1. Licensor has developed certain computer software that manages lead distribution that it provides on an Application Software Provider (“ASP”) basis under the name LeadExec (collectively with all users' manuals, handbooks, or other written or electronic material relating to the LeadExec (the “Documentation”) the “LeadExec”).
2.Licensee desires to license from Licensor the LeadExec on an ASP basis for use by Licensee and Licensee’s subcontractors in its lead generation business.
1.1. An “Affiliate” means any corporation, partnership, joint venture, or other entity (1) which Licensee owns or controls, directly or indirectly, stock or other interest representing more than twenty-five percent (25%) of the aggregate stock or other interest entitled to vote on general decisions reserved to the stockholders, partners, or other owners of such entity; (2) if a partnership, as to which Licensee or another Affiliate is a general partner; (3) to which Licensee provide substantial management services under contract; or (4) that Licensee otherwise control or assist in matters of management and operations.
1.2. “Documentation” means all users' manuals, handbooks, or other written or electronic material relating to the LeadExec.
1.3. “End-User Materials” means documentation that describes the function and use of one or more of the programs in the LeadExec in sufficient detail to permit use of the program.
1.4. “Licensee” means the Licensee as defined in the introductory paragraph above.
1.5. “LeadExec” means the LeadExec Software, the LeadExec Lead Retrieval System and all related Documentation. The LeadExec has the capabilities included on the Licensor Price Schedule attached hereto.
1.6. “Object Code” means the LeadExec LeadExec assembled or compiled in magnetic or electronic binary form on software media, which are readable and usable by machines, but not generally readable by humans without reverse assembly, reverse compiling, or reverse engineering.
1.8 “Lifecycle” is the CRM system available from ClickPoint and used by retail debt consolidation companies. The Lifecycle system is designed to help maximize the effectiveness of the leads supplied by the Licensee of Lead Pro. The Lifecycle system communicates with Lead Pro so that leads can be redistributed and sold. The Lifecycle system also communicates vital information used by the Licensee to determine leads that are in the closing process.
2.1 Use License. Subject to the terms and conditions of this Agreement and in consideration for the payment of the applicable License Fees (as defined below), Licensor hereby grants to Licensee a limited, non-exclusive, non-transferable license (the “License”) to access and use the LeadExec (as well as any related documentation, instructions, evaluations, or other written materials). Licensee further agrees that the object code is highly confidential and that it will not be disclosed to any third party without the express written permission of LeadExec.
2.2 Included in the Licensing usage fee for Lead Pro is one Lifecycle account with up to 10 users. Additional Lifecycle seats may be purchased for $35 per user per month. Each new office that requires a Lifecycle system will be subject to our standard setup fee.
2.3 Limitations on Use. Licensee and its subcontractors will use the LeadExec only for Licensees own business, and not directly or indirectly for the use or benefit of anyone other than Licensee, and only pursuant to the scope of the grant of the License set forth herein.
3.1 License Fees. Licensee agrees to pay the license fees (“License Fees”) and other charges identified in the then current Licensor Price Schedule for the Licensee License. After the first year of this Agreement, Licensor may modify the license fees or other charges published in the Price Schedule upon forty-five (45) days notice to Licensee published by e-mail, or by any method described in section 12.10 below for the giving of notice; provided, however, that Licensor may not increase the License Fee more than 10% in any 12 month period.
3.2 Payment Terms. Licensor shall invoice Licensee on or before the fifth business day of each month for the License Fees due for the preceding month or run a credit card provided by Licensee.
4.1 Term. This Agreement shall be effective from the Effective Date and shall remain in force until Licensee stops using the LeadExec or until Licensor terminates this Agreement and the License contained herein pursuant to the terms herein.
4.2 Termination with Cause. Licensor has the right to terminate this Agreement with “reasonable cause” with a 30 day written notice to Licensee. Reasonable cause includes violation of privacy and confidentiality provisions of Section 9 herein, failure to make licensing payment pursuant to Section 3 herein, or violation of Section 12.2. Licensee shall have the right to cure any violation within the 30 day period following receipt of notice.
