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RISKTUTOR SOFTWARE LICENSE AGREEMENT
This SOFTWARE LICENSE AGREEMENT (the "Agreement") is between RiskTutor, Inc., a California corporation, ("RTI") with its principal place of business at 3412 Malaga Court, Calabasas, California 91302, and _________________________________________, with its principal place of business at_______________________________________________________________________ (the "Licensee") and shall be effective ____________________ (the Effective Date). All exhibits and attachments to which reference is made in this Agreement are fully incorporated in and made a part of the Agreement by such reference.
WITNESSETH:
WHEREAS, RTI has developed, compiled and markets, an on-line insurability assessment information software system (the "Software System") accessible to licensed users through the Internet;
WHEREAS, Licensee desires to acquire from RTI a non-exclusive license to utilize the RTI Software System; and
WHEREAS, RTI is willing to grant Licensee a non-exclusive license to utilize the Software System;
NOW, THEREFORE, in consideration of the premises, and other good and valuable consideration received and to be received, RTI and Licensee agree as follows:
ARTICLE 1. Agreement, Term and Definition of Terms
1.1 Agreement and Term. The parties agree that the terms and conditions of this Agreement apply to the license of the Software System by RTI to Licensee. The term of this Agreement commences on the Effective Date and the Agreement shall continue to be in effect until terminated by Licensee or RTI as set forth in this Agreement.
1.2 Definitions. The following definitions apply to this Agreement:
1.2(a) Software System The term "Software System" shall mean the Licensed Software and the Documentation.
1.2(b) Licensed Software The "Licensed Software" shall consist of the proprietary insurability assessment software. The definition of "Licensed Software" also includes any Enhancements, Modifications or other changes to the Licensed Software which are provided pursuant to this Agreement. The Licensed Software is available to the Licensee through the Internet at a specified website.
1.2(c) Documentation The "Documentation" shall consist of user instructions, and other materials supplied by RTI in effect as of the date the Licensed Software is shipped or accessed for actual use in connection with the Licensed Software.
1.2(d) Modification The term "Modification" shall mean a program or portion thereof that corrects errors that existed in the previous version of the software which changes the way the previous version is represented.
1.2(e) Enhancement The term "Enhancement" shall mean a program or a portion thereof that by change or Modification adds functional capabilities to a previous version of the Software or is not otherwise a Modification.
1.2(f) Derivative Work The term "Derivative Work" shall mean a work that is based on one or more preexisting works, such as a revision, alteration, translation, abridgement, condensation, expansion or any other form in which such preexisting work may be recast, transformed or adapted, and which, if prepared without authorization by the owner of the preexisting work, would constitute a copyright infringement, if copyrighted.
1.2(g) Licensed Site The term "Licensed Site" shall mean all personal computers, its servers and mini computers (including network systems) with the same operating system platform at a single location or at different locations which are connected by a single network system.
1.2(h) Network System A "Network System" shall mean any combination of twoor more terminals that are electronically linked and capable of sharing the use of a single software product.
1.2(i) Delivery Date The term "Delivery Date" shall mean the date on which the Software System is delivered to or received by Licensee as provided in this Agreement.
ARTICLE 2. License Grant and Use of License Software
2.1 Grant of License. Subject to the terms and conditions of this Agreement, RTI grants to Licensee a non-exclusive, non-transferable, limited license to use the Software System at its Licensed Site (the "License").
2.2 Authorized Use. The License granted by this Agreement authorizes Licensee to (a) use the Software System for its internal purposes only; (b) utilize the documentation in connection with Licensee's use of the Software System; (c) use the Software System in connection with Enhancements or Modifications to the System, or Derivative Works made or affected by the Licensee; and (d) temporarily use the Software System and documentation in connection with a third party other than Licensee whenever Licensee's ability to utilize the Software System is temporarily interrupted, but only until Licensee's normal operations are resumed.
2.3 Limitations on Authorized Use. Except as provided herein, the License granted by this Agreement for use of the Software System by Licensee shall be for the Licensee's use in providing insurance-related services and shall not be assigned, sublicensed, or otherwise conveyed or transferred by Licensee to any other person, firm or organization. Licensee may not loan, lease, distribute or transfer the Software System or copies thereof to third parties, nor reverse engineer or otherwise attempt to discern the source code of the Licensed Software. Licensee agrees to notify its employees and agents who may have access to the Software System of the restrictions contained in this Agreement and to ensure their compliance with such restrictions. Licensee shall have no right to sell, market or transfer the License granted hereunder, the Software System or any component thereof to any party, except as authorized by this Agreement, without the express written consent of RTI.
