StartupBUSINESS.COM

Appointment of Licensing Agent: Non-Exclusive Grant

THIS AGREEMENT by and between (hereinafter "Principal"), a

corporation duly organized and existing under the laws of the State of , and

having its principal offices at ; and (hereinafter "Agent"), a

corporation duly organized and existing under the laws of the State of and

having its principal offices at

WITNESSETH:

WHEREAS, Principal is a proprietor of certain computer programming specifically defined herein as the Products;

WHEREAS, Agent has special knowledge concerning the identity of prospects in the Territory and has knowledge concerning the applicability of the Products to the business of such prospects;

WHEREAS, Principal wishes to appoint the Agent for the marketing of the Products and the provision of certain services relating to such marketing efforts; and

WHEREAS, Agent is willing to accept such appointment under the terms of this Agreement;

NOW, THEREFORE, the parties agree as follows:

Section 1

SUBJECT PRODUCTS

1.1 The Products covered by this Agreement are listed by name or designation on Exhibit A to this Agreement [omitted] and consist of computer programs and associated end-user documentation offered generally to end-users by Principal under the terms and conditions of a certain form of license agreement. The form of license agreement is attached hereto as Exhibit B [omitted].

1.2 Principal offers enhancement and error-correction services with respect to the Products under the terms and conditions of a service agreement. The form of service agreement is attached hereto as Exhibit C [omitted].

Section 2

APPOINTMENT OF AGENT

2.1 Subject to the terms and conditions hereof, Principal hereby designates and appoints Agent, for the term of this Agreement, as its non-exclusive representative for

the solicitation of license agreements and service agreements relating to the Products from end-users in the Territory hereinafter defined, and Agent hereby accepts such designation and appointment.

Section 3

DUTIES OF AGENT

3.1 Agent agrees for the period of this Agreement that it shall perform the following:

a. Promote and market the Products to prospective end-users by:

i. Identification of business organizations within the Territory that may benefit from use of the Products and are capable of paying the fees imposed under the license agreement and the service agreement;

ii. Contacting of such prospective licensees and arranging for and conducting competent and effective presentations relating to the Products;

iii. Performance of appropriate marketing efforts and promotion necessary for Principal to obtain duly executed license agreements and service agreements from potential end-users;

iv. Forwarding of executed license agreements and service agreements to the Principal for Principal's evaluation and acceptance;

v. Provision of a "Demonstration System" consisting of [identify configuration of computer equipment and accompanying operating system software] at the expense of Agent for the purposes of conducting demonstrations and performance benchmarks of the Products;

vi. Performance of demonstrations of the Products to prospective end-users either on the premises of such end-users or at locations arranged by and paid for by Agent, as necessary to demonstrate the Products effectively; and

vii. Serving as a point of contact for necessary communications between end-users and Principal with respect to the Products.

b. Prepare and submit to Principal on or before December 31 and June 30 of each year a complete and accurate written report of the activities of Agent hereunder, including, without limitation, the following:

i. A description of all promotional and marketing activities undertaken during the preceding six months setting forth the identity and addresses of prospective end-users;

ii. A summary of the nature of contacts made with such end-users, and Agent's assessment of results of such contacts; and

iii. A listing by identity and date of all license agreements and service agreements executed by prospective end-users and forwarded to Principal as a result of Agent's activities.