4.3 Termination. Upon termination of this Agreement for any reason, Licensee will (i) return all copies of the LeadExec to Licensor without demand or notice, or (ii) permanently delete or destroy all copies of the Software in its possession and submit to Licensor a sworn affidavit signed by Licensee attesting to such destruction. Except as set forth in the provisions of this Agreement that provide for automatic termination in the event of breach of confidentiality or unauthorized transfer, if Licensee materially breaches any other provision of this Agreement, Licensor may terminate this Agreement, provided, however, that Licensor has given Licensee at least fourteen (14) days written notice of and the opportunity to cure the breach. Termination for material breach shall not alter or affect Licensor's right to exercise any other remedies for breach. The provisions of Sections 4.2, 5.3, 8, 9, 10, and 11 shall survive the termination of this Agreement for any reason. Any amounts due under the terms of this Agreement, including without limitation amounts for License Fees and Reseller Fees shall be paid by the appropriate party. Reseller Fees for periods beyond the date of termination will continue to be paid by Licensor as received.
5.1 Publicity and Press Releases. Neither party shall use the other’s trademark, tradename, logo, or other designation without the prior written consent of the other party.
6.1 Customization. Licensee will provide information regarding the persons identified as Licensee’s authorized technical administrator and business account administrator. Licensor will create any necessary login pages and passwords for Licensee’s administrators. Upon Licensee’s request, Licensor will create or apply any look and feel to Licensee’s site, if applicable, and Licensee agrees to pay for such customization at the rate of $100 per hour.
6.3 On-line Support to Licensee. Licensor shall make online support services available to Licensee. E-mail support consists of Licensee's ability to e-mail questions to a pre-established e-mail address at Licensor. Licensor will make reasonable efforts to provide an initial response via e-mail instantly and a resolution timeline within (1) hour of receipt, if such questions are received during normal business hours (9:00 a.m. to 5:00 p.m., California time, Monday through Friday, exclusive of federal holidays). Licensor will be available via AOL instant messaging from 8am to 5pm Monday through Friday. If an emergency arises beyond business hours Licensor technical staff may be reached by cell phone.
6.4 Training and Consulting. Licensor shall provide access to training, at Licensor's prevailing rates on the Price Schedule, to Licensee's personnel regarding operation of the LeadExec.
6.5 Maintenance. Licensor will use commercial best effort to maintain the LeadExec and to do an “Update” or version “Upgrade” to the LeadExec when necessary.
7.1 Software Rights. Licensor has all Intellectual Property Rights necessary to license the LeadExec to Licensee in accordance with the terms of this Agreement.
7.2 Material Defects. The LeadExec and any media on which it is delivered will be free from any malfunction, error, or other defect that constitutes a substantial nonconformity with the specifications for the LeadExec ("Material Defects"). Licensor's sole responsibility under this warranty shall be, at Licensor's option, to repair the LeadExec or media. Licensor does not warrant that the functions contained in the LeadExec will meet a user's requirements or that the operation of the LeadExec will be uninterrupted or error-free.
7.3 Limitations. The foregoing warranties apply only to Licensee. Licensor makes no warranties, express or implied, to any third parties, including Licensee's customers, except those contained in the written license agreement accompanying the LeadExec. Licensor shall have no obligation to provide warranty services if any Material Defect in the LeadExec or media is caused by: (i) a malfunction of hardware or software not supplied by Licensor; (ii) modification of the LeadExec by any person or entity other than Licensor; (iii) operator error; (iv) use of the LeadExec that is not in accordance with the operating instructions for the LeadExec; or (v) accident, abuse, or misapplication.
