Software License Agreement

July 2002

 

 

This AGREEMENT is by and between Kingham Software Inc.. (hereinafter referred to as "Company") and the Win!Factor Customer (hereinafter referred to as "Customer.")

WHEREAS, Company is a developer of computer software including a product known as "Win!Factor ;" and

WHEREAS, Customer desires to license the Software.

NOW, THEREFORE, for good and valuable consideration, the parties agree as follows:

 

1. DESCRIPTION OF THE SOFTWARE

Win!Factor will be used to collect, store, retrieve and manage information regarding the clients of Customer. All references in this Agreement to the "Software" means Win!Factor , as modified for Customer. It does not include any other software (such as Microsoft Word) or any other operating systems.

2. COST OF SOFTWARE

    1. The cost of the Win!Factor Software as outlined in this Agreement is $_500.00 per year_ for a nonexclusive, nontransferable  ( 1 )  user runtime license. Additional user licenses can be purchased for $100.00 per year per user for the first two (2) years after the date of this Agreement.  Once the lease is expired and the Customer has not paid for another year, the software will stop functioning.
    2. The cost includes free technical support by phone for the first 30 days of a new lease.  After that support is restricted to 5 incidents per year via email.  Additional support and training will be billed out at $120 per hour with a minimum billing increment of 15 minutes.
    3. All custom programming will be charged at the then current hourly rate. Such rate will not exceed $120 for the first two (2) years after the date of this Agreement.
    4. All licenses and other fees payable by Customer under this Agreement are net of applicable taxes. Customer is solely responsible for any taxes or assessed fees which are or may become due by reason of this Agreement.
    5. The Company reserves the right to increase the annual lease price by no more than 10% per year.

3. SOFTWARE LICENSE

    1. The Software is licensed to Customer, not sold. The Software is for Customer's internal use only. Ownership of the Software remains with Company.
    2. Customer has the following rights under the Software license:

1.        Software: Customer may install and use the number of runtime versions of the Software as set forth in Section 3A.

2.        Storage/Network Use: Customer may also store or install a copy of the Software on a storage device, such as a network server, to install or run the Software on other computers over the network as long as the total number of users do not exceed the runtime licenses purchased by Customer.

    1. Description of other rights or limitations:

1.        Limitations on reverse engineering, decompilation, and disassembly: Customer may not reverse engineer, decompile, disassemble, or otherwise reduce the Software to human-perceivable form unless such activity is expressly permitted by applicable law notwithstanding this limitation.

2.        Separation of components: The Software is licensed as a single product. Its components may not be separated.

3.        Transfer: Customer may not loan, rent, lease, assign or otherwise transfer the Software. The license is not transferable.

4.        Termination: If Customer fails to comply with the terms and conditions of these license provisions, Company may terminate Customer’s license after fourteen (14) days written notice to Customer. In such event, Customer must destroy all copies of the Software and all of its component parts.

5.        Copying Software: Customer may make one copy of the Software solely for backup or archival purposes.

    1. Upgrades: When the Software is upgraded by Company, Customer may use the upgraded Software only in accordance with the licensing provisions.
    2. Company rights to safeguard against unlicensed use: Company may use any means it deems appropriate to protect the Software from unauthorized use. This may include, but is not limited to, software copy protection schemes, encryption, hardware key protection and execution control schemes.
    3. Term of license: This license shall continue for as long as Customer uses the Software. However, if Customer fails to comply with the terms and conditions of the license, the license may be terminated as provided in Section 4C Part 4, and Customer agrees to destroy all copies of the Software. The limitations of warranties and liabilities as set out below shall continue in force even after termination of the license.

5. SUPPORT OF SOFTWARE

    1. Company’s support obligation is limited to the functionality of the Software. Customer can receive technical support by telephoning a Winter Haven, FL phone number between the hours of 9:00 AM and 5:00 PM (Eastern Time). Technical support representatives will help Customer resolve any technical support issues involving the Software by telephone instructions, fax instructions, demonstrations via modem or at Customer's office site. The method for providing technical support assistance will be solely at the discretion of Company.
    2. Customer agrees to promptly report any errors in the Software to Company.
    3. Company will not be responsible for:

1.        Installation, maintenance, support, repair or training regarding any computer hardware.

2.        Installation, maintenance, support, repair or training regarding the computer network.

3.        Installation, maintenance, support, repair or training regarding the computer operating systems.

4.        Any data entry, including entry of test data.

5.        Installation, maintenance, support, repair or training regarding any software, other than Win!Factor , on Customer's computers, including, but not limited to: Microsoft Word, Microsoft Excel, Microsoft PowerPoint, Word Perfect, or PC Anywhere.