Section 4

GRANT OF LIMITED LICENSE TO PRODUCTS

4.1 Principal hereby grants to Agent during the term of this Agreement a personal, non-exclusive, nontransferable license to use two "Demonstration Copies" (in machine-readable form delivered on 51/4-inch floppy disks) of each Product for purposes of demonstration to prospective end-users in connection with the marketing of Products. Agent acknowledges and agrees that the Products are owned by and proprietary to Principal and embody valuable copyrights and trade secrets of Principal. Agent agrees to accept two Demonstration Copies of each Product on such terms. Agent shall make no additional copies of the computer programs comprising the Product and shall not attempt to reverse engineer such programs. Agent shall protect Products from unauthorized copying, dissemination, disclosure, or decompilation or other unauthorized use. Agent shall use Products only for demonstration to prospective end-users (1) on computer systems owned or leased by Agent and (2) on the computer system of a prospective end-user. In each case, Agent shall (1) control and limit the use of Products for the specific purpose authorized; (2) accompany the prospective end-user at all times that the Product is installed at the site of such prospective end-user; and (3) upon completion of the demonstration, remove the Product from such end-user's computer and cause the deletion of all portions of the Product from computer files in which such Product resided. In addition, Agent shall hold in trust and confidence for Principal, and use due care in protecting from disclosure, all materials and information of Principal that are marked or identified by Principal as confidential information or trade secrets of Principal.

4.2 Agent shall have the authority to solicit the signature of end-users on Principal's standard form of license agreement and standard form of service agreement as such forms of agreement may be revised from time to time and furnished to Agent. Agent has and shall exercise no authority to make any alterations in such agreements or to execute or accept such agreements on behalf of Principal. Agent shall inform all end-users that such agreements must be forwarded to Principal for consideration, acceptance, and execution by Principal in order for such agreement to be binding on Principal.

4.3 Agent has and shall exercise no authority to make statements or representations concerning the Products that exceed or are inconsistent with the marketing materials and technical specifications provided to Agent by Principal. Agent has and shall exercise no authority to bind Principal to any undertaking or performance with respect to the Products.

Section 5

ANCILLARY SERVICES

5.1 Agent is authorized to offer directly to end-users separately and independently of its reimbursable functions as Agent under this Agreement appropriate ancillary services, which shall include, but not be limited to, the following:

a. Assistance to end-users with the installation of the Products on end-users' computers;

b. Performance of technical training at end-users' locations or at locations secured by Agent for end-users' personnel relating to the Products; and

c. Provision of telephone hot-line service and consulting support to end-users by technically trained personnel respecting the documentation, functions, and operation of the Products.

5.2 The terms, conditions, and charges for such ancillary services shall be established by Agent with end-users. Agent shall inform end-users (1) that Principal's obligations are limited to those contained in the license agreement and service agreement and that services of Agent are offered on Agent's own account and (2) that Agent remains solely responsible for such ancillary services.

Section 6

UNDERTAKINGS OF PRINCIPAL

6.1 Principal shall:

a. Promote the Products as it deems appropriate with national and local ad¬vertising.

b. Provide technical training respecting the Products to two of Agent's employees. Such training shall consist of one two-week training course offered at Principal's field training center premises at [address]. Principal shall provide such training at its cost, but Agent shall be responsible for travel and living expenses incurred by its employees.

c. Provide reasonable quantities of technical publications and marketing materials (including descriptive brochures, technical specification materials, and promotional materials suitable for retail use) as it deems appropriate for activities to be conducted by Agent.

d. In good faith, evaluate the qualifications of end-users that execute license or service agreements and have Agent forward them to Principal. Principal reserves the right to reject license agreements and service agreements executed by organizations that Principal determines to be (1) inappropriate end-users of the Products or (2) unacceptable credit risks. Principal may require tender (by certified check or letter of credit) of all or part of applicable license fees and service fees prior to acceptance by Principal.

e. Perform all obligations of Principal under accepted license agreements and service agreements, including shipment or delivery to the end-users of copies of computer programs, documentation, error-correction materials, and updates comprising the Products.

f. Invoice and collect amounts payable under each license agreement and service agreement accepted by Principal.

Section 7

COMPENSATION

7.1 Agent shall be paid percent of the revenue actually collected by Principal

under license agreements and service agreements forwarded to Principal by Agent and accepted by Principal. Such payment shall be made by Principal within 10 days after the conclusion of each calendar quarter as to amounts received by it in such calendar quarter. Cash payment shall be accompanied by a detailed accounting of the basis for such payment, identifying the source and amount of applicable revenues so received by Principal.

7.2 Amounts payable to Agent shall be subject to a charge-back or credit in favor of Principal in the amount previously paid Agent with respect to amounts that are refunded to end-users, Agent agrees to cooperate with Principal and aid in the collection of accounts receivable under license agreements and service agreements forwarded to Principal by Agent.