2.4 Title. Title to the Software System is not transferred to Licensee. Ownership of the Software System, Licensed Software andcopies made by Licensee is vested in RTI, subject to the rights granted to Licensee in this Agreement. The parties hereto acknowledge that the Licensed Software, Software System and all components thereof, including but not limited to the Licensed Software and the Documentation, are covered by a copyright registered with the United States government. Neither the Licensee nor any other person shall have the right to copy the Licensed Software, Software System or any component thereof, except as authorized in this Agreement.
2.5 License Term. The License granted by RTI to Licensee under this Agreement shall remain in full force and effect for a period of one (1) year commencing on the Effective Date of this Agreement. Thereafter, this Agreement shall renew and extend automatically for successive one (1) year terms unless either party shall give the other more than sixty (60) days' written notice of termination by certified mail/return receipt requested, prior to the expiration of the then current term.
ARTICLE 3. Default
3.1 Default. A Default under this Agreement shall result upon the occurrence of any of the following described events which are not cured within three (3) days after notice by RTI to Licensee:
(a) Material unauthorized copying, disclosure, use, license, sublicense, lease, sublease, assignment, sale, transfer or gift of the Licensed Software, Software System or any component thereof to a third party by Licensee, directly or indirectly, except asauthorized elsewhere in this Agreement; or (b) the filing of a bankruptcy or other insolvency proceeding by Licensee; or (c) the cessation of business that is currently being conducted by Licensee; or (d) failure to pay license fees per this Agreement; or (e) material breach of any term of this Agreement by either party.
3.2 Effect of Default. In the event of a Default under Section 3.1, which Default is not cured within the three-day notice period, the License granted hereunder shall terminate. In the event of such termination, Licensee shall pay RTI the balance of any payments owing or to become due to RTI from Licensee. Furthermore, Licensee shall return all copies of the Licensed Software or Documentation to RTI, together with any Modification or Enhancements thereon made by RTI and to certify to RTI, in writing, that all Software, Software System information or Documentation has either been returned to RTI or eradicated from the Licensed Site.
ARTICLE 4. Warranties by RTI
4.1 Warranty. Except asotherwise provided in this Agreement, RTI warrants that the Licensed Software, Software System and any components or portions thereof shall perform the functions described in the Documentation in accordance with the specifications for the Licensed Software contained therein. RTI warrants that Licensee's use and possession of the Software System will be uninterrupted and undisturbed and that no portion of the Licensed Software or Software System is intentionally designed or constructed with the ability todamage, interfere or otherwise adversely affect Licensee's hardware, data files or other software.
(a) Licensee acknowledges that the performance of the Software and Software System may vary with various manufacturers' equipment with which it is used. Accordingly, RTI does not warrant the level of performance of the Software, Software System, Enhancements or Modifications thereto when used with any specific equipment by Licensee.
4.2 Disclaimer. RTI does not warrant that the Software, Software System,servicer, information or data or the functions contained therein will meet Licensee's requirements, operate without interruption or be error free. EXCEPT AS EXPRESSLY STATED HEREIN, THE LICENSED SOFTWARE, SOFTWARE SYSTEM AND RELATED DOCUMENTATION IS PROVIDED "AS IS" WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSEE BEARS ALL RISK RELATING TO QUALITY AND PERFORMANCE OF THE LICENSED SOFTWARE, SOFTWARE SYSTEM AND RELATED DOCUMENTATION.
(a) RTI makes no warranty, representation or guarantee as to the content, sequence, accuracy, timeliness or completeness of the Licensed Software or that the Licensed Software may be relied upon for any reason.
(b) RTI makes no warranty, representation or guaranty as to the content, sequence, accuracy, timeliness or completeness of the medical information provided by the Software System and specifically disclaims RTI has any medical training or the intent, whether actual or implied, to engage in the practice of medicine.
4.3 Ownership and Patent Rights. RTI represents and warrants that the Licensed Software and Software System does not infringe upon any United States or foreign copyright or patent, or any proprietary interest of any person, firm or organization, or any other rights of any third party. RTI further warrants that it has the right, power and authority to enter into this Agreement.
ARTICLE 5. Limitations of Liability
5.1 Limitation of Damages. RTI shall not be liable to Licensee for damages for breach of any of the terms and conditions of this Agreement in any amount in excess of the total amount of the consideration paid to RTI by Licensee pursuant to this Agreement.
5.2 Limitation of Liability. IN NO EVENT WILL RTI BE LIABLE FOR ANY LOST PROFITS OR OTHER DAMAGES, INCLUDING DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR ANY OTHER TYPE OF DAMAGES, ARISING OUT OF THIS AGREEMENT FOR THE USE OF THE LICENSED SOFTWARE OR SOFTWARE SYSTEM LICENSED HEREUNDER, EVEN IF RTI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.3 Sites Linked. The sites linked from the Licensed Software are not under RTI'S control, and RTI does not assume any responsibility or liability for any communications or materials available at such linked sites. RTI does not intend links in the Licensed Software to be referrals or endorsements of the linked entities, and are provided for convenience only.
