasonable efforts to make such extranet site available by ______, ____, but shall have no liability hereunder for failure to achieve such target date. Help Desk operators will respond to problems based on priority levels specified in Section 3.2. The Help Desk will automatically track support requests and deliver notices thereof to Licensor’s subject matter experts. The Help Desk will also deliver submission receipts and completion confirmations to the Parties. Licensee will ensure that its appropriate technical support staff will make a good faith attempt to address service inquiries prior to contacting the Help Desk. To that end, Licensee’s technical support staff should use all reasonable efforts to insure that a problem is not hardware related before contacting the Help Desk. A problem that is found to be hardware related shall not trigger any Service Level Penalties and may trigger Professional Services charges by Licensor once reviewed and acknowledged by Licensee.

(c)New Releases. Licensor may, from time to time during the Maintenance term, issue to Licensee new Releases, containing Error Corrections and/or Enhancements. Licensor will provide Licensee with one (1) copy of each new Release for each copy of the applicable Software licensed to Licensee hereunder, without additional charge. Licensor will provide reasonable telephone assistance to help Licensee install and operate each new Release of the Software, as applicable. Because Releases are cumulative, a Release may be useful only if Licensee has obtained and installed all prior applicable Releases.

(d)Compatibility Modifications. Licensor will provide to Licensee modifications to the Software necessary to maintain the Software current with updates and releases of the Designated Operating System and related utility software.

(e)Performance Reports. Licensor shall provide monthly project performance reports to Licensee in a form agreed upon by the Parties for the first twelve (12) months of the Maintenance Term. At a minimum, the reports will list date, time, and nature of all support requests submitted by Licensee to the Help Desk, the reason for the incident or failure of performance for support request, and the resolution of any such incident or failure of performance. Licensee will in good faith determine whether monthly reports or quarterly reports are needed after the first twelve months of the Maintenance Term. Reports will be made available to Licensee no later than ten (10) working days after the close of a calendar month.

3.2.Service Levels. Licensor agrees that the Maintenance and Support Services will meet or exceed each of the following service levels (the “Service Levels”) from the implementation date and thereafter during the Maintenance Term, subject to the limitations set forth in the Agreement:

(a)Help Desk Schedule. Licensor will maintain the Help Desk with the following availability schedule:

(b)Help Desk Response. The Help Desk will respond to support requests from Licensee based on priority level, as follows:

Description

• Response within 15 minutes of support request.
• Licensor will work continuously, 24 hours a day, until the issue is resolved.
• Account management is notified of issue within the first hour of confirming issue.
• Follow-up calls made every 2 hours by account management until issue is resolved (or as necessary and/or mutually agreed upon at the time of notification).

• Response within 1 hour of support request.
• Licensor will make its best effort to resolve these issues within 1 business day.
• Issue is escalated to account management within 4 hours.
• Account management will update Licensee on status once per day.

• Response within 1 business day of support request.
• Licensor will make its best effort to resolve these issues within 5 business days.

• Account management will update Licensee on status once every week.

• Response within 1 business day of support request.
• Licensor will make its best effort to resolve these issues within 15 business days.

• Response within 1 business day of support request.
• No guaranteed timeframe, incorporated into next software release version.

(c)Service Level Failures. Within ten (10) days after receipt of a written notice from Licensee alleging Licensor’s failure to provide the Maintenance and Support Services or Licensor’s repeated failure to provide the Maintenance and Support Services in accordance with “Priority 1” Service Levels as described above, Licensor shall (a) perform a root-cause analysis to identify the cause of such failure, (b) correct such failure, (c) provide Licensee with a written report detailing the cause of, and procedure for correcting, such failure, and (d) provide Licensee with reasonable assurance that such failure will no reoccur.