Exclusive Computer Software Lease with License Agreement

Agreement made on the _____ day of ______________________________, 20____, (the effective date), between _________________________________________ (Owner/Licensor of Software) of ___________________________________________________________________ ______________________________________________________________________________ _______________________________ (street address, city, county, state, zip code), referred to herein as Lessor, and _____________________________________ (Name of Lessee/Licensee), a corporation organized and existing under the laws of the State of _______________________, with its principal office located at __________________________________________________ ______________________________________________________________________________ ________________________________ (street address, city, county, state, zip code), referred to herein as Customer. Whereas, Lessor owns a proprietary computer software system known as ____________________________________________________________ (Name of Software), (the Software). Whereas, Customer desires to lease and to use the Software and Lessor desires to make the Software available to Customer in accordance with the terms and conditions set forth in this Agreement. For and in consideration of Ten Dollars ($10.00), and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: I.

Grant of License and Lease A. Lessor grants Customer a nontransferable, exclusive, limited license and lease to use the Software which is described in Exhibit A, attached to and made a part of this agreement, subject to the conditions of this Agreement. B. Legal title to the Software and Software documentation provided under this Agreement shall remain in Lessor as its sole property subject to Customer's rights specified in this Agreement.

II.

Use of System A. The Parties agree that the Software is proprietary to Lessor. Customer agrees that the Software and all related data, whether oral or written, and furnished under this Agreement constitute a valuable asset and trade secret of Lessor and are provided for Customer's exclusive use for the purposes of this Agreement and will be held in confidence.

B. Customer agrees not to duplicate or disclose any information provided relative to the Software in whole or in part, or for the use of others, and to protect such information in the same fashion as it protects its own proprietary or confidential information. Customer will not remove any designation mark from any supplied materials that identifies such materials as belonging to or developed by Lessor. C. Customer will use the Software only for its (describe purpose) _______________ ________________________________________________________________________ ____________________________________________________________________ and will not use the Software in any manner for or by a third party. In no event shall Customer use the Software in a third-party computer services bureau or time sharing operation. III.

Term A. The term of this lease is a (e.g., three -year) ________________________ period commencing on the effective date and continuing for successive (e.g., one-year) ______________________________ periods subject to the following Paragraph B, and the other terms and conditions as set forth in this Agreement, unless terminated in accordance with the provisions of Section X. B. To renew this lease for a successive (e.g., one-year) _______________________ period, Customer shall: (describe how lease can be renewed such as timing of notice) ________________________________________________________________________ ________________________________________________________________________ _______________________________________________________________________.

IV.

Time and Place of Installation and Acceptance A. Lessor shall deliver the Software at the address set forth in Paragraph D of this section, on the __________________________________ (date). B. Lessor shall install the Software at the address set forth in Paragraph D, on the ______________________________________ (date). C. The Software shall be deemed accepted by Customer on successful completion of Software checkout by Lessor at the time of installation. Such checkout may be witnessed by Customer. D. • • • •

The Software will be installed solely on one computer as follows: Brand Name: _________________________________________ Model No.: ___________________________________________ Serial No.: ____________________________________________ Location: _________________________________________________________ __________________________________________________________________ _____________________________ (street address, city, county, state, zip code)

E. Customer may transfer the Software to another computer system or move the computer system specified above to another physical location provided prior written approval is obtained from Lessor. Such approval shall not be unreasonably withheld by Lessor. F. If Customer or its affiliated companies lease or purchase a larger _____________ ______________________________________ (brand name)(BN) model that is part of the BN family and compatible with it, Lessor, at no additional cost, will supply the software enhancements or changes necessary to enable the Software to function normally, provided Customer (a) has obtained software maintenance coverage from Lessor; and (b) pays Lessor the difference between the sale price of the replaced software and the thencurrent price for an upgraded software package for the larger BN model. V.

Terms of Payment A. Customer shall pay Lessor _______% of the Software price at the signing of the purchase order. The balance will be paid in accordance with the Payment Schedule attached hereto as Exhibit B and made a part of this Agreement. B. Unless otherwise stated, all prices are exclusive of state and local use, sale, and similar taxes. Any applicable taxes will be paid by Customer, which taxes will appear as separate additional items on Lessor's invoices unless Customer provides Lessor with a valid tax exemption certificate acceptable to the taxing authorities. C. All payments shall be due within _____days after receipt of Lessor's invoice. Any payment received after its due date shall bear an interest rate of _____% per month, or the legal limit, whichever is less, for each month or fraction of a month beyond the payment due date. D. The Software shall be promptly returned to Lessor if the required fees are not paid in full. VI.

Warranty A. Lessor warrants that the Software at the time of installation will perform in accordance with the current user's manual. B.

Lessor's liability is limited as follows: 1. Over a period of ______ months after installation of the Software, Lessor, at its expense, will correct any errors in the Software attributable solely to Lessor. 2.

Lessor shall be relieved of any and all obligations with respect to Paragraph A of this Section for any portions of the Software that are revised, changed, modified, or maintained by anyone other than Lessor.

Customer may modify the Software, but Lessor shall not be responsible for compatibility of such modified Software with equipment, other equipment, other programs, future program releases or test and verification routines, or engineering change orders. C. Lessor warrants that the Software will function on all supported models of the (specify types of computers) ________________________________________________ _______________________________________________________________________, including new models that are delivered by the manufacturer and completely compatible with it, provided, however, that Customer has elected Software maintenance pursuant to Section VIII and complied with Section IV. D. Lessor shall indemnify and hold customer harmless from any liability suffered by Customer arising out of any defects in the rights of Lessor to the Software at the time of delivery, provided that, if any such claim is asserted against Customer, Lessor shall be notified of the same by Customer within _____ days of receipt by Customer of knowledge of such asserted claim, and Lessor consequently shall be given the right and option to conduct and bear the cost of any defense against such claim up to the amounts paid by Customer. E.