ARTICLE 6. Fees
6.1 As consideration for the License granted under this Agreement, Licensee agrees to pay to RTI the fees set forth on the RiskTutor Order Form.
ARTICLE 7. Proprietary Information
7.1 Licensee acknowledges that the Licensed Software and Software System are a commercially valuable proprietary product of RTI which offers RTI a commercial advantage over its competitors. The loss of this competitive commercial advantage due to an unauthorized disclosure, use, license, sublicense, lease or sublease, sale, transfer or gift would cause irreparable injury and harm to RTI. Licensee further acknowledges that the Licensed Software and Software System including, but not limited to, the design, programming techniques and documentation thereof, constitutes a trade secret which is disclosed to Licensee for use on the basis of a confidential relationship between Licensee and RTI under this Agreement. Licensee agrees it will not, without the prior written consent of RTI, disclose to others or employ to its own advantage, except as otherwise permitted by this Agreement, the Licensed Software, Software System or any information relating to such Software or Software System. The obligations of Licensee under this paragraph shall continue in full force and effect as long as any portion of the Software or Software System is a trade secret of RTI and not in the public domain.
7.2 Copyright. Licensee agrees not to remove, deface, or destroy any copyright, patent notice,trademark, service mark or other proprietary markings or confidential legends placed on or within the Licensed Software, Software System or any Modification or Enhancements to the Licensed Software, Software System or related documentation.
ARTICLE 8. Technical Support
8.1 Technical Support. RTI shall provide on-line technical support via a dedicated E-mail address to Licensees at rtutor1@ix.netcom.com. RTI shall also provide Licensees telephone technical support at (818) 591-3882.
ARTICLE 9. Dispute Resolution
9.1 Arbitration. Any controversy or claim arising out of, or relating to, this Agreement, for the making, performance or interpretation of it, shall be settled by binding arbitration in Los Angeles, California, under the Commercial ArbitrationRules of the American Arbitration Association then existing, and judgment on the arbitration award may be entered in any court having jurisdiction over the subject matter of the controversy. The arbitrators selected pursuant to this paragraph shall be persons experienced in negotiating and making software licensing agreements.
9.2 Attorney's Fees. Should any mediation, arbitration or litigation be commenced between the parties to this Agreement, the party prevailing in such proceedings shall be entitled,in addition to such other relief as may be granted, its actual attorneys' fees or other reasonable sum which shall be determined in such mediation, arbitration or by the court in such litigation.
ARTICLE 10. Miscellaneous Provisions
10.1 Entire Agreement. This Agreement, together with the exhibits incorporated into it by reference, contains the entire and integrated agreement between the parties relating to the subject matter hereof and supersedes all prior negotiations, representations or understandings, either written or oral. The parties acknowledge that the other has not made, nor has any agent or attorney of either party made, any promise, representation or warrant, express or implied, not contained in this Agreement, to induce the other to executethis Agreement.
10.2 Waiver. No waiver of any breach of any of the provisions of this Agreement shall constitute a waiver of any prior, current or subsequent breach of the same or any other provision, nor shall any waiver constitute a continuing waiver.Failure of a party to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce such provision.
10.3 Notices. All notices required to be given hereunder shall be given in writing, either by personal delivery or prepaid first class U.S. Mail and addressed as follows:
RTI: RiskTutor, Inc.
Attention: David Solie
3412 Malaga Court
Calabasas, CA 91302
Licensee: To the "principal place of business" first listed above
10.4 Binding Effect. This Agreement shall be binding on and shall enure to the benefit of the parties to this Agreement and to their successors, representatives and assigns.
10.5 Amendment. Any amendment to this Agreement shall not be binding on either party unless such amendment is in writing and signed by the party to be charged.
10.6 Governing Law. Regardless of the place of contracting, performance or otherwise, this Agreement shall beinterpreted, construed and enforced in accordance with the laws of the State of California, including the laws governing the choice of law. Any suit brought hereon shall be brought in state or federal court in Los Angeles County, California.
10.7 Headings. The captions and clause headings in this Agreement are for convenience only and shall be disregarded when construing this Agreement.
10.8 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which when taken together shall constitute one and the same document.
DATED: __________________________RiskTutor, Inc._________________________________
A California Corporation
By ___________________________________________ _______________________________________________________________________________
Its ___________________________________________ _______________________________________________________________________________
DATED: __________________________"Licensee"_____________________________________
By ___________________________________________ _______________________________________________________________________________
Its ___________________________________________ _______________________________________________________________________________ |