6. UPGRADING OF SOFTWARE

    1. Customer will receive Software upgrades at least once a year as long as Customer has paid for this service as outlined in Section 3.
    2. "Software upgrade" includes all revisions and enhancements of the modules described in Section 1 of this Agreement, plus all revisions and enhancements of any additional modules which Customer purchases subsequent to the execution of this Agreement.
    3. "Software upgrade" also includes updating of public contacts in the Contacts Module.
    4. The purchase of technical support and upgrades does not entitle Customer to receive any licenses or other rights to additional Win!Factor modules developed subsequent to the date of this Agreement. Any such newly-developed modules will be made available for separate purchase by Customer.
    5. "Software upgrade" is limited to those revisions and enhancements generally provided for all users of the Win!Factor Software. Modifications or enhancements specific to Customer are considered customization work, and shall be charged at the custom programming rate then in existence.
    6. Future upgrades to the Software may require Customer to upgrade its computer hardware, operating systems or other software to be used in conjunction with the Customer’s Software.

7. PROPRIETARY RIGHTS AND CONFIDENTIAL INFORMATION

    1. The ownership of the Software shall remain with Company. Company retains all ownership rights, including source code, and Customer has no interest therein except to runtime licenses purchased by this Agreement.
    2. The parties anticipate that Customer will provide confidential information relating to its specific processes in order for Company to perform under this Agreement. Company agrees to keep Customer’s confidential information confidential and not to disclose or use Customer's confidential information in any way adverse to Customer.
    3. The parties anticipate that Company will provide confidential information relating to its specific processes and systems in order for Customer to perform under this Agreement and to benefit from or use the Software. Customer agrees to keep Company’s confidential information confidential and not to disclose or use Company's information in any way adverse to Company.

8. WARRANTIES, DISCLAIMERS AND INDEMNITY

    1. THIS SOFTWARE AND ANY MANUALS OR OTHER DOCUMENTATION IS SOLD "AS IS." TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, FOR THE WIN!FACTOR SOFTWARE AND COMPANY SERVICES AND PRODUCTS LICENSED UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL OBLIGATIONS OR LIABILITIES ON THE PART OF COMPANY FOR DAMAGES, INCLUDING, BUT NOT LIMITED TO, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF, OR IN CONNECTION WITH, THE DELIVERY, USE, OR PERFORMANCE OF THE SOFTWARE AND/OR SYSTEM.
    2. THE CONTACT INFORMATION PROVIDED IN THE SOFTWARE WAS DERIVED FROM OTHER SOURCES AND IS PROVIDED FOR THE CONVENIENCE OF CUSTOMER. COMPANY HAS ATTEMPTED TO INCLUDE CONTACT INFORMATION WHICH ACCURATELY MIRRORS THE DATA RECEIVED FROM PUBLIC AND REGULATORY AGENCIES, BUT COMPANY HAS MADE NO ATTEMPT TO VERIFY THE ACCURACY OF THE DATA. COMPANY MAKES NO WARRANTY OF ANY KIND REGARDING THE ACCURACY OF THE CONTACT INFORMATION PROVIDED.
    3. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC, LIMITED RIGHTS. YOU MAY HAVE RIGHTS THAT VARY FROM STATE TO STATE. FURTHER, SOME STATES DO NOT ALLOW THE EXCLUSION OF LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

9. LIMITATION OF DAMAGES

    1. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR DAMAGES IN EXCESS OF AMOUNTS PAID WITH RESPECT TO THE GOODS AND SERVICES AND SOFTWARE TO BE PROVIDED UNDER THIS AGREEMENT.