7.3 Principal shall retain 15 percent of the amounts due to Agent under this Section 7 up to a maximum amount of $ , as a retainer against claims made against Principal for which Agent is liable. Such retainer shall be held by Principal for a period of six months following termination of this Agreement.

Section 8

TERRITORY

8.1 The territory of this Agreement shall be the [counties; states] of

Section 9

TERM AND TERMINATION

9.1 The term of this Agreement shall commence upon the date of execution of the last party to sign this Agreement and shall continue for two years thereafter unless sooner terminated in accordance with the provisions herein. This Agreement may be thereafter extended only by a written instrument executed by both parties.

9.2 Principal may terminate this Agreement upon written notice to Agent in the event of the breach of any material obligation hereunder by Agent that is not cured by Agent after receipt from Principal of 10 days' written notice from Principal calling attention to such breach and demanding cure thereof. In the event of such termination for cause, Principal's sole obligation to Agent shall be to pay compensation earned prior to the date of termination, less the amount retained under Section 7 hereof.

9.3 Either party may terminate this Agreement for such party's own convenience and at such party's own discretion upon six months' written notice to the other party.

9.4 Upon termination for convenience by Agent, Agent shall compensate Principal in the amount of $ for training if such termination occurs within six months of such training.

9.5 Upon expiration or termination of this Agreement, for any reason, Agent shall within 10 days of such termination return to Principal all copies of the Products, including the Demonstration Copy, and all copies of technical materials, brochures, marketing materials, and the like, and shall further provide to Principal copies of Agent's prospect files and end-user correspondence files. Agent's obligations respecting non-use and nondisclosure of Principal's confidential information or trade secrets contained in the Products shall survive termination of this Agreement and shall remain in effect for so long as such information shall remain proprietary to Principal.

Section 10

INDEMNITIES

10.1 The following indemnities are hereby established by this Agreement:

a. Principal does hereby indemnify Agent from and against any and all claims, demands, and actions arising out of any material breach by Principal of any of the terms of the License Agreement or Service Agreement; and

b. Agent does hereby indemnify Principal for and against any and all claims, demands, and actions arising out of Agent's activities or performance under this Agreement or any breach of Agent's obligations hereunder.

10.2 The indemnities contained in Section 10.1 hereof shall be conditioned upon the indemnifying party's receiving (1) prompt written notice of any claims, demands, or actions for which indemnity is sought; (2) cooperation in the defense by the party seeking indemnity; and (3) control of the defense and/or settlement of such claim, demand, or action as to which indemnity is sought.

Section 11 EXPENSES

11.1 Agent agrees that it shall be responsible for its own expenses and costs under this Agreement, and that Principal shall have no obligation to reimburse Agent for any expenses or costs incurred by Agent in the performance of Agent's duties hereunder.

[Alternate provision]

Section 11

ALLOWABLE-COSTS REIMBURSEMENT

11.1 Subject to a maximum reimbursable amount of $ per year under this

Agreement, Principal shall reimburse Agent for reasonable and actual costs incurred in the performance of Agent's duties hereunder limited solely to the following authorized costs:

a. Travel expenses relating to meetings with end-users or prospective end-users in the amount of $ per mile, or the total actual amount of tourist

class air fare plus auto rental, whichever is less;

b. Subsistence expenses while traveling, in an amount not to exceed $ per

day;

c. Lodging expenses for such meetings when such meetings are more than 200 miles from Agent's principal place of business, in an amount not to exceed $ per day; and

d. The cost of demonstration facilities when demonstrations cannot be conducted on the premises of end-users or prospective end-users and with the prior written approval of Principal for the renting of such facilities.

11.2 Agent shall submit monthly statements of costs incurred, indicating all authorized expenditures for which reimbursement is claimed, including receipts and supporting documentation. Principal may require additional documentation to that supplied by Agent as it deems necessary.