EXCEPT FOR LICENSOR'S EXPRESS WARRANTIES STATED HEREIN, ALL LICENSOR SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY WARRANTY WHATSOEVER. LICENSOR AND ITS LICENSORS DISCLAIM ALL IMPLIED WARRANTIES WITH RESPECT TO THE LICENSOR SOFTWARE OR OTHER PRODUCTS, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.6 Limitation of Liability.
LICENSOR'S LIABILITY ARISING OUT OF THIS AGREEMENT OR LICENSING OF THE LICENSOR SOFTWARE SHALL BE LIMITED TO THE LICENSE FEES PAID BY LICENSEE DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO LICENSOR'S LIABILITY. IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY LICENSEE OR ANY EXEMPLARY, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, OR FOR ANY LOST PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOR SHALL ANY LICENSOR OF LICENSOR BE LIABLE FOR ANY DIRECT OR OTHER DAMAGES OF ANY KIND WHATSOEVER, ARISING OUT OF THE USE OF THE PRODUCTS PROVIDED PURSUANT TO THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8.1 Ownership and Intellectual Property Rights. Licensee hereby acknowledges Licensor’s exclusive ownership, title, and interest in the Intellectual Property Rights and Marks and Trademarks as defined herein. Licensee further agrees that Licensor retains ownership and all forms of Intellectual Property Rights in the LeadExec, Confidential Information (as defined below), and Documentation. As used herein, the term "Intellectual Property Rights" includes without limitation all right, title, and interest in and to all (i) Letters Patent and all filed, pending, or potential applications for Letters Patent, including any reissue, reexamination, division, continuation, or continuation-in-part applications throughout the world now or hereafter filed; (ii) trade secret rights and equivalent rights arising under the common law, state law, federal law, and laws of foreign countries; (iii) copyrights and other literary property or authors rights, whether or not protected by copyright under common law, state law, federal law, and laws of foreign countries; and (iv) proprietary indicia, trademarks, tradenames, symbols, logos, and/or brand names under common law, state law, federal law, and laws of foreign countries. Licensee assigns to Licensor any Intellectual Property Rights it may now or hereafter possess in the LeadExec, Confidential Information, documentation and agrees to execute all documents, and take all actions, that may be necessary to confirm such rights.
8.2 Ownership of Licensee Data. Licensor hereby acknowledges Licensee’s exclusive ownership, title, and interest in the data Licensee posts to Licensor’s website (“Licensee Data”) in the operation of the LeadExec. Licensor further agrees that it will not use, manipulate, sell, transfer, divulge, give third party access to, or otherwise use Licensee Data for any purpose other than to fulfill its obligations under this Agreement.
8.3 Use of Marks. As used herein, the terms "Marks" or "Trademarks" mean all proprietary indicia, trademarks, tradenames, symbols, logos, and/or brand names Licensor currently uses or may adopt from time to time to identify Licensor, its products, or any related parties or materials. During the Term, Licensee shall have the right to indicate to the public that it is an authorized provider of the LeadExec and use the Marks to identify the LeadExec; but shall not make any other use of the same (and shall not make any use of any trademarks, trade names, symbols, or logos of any of Licensor's licensors) for any reason, except as expressly authorized by this Agreement. At no time during or after the term of the Agreement shall Licensee challenge or assist others to challenge Licensor's Intellectual Property Rights in the Marks or the registration thereof or attempt to register any trademarks, tradenames, or other proprietary indicia confusingly similar to the Marks, nor shall the authorized use of the Marks or Trademarks create in Licensees’ favor any right or interest in the Licensor Marks or Trademarks.
8.4 Proprietary Marks, Legends, and Notices. Licensee shall not remove any proprietary marks, legends, or patent or copyright notices that appear on the LeadExec packaging or products, including any Documentation or any whole or partial copies thereof. Unless the parties have executed a separate written agreement to the contrary, Licensee may not re-label or distribute the LeadExec under any name other than that used by Licensor. Licensee shall not modify or supplement the Documentation unless approved in writing by Licensor. Licensor may amend the LeadExec and the markings and notices relating thereto upon reasonable notice to Licensee.