LESSOR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

VII.

Limitation of Liability

EXCEPT AS PROVIDED IN SECTION SIX, CUSTOMER AGREES THE MAXIMUM LIABILITY ASSUMED BY LESSOR UNDER THIS AGREEMENT, REGARDLESS OF THE CLAIM OR THE FORM OF ACTION OR SUIT, WHETHER IN CONTRACT, NEGLIGENCE, OR TORT, SHALL BE LIMITED TO CORRECTION OR REPLACEMENT COSTS, OR $____________, WHICHEVER IS LESS. IN NO EVENT SHALL LESSOR BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, EVEN IF LESSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER AGREES TO INDEMNIFY OR OTHERWISE HOLD LESSOR HARMLESS FROM ALL CLAIMS OF THIRD PARTIES THAT MAY ARISE FROM CUSTOMER'S USE OF THE ITEMS DELIVERED UNDER THIS AGREEMENT. CUSTOMER'S REMEDIES IN THIS AGREEMENT ARE EXCLUSIVE.

VIII. Optional Software Maintenance Service Customer shall have the option to obtain Software maintenance services on an annual basis from Lessor, on payment of the fee described in the then-current Lessor price list, which service: A.

Becomes effective on the date of Software acceptance as defined in Section IV;

B.

Provides Customer the same warranties set forth in Section VI;

C. Includes automatic updates of all corrections developed or implemented by Lessor to modules of the software provided during the annual term of each maintenance agreement;

D. Includes reasonable telephone consulting (up to _____ hours per month) and manual updates for _____ sets of user manuals. Telephone consulting over the minimum will be billed at Lessor's then-current standard time and material rates; E. Maintenance agreement must be renewed annually to maintain continuity of corrections. If maintenance is allowed to lapse, the renewal, if desired by Customer, must be paid for the lapsed period forward. IX.

Termination A. Customer may terminate this lease by providing written notice of termination _____ days prior to the expiration of the initial one-year term or any successive one-year period extension. B. On termination of this agreement, Customer shall promptly return all of Lessor’s proprietary data, and shall erase from all computer storage and computer storage devices any image or copies of the software.

X.

Default A. Either party has the right to terminate this Agreement and any license granted on written notice to the other party if such other party (i) materially fails to perform any of its obligations under this Agreement, which failure has not been corrected within _____ days after receipt of written notice of the failure; or (ii) takes action to liquidate and dissolve, becomes insolvent, suffers an appointment of a receiver, assigns all or part of its assets for the benefit of creditors, or is involved in any proceeding (voluntary or involuntary) under any bankruptcy or insolvency laws. B. On any such termination by Lessor, Customer agrees to return immediately to Lessor all software programs, related documentation, and all copies of such programs and documentation in the possession of Customer or any of Customer's agents or other parties to whom Customer may have provided such copies, in the form provided by Lessor or as modified by Customer and to make no further use of the software. C. Any termination under this Section shall not affect either party's ability to pursue any other remedy existing at law or in equity for such default.

XII.

Technological Advances A. Customer agrees that Lessor shall have the right to free and unencumbered use, sale, or license of any technological advancements developed or acquired by Lessor in the performance of any services rendered by Lessor to the Customer in connection with this Agreement. B. Lessor agrees that Customer will have an unencumbered right to use improvements made on the software when fully paid by Customer within the Customer's

corporate structure. Charges for Lessor support of such improvements, if any, will be negotiated on a case-by-case basis. XII.

Governing Law This agreement shall be construed and the legal relation between the parties determined in accordance with the laws of the State of ______________________________. XIII. Waiver The waiver, modification, or failure to insist by Lessor on any conditions shall not void, waive, or modify any of the other terms or conditions nor be construed as a waiver or relinquishment of Lessor's right to performance of any such term or terms. XIV. Assignment This Agreement shall be binding on and shall inure solely to the benefit of the parties and their respective successors, and permitted assignees, and not for the benefit of any other person or legal entity. Customer, however, shall not assign this agreement or any rights or obligations under the agreement without first obtaining the prior written consent of Lessor. Such consent shall not be unreasonably withheld. XV.

Relationship of Parties Each party is an independent contractor and not an agent or partner of, or joint venturer with, the other party for any purpose, and neither party by virtue of this Agreement shall have any right, power, or authority to act or create any obligation, expressed or implied, on behalf of the other party. XVI. Delays Neither party shall be liable or deemed in default for any delay or failure in performance of this Agreement resulting directly or indirectly from any cause completely, solely, and exclusively beyond the control of that party. XVII. Entire Agreement The parties acknowledge that this agreement has been read and understood, represents the entire agreement and understanding of the parties, and supersedes all prior agreements, communications, or understandings, whether oral or written. XVIII. Notices All notices required by or related to this Agreement shall be in writing and sent to the parties at the following addresses by any means that will require a written acknowledgment of receipt by the receiving party: If to Lessor: _____________________________________________________________ ______________________________________________________________________________ ________________________________________ (street address, city, county, state, zip code). If to Customer: ___________________________________________________________ ______________________________________________________________________________ ________________________________________ (street address, city, county, state, zip code).

XI.

Mandatory Arbitration Any dispute under this Agreement shall be required to be resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect. WITNESS our signatures as of the day and date first above stated.

____________________________________ Customer _______________________________________ Lessor

By: ________________________________ ____________________________________ (Name and Office in Corporation)

(Attach Exhibits)