10. COPYRIGHT

    1. The Software is protected by copyright laws, as well as other intellectual property laws.
    2. All title and copyrights in and to the Kingham Software Inc. including but not limited to images, photographs, animations, video, audio, music, text, and "applets" incorporated into the Software, the accompanying printed materials, and any copies of the Software, are owned by Company.
    3. Neither the Software nor its documentation may be copied, photocopied, reproduced, translated, or reduced to any electronic medium or machine readable form, in whole or in part, without prior written consent of Company.

11. TRADEMARKS

    1. Microsoft is a registered trademark of Microsoft Corporation. Win!Factor is a trademark of Company. Other product names used herein are for identification purposes only and may be trademarks of their respective companies.

12. ARBITRATION

    1. If any dispute arises under this Agreement, the parties agree that a good-faith attempt to resolve the dispute shall be made by presenting the position of the parties to the President of Company and the Management of Customer at a meeting at a neutral site.
    2. If no such meeting can be arranged within two (2) weeks from the request for such meeting, or if the named persons are unable to reach Agreement within one (1) week after such meeting, the parties agree that the dispute shall be resolved by binding arbitration by a three person arbitration panel in Polk County, Florida under the rules of the American Arbitration Association, and that the award shall be enforceable under any court having jurisdiction thereof.

13. TERMINATION OF AGREEMENT

    1. Except as provided in Section 4C(4) hereof, this Agreement may be terminated:

1.        By mutual written consent of the parties;

2.        By Company or Customer, effective upon delivery of written notice to the other by certified mail or in person.

    1. Payment due Company for work done shall be prorated to and including the day of termination. Company shall be paid for the work done based on the hourly rate for custom work as set forth in Section 3C of this Agreement. Termination under any provision of this paragraph shall not affect any right, obligation or liability of Company or Customer which accrued prior to such termination.
    2. Termination of this Agreement for any reason shall not affect the mutual obligations of the parties to maintain the confidentiality of information pursuant to Section 10 hereof.

14. GENERAL PROVISIONS

    1. This Agreement can be modified only by a written Agreement duly signed by persons authorized to sign agreements on behalf of Customer and Company, and variance from the terms and conditions of this Agreement in any purchase order or other written notification from the Customer will be of no effect.
    2. Any delay or nonperformance of any provision of this Agreement caused by conditions beyond the reasonable control of the performing party shall not constitute a breach of this Agreement, provided that the delayed party has taken reasonable measures to notify the other of the delay.
    3. Company shall furnish to Customer its employer identification number, as designated by the Internal Revenue Service.
    4. Company is an independent contractor and is solely responsible for the conduct of its programs and/or services. Company, its employees, subcontractors or agents shall not be deemed employees or agents of Customer.
    5. If Customer is a unit, agency or any part of the United States Government, use, duplication or disclosure by the Government is subject to restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19 when applicable, or in subparagraph (c) (1) (ii) of the Rights in Technical Data and Computer SOFTWARE clause at DFARS 252.227-7013, and in similar clauses in the NASA AR Supplement. Contractor/ manufacturer is Kingham Software Inc.. 25 5th Street N.W., Winter Haven, FL 33881.
    6. If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired.
    7. Any notices required under this Agreement may be hand-delivered or shall be deemed received three (3) business days after mailing by certified mail, return receipt requested, to the following addresses:

Company: Kingham Software, Inc.

25 5th Street NW, Winter Haven, FL 33881-4506.

    1. This Agreement shall be governed and construed in all respects in accordance with the laws of the State of Florida, as they apply to a contract entered into and performed in that State.
    2. This Agreement is the complete and exclusive statement of the Agreement between the parties and supersedes all agreements or prior agreements, oral or written, and all other communications between the parties relating to the subject matter. The parties acknowledge that they have not relied on any representations or misrepresentations not set forth herein.

 

EACH PARTY ACKNOWLEDGES (1) READING, (2) UNDERSTANDING AND (3) RECEIVING A COPY OF THIS AGREEMENT.

BY THEIR USE OF WIN!FACTOR SOTWARE.

 

 

 

 

Microsoft, Microsoft Word, Microsoft Excel, Microsoft Access, Microsoft PowerPoint, Microsoft Office, and Microsoft Visual Basic are registered trademarks of Microsoft Corporation. Other product names mentioned are for identification purposes only and may be trademarks of their respective companies.