8.5 Quality Control. All representations of the Marks that Licensee intends to use shall be exact copies of those used by Licensor or shall first be submitted to Licensor for prior written approval of design, color, and other details. Upon reasonable notice and request, Licensor may inspect copies of the LeadExec and other materials on which the Marks are used so that Licensor may monitor the quality of the products bearing the Marks.
As used in this Agreement, "Confidential Information" shall mean all information that is disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), including without limitation, hardware and software designs, product specifications and documentation, trade secrets, business and product plans, marketing information, and other confidential business information. Confidential Information shall not include information which: (i) is or becomes public knowledge without any action by, or involvement of, the receiving party; (ii) is disclosed by the receiving party with the prior written approval of Licensor; or (iii) is disclosed pursuant to any judicial or governmental order, provided that the receiving party gives Licensor sufficient prior notice to contest such order. The Receiving Party shall not disclose, or permit any third party or entity access to, the Confidential Information (or any portion thereof) without prior written permission of the Disclosing Party (except such disclosure or access which is required to perform any obligations under this Agreement). The Receiving Party shall insure that any employees, or any third parties who receive access to the Confidential Information, are advised of the confidential and proprietary nature thereof and are prohibited from copying, utilizing, or otherwise revealing the Confidential Information. Without limiting the foregoing, the Receiving Party agrees to employ with regard to the Confidential Information procedures no less restrictive than the strictest procedures used by it to protect its own confidential and proprietary information, but not less than reasonable care.
Licensee shall promptly notify Licensor in writing upon: (i) receipt of any notice of any claims by third parties that might affect the rights of Licensor or any of its licensors in the LeadExec and (ii) its discovery of any unauthorized use or infringement of the Confidential Information, Documentation, the LeadExec or Licensor's Intellectual Property Rights with respect thereto. Licensor shall have the sole and exclusive right to bring an infringement action or proceeding against any infringing third party, and, in the event that Licensor brings such an action or proceeding, Licensee shall cooperate and provide full information and assistance to Licensor and its counsel in connection with any such action or proceeding. Licensor shall promptly notify Licensee in writing upon its discovery of any unauthorized use of Licensee’s Confidential Information, including without limitation, Licensee’s data.
11.1 Indemnification by Licensee. Licensee shall protect, defend, indemnify, and hold Licensor and its officers, members, directors, agents, and employees harmless, at its expense, from any and all claims, demands, liabilities, obligations, deficiencies, losses, damages, actions, suits, proceedings, assessments, judgments, or settlements, including all reasonable costs and expenses related thereto such as attorneys' fees (each a “Claim”), that:
a. Arise from or are connected with the development, modification, use and distribution of the LeadExec by Licensee including, but not limited to, any unauthorized reproduction, warranty violations, inadequate installation, maintenance, defects in design, workmanship, materials, or otherwise or any misrepresentation or covenant or agreement on the part of Licensee relating to the LeadExec; provided, however, that Licensee shall not be liable under this section for claims arising solely from damage caused by the malfunction of the LeadExec;
b. Arise from or are connected with any breach by Licensee of any provision of this Agreement.
11.2 Indemnification by Licensor. Licensor shall protect, defend, indemnify, and hold Licensee and its officers, members, directors, agents, and employees harmless, at its expense, from any and all Claims that:
a. Arise from third party claims that the LeadExec or its use infringe the Intellectual Property Rights, including without limitation, the U.S. patents, copyrights or similar intangible rights, provided that Licensee will promptly notify Licensor of the matter, cooperate with Licensor as reasonably requested, and permit Licensor to control the investigation, defense, and disposition of the same.
