| OEM License Agreement |
OEM License Agreement
This Agreement is made between ___________________________ ("Manufacturer") and Company ("Licensor") to authorize Manufacturer to bundle certain Licensed Software (as specified in Attachment A) with certain products (“HARDWARE”) produced and/or marketed by Manufacturer. Therefore, in consideration of the mutual promises, the parties agree as follows:
1. LICENSE DESCRIPTION Licensor grants to Manufacturer a worldwide, non-exclusive license to reproduce, have reproduced, market and distribute the Licensed Software solely for use as bundled software with retail unit sales of Manufacturer’s branded Hardware products. OEM sublicensing of the Licensed Software is expressly restricted, and shall be subject to Licensor's advance written approval and execution by Sublicensee of an OEM Sublicensing Agreement in a form provided by Licensor.
2. LICENSE TERMS In exchange for the grant of this license, Manufacturer agrees to pay to Licensor the royalty fees set forth in Attachment B and to comply with the license terms and conditions contained herein. The volume pricing set forth in Attachment A is based upon Manufacturer's commitment to the following:
a) Manufacturer agrees to make its user registration data base available to Licensor for use in Licensor direct marketing programs, and further agrees to cooperate in implementing certain joint marketing activities as set forth in Attachment C herein;
b) Manufacturer agrees to include a copy of Licensor's product catalog, User Registration Card and Audit Label with each unit of Licensed Software included with Manufacturer’s Hardware products. Such items will be supplied by Licensor and will be subject to Manufacturer's approval;
c) Manufacturer agrees to review with Licensor the details of production and packaging of all Licensed Software, including outer box copy, disk screening, and any printed user documentation and collateral materials;
d) For use in hardware compatibility testing and development, Manufacturer agrees to provide Licensor with two (2) units each of any Hardware product in which a Licensor Licensed Software product is to be bundled.
3. PURCHASE COMMITMENT Manufacturer agrees to license an agreed number of units of Licensed Software at the specified royalty rates, and further agrees to pay certain non-refundable license fees against future royalties, due and payable per Attachment B as non-recoverable advances against unit license royalties under this Agreement. Royalties due for units produced in excess of prepaid units shall be payable monthly, net 30 days after the conclusion of each monthly shipping period. Manufacturer shall provide Licensor with a written accounting of all units produced and shipped during each month within 30 days after the completion of each monthly shipping period. Licensor may request and shall be provided substantiating information to verify and audit the accuracy of the royalty accounting reports for any royalty period(s). Licensor may at its option and expense conduct an on-site audit of Manufacturers records once per year. In the event such audit should disclose a deficiency in reported units for any period(s) exceeding 10%, Manufacturer shall reimburse Licensor for any and all reasonable expenses incurred and related to conducting such audit and collection of any deficiency amounts (including attorney’s fees and interest, as applicable).
4. PRODUCT DELIVERY Licensor agrees to deliver master production disks of the Licensed Software and associated printed materials in accordance with the Project Schedule specified in Attachment B, conditioned upon Licensor’s timely receipt of applicable royalty advances and required Hardware test units. Licensor shall have the right at any time during the effectiveness of this Agreement to replace any master production disks with updated versions with equal or greater capability, reflecting bug fixes, enhancements and updates to collateral information occurring after delivery of the previous version, and Manufacturer agrees to utilize such revised master as soon as reasonably practicable.
5. REPARATION OF DEFECTS Licensor agrees to use its best efforts to correct any reported defects in the Licensed Software. Defects are defined as functional or operational differences between the Licensed Software as described in any user documentation and the actual performance thereof, where such difference substantially impairs the use or performance of such Licensed Software. Upon receipt of written notification of a defect(s) from Manufacturer, Licensor will use its best efforts to correct such and ship to Manufacturer a corrected master production disk within sixty (60) days. However, in the event Manufacturer experiences a critical defect(s) which renders the Licensed Software unusable (a “stop ship” defect), then in such case Licensor will use its best efforts to deliver a corrected disk within 7 days (or less as possible). Licensor's sole liability shall be to replace any defective Licensed Software or refund the license fee for unused portions, at Licensor's option. Licensor makes no warranties other than this express warranty, and specifically excludes any warranties of merchantability or fitness for a particular purpose. Licensor shall not be liable for any indirect, special, incidental or consequential damages in connection with any items supplied under this Agreement.
6. TERM OF AGREEMENT Upon acceptance by both parties, this Agreement shall be effective for a term of 12 months, or such other term as is specified in Attachment A. Either party shall have the right to terminate this Agreement in the case of a material breach by the other party, by providing such party written notice of the breach, and upon the breaching party's failure to cure its breach within thirty (30) days after its receipt thereof. Further, Licensor shall have the right to terminate this Agreement in the event Manufacturer is adjudged bankrupt, placed in receivership, or changes its ownership or legal structure. Neither party shall be liable to the other for damages, losses, or expenses as a result of any permitted termination of the Agreement; provided that such termination or expiration shall not affect any claim, demand, or liability of either party created or arising under this Agreement prior to such termination. Termination of this Agreement solely as a result of Manufacturer's