Section 12

LIMITATIONS OF LIABILITY

12.1 It is agreed by the parties that neither party shall have a right to or shall claim limited, special, indirect, or consequential damages, including lost profits, for breach of this Agreement. Remedies shall be limited to claims for amounts due hereunder or for indemnification as provided for herein. The foregoing limitation of remedies shall not apply to any action by Principal for infringement by Agent; any action based on or with respect to unauthorized publication, disclosure, or use of confidential information or trade secrets of Principal; or any action based on Principal's rights in copyrights, trademarks, or trade names or other proprietary rights in the Products.

Section 13

TRADEMARK

13.1 Except for use for the purposes of identification of Products, no right, title, interest, or license in or to any trademark or service mark of Principal is granted to Agent under this Agreement. Agent may on its business cards state that Agent is an authorized agent for licensing of the Products and Service Agreements of Principal.

Section 14

STATUS OF AGENTS PERSONNEL

14.1 The parties to this Agreement are and shall remain independent contractors, and nothing herein shall be construed to create a partnership or joint venture between Principal and Agent. Agent shall be responsible for wages, hours, and conditions of employment of Agent's personnel during the term of and under this Agreement. Nothing herein shall be construed as implying that employees of Agent are employees of Principal.

Section 15

INSURANCE AND CERTIFICATES OF INSURANCE

15.1 During and for the term of this Agreement, Agent shall be responsible for procuring and maintaining in full force and effect automobile insurance, general comprehensive liability insurance, workers' compensation insurance, and unemployment insurance in such amounts as may be required by law or as may be set forth in Exhibit D hereto [omitted]. With the exception of workers' compensation and unemployment insurance, Principal shall be designated as an additional named insured on such insurance policies maintained by Agent. Agent shall require that certificates of insurance be provided to Principal and that any notice of cancellation of such policies be given by the insurer to Principal not later than 25 days prior to the effective date of such cancellation.

Section 16

ARBITRATION

16.1 Any disputes arising under this Agreement relating to payment to Agent of Agent's compensation or authorized costs under this Agreement shall be settled by binding arbitration between the parties hereto in accordance with the commercial arbitration rules of the American Arbitration Association. The arbitrator shall not be empowered to award as compensation more than percent of the revenue received by Principal with respect to License Agreements and Service Agreements in the Territory nor more than $ for reimbursable expenses in any calendar year.

Section 17

COST OF LITIGATION OR ARBITRATION

17.1 In the event of litigation or arbitration arising under this Agreement, upon final judgment and award of a court of competent jurisdiction, the prevailing party shall be entitled to recover, in addition to other amounts awarded under such judgment, reasonable attorney fees of such prevailing party.

Section 18

NOTICES

18.1 All notices, demands, or consents required or permitted under this Agreement shall be in writing and shall be delivered personally or sent by certified or registered mail to the appropriate party at the address set forth in the first paragraph of this Agreement or at such other address as shall be given by either party to the other in writing.

Section 19

CHOICE OF LAW

19.1 This Agreement shall be deemed to be made in the State of

and shall in all respects be interpreted, construed, and governed by and in accordance with the laws of the State of

Section 20

WAIVER OF RIGHTS

20.1 The waiver by either party of any term or provision of this Agreement shall not be deemed to constitute a continuing waiver of such term or provision or of any further or additional rights such party may hold under this Agreement.

Section 21

NO ASSIGNMENT; ENFORCEABILITY

21.1 This Agreement is personal to Agent and is not assignable without the prior written consent of Principal. Any attempt to assign, transfer, or subcontract any of the rights, duties, or obligations of this Agreement without such consent is void. If any provision or provisions 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 thereby.

Section 22

COMPLETE AGREEMENT

22.1 The parties agree that this Agreement is the complete and exclusive statement thereof between the parties and that it supersedes and merges all prior proposals and understandings, and all other agreements, whether oral or written, between the parties relating to the subject matter hereof. This Agreement may not be modified or altered except by a written instrument duly executed by the parties hereto.

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as set forth below.

[Principal]

By:

Title:

Date:   , 20

[Agent)

By:

Title:

Date:   , 20