12.1 Export. Licensee shall not export, directly or indirectly, the LeadExec, or other information or materials provided by Licensor hereunder, to any country, or provide access to any person for which the United States or any other relevant jurisdiction prohibits such exportation, without first obtaining such license or approval. Licensee shall comply with the latest United States export regulations, and the Licensee shall defend and indemnify Licensor from and against any damages, fines, penalties, assessments, liabilities, costs, and expenses (including reasonable attorney's fees and court costs) arising out of any claim that the LeadExec or other information or materials provided by Licensor hereunder were exported or otherwise shipped, transported, or distributed in violation of applicable laws or regulations.
12.2 Compliance with Laws of Other Jurisdictions. Licensee shall comply with all laws, legislation, rules, regulations, governmental requirements, and industry standards with respect to the LeadExec, and the performance by Licensee of its obligations hereunder, existing in any jurisdiction into which Licensee directly or indirectly distributes the LeadExec. In the event that this Agreement is required to be registered with any governmental authority, the Licensee shall cause such registration to be made and shall bear any expense or tax payable in respect thereof.
12.3 U.S. Government Agencies. If Licensee or any End-User is the Department of Defense ("DoD"), the LeadExec shall be supplied as "Commercial Computer Software" under paragraph 252.227-7014 of the DoD Supplement to the Federal Acquisition Regulations ("DFARS") (or any successor regulations) and the Government shall acquire only the license rights granted herein (the license rights customarily provided to non-Government users). If LeadExec or source code is supplied to any unit or agency of the Government other than DoD, it shall be supplied as "Restricted Computer Software" and the Government's rights in the LeadExec are defined in paragraph 52.227-19 of the Federal Acquisition Regulations ("FAR") (or any successor regulations) or, in the case of NASA, in paragraph 18.52.227 86 of the NASA Supplement to the FAR (or any successor regulations). Licensee shall take all actions reasonably necessary to protect Licensor's rights and interest in the LeadExec in accordance with such regulations and successor regulations including, but not limited to, the placement of appropriate legends on the LeadExec distributed by Licensee.
12.4 Force Majeure. In the event that either party is prevented from performing any of its obligations under this Agreement due to any cause beyond the party's reasonable control the time for such party's performance shall be extended for the period of delay or inability to perform due to such occurrence; provided, however, that the payment of any sums of money owed by Licensee to Licensor shall not be excused by the terms of this paragraph.
12.5 Waiver. The waiver by either party of a breach or a default of any provision of this Agreement shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right operate as a waiver of any right by such party.
12.6 No Agency. Nothing contained in this Agreement shall be deemed to imply or constitute either party as the agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
12.7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of AZ, without regard to its choice of law provisions.
12.8 Cost, Expenses, and Attorneys' Fees. If either party commences any action or proceeding against the other party to enforce or interpret this Agreement, the prevailing party in such action or proceeding shall be entitled to recover from the other party the actual costs, expenses, and reasonable attorney's fees, incurred by such prevailing party in connection with such action or proceeding and in connection with obtaining and enforcing any judgment or order thereby obtained.
12.9 Assignment. This Agreement, and the rights and obligations hereunder, may not be assigned, in whole or in part by Licensee, except to a successor to the whole of the Licensee's business, without the prior written consent of Licensor. In the case of any permitted assignments or transfer this Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the parties hereto.
12.10 Notices. Except as otherwise provided herein, all notices regarding obligations under this Agreement shall be in writing and either personally delivered or sent via facsimile, public key signed E-mail, or certified mail, postage prepaid and return receipt requested addressed, to such other party at the address specified on the first page. All notices shall be effective upon receipt.
12.11 Entire Agreement; Amendment. This Agreement, including the Schedules attached hereto, constitutes the entire agreement between the parties with regard to the subject matter hereof. No waiver, consent, or modification of terms of this Agreement shall bind either party unless in writing and signed by both parties, and then such waiver, consent, or modification shall be effective only in the specific instance and for the specific purpose given. Licensee shall not be construed as a third party beneficiary of any agreement between Licensor and any of its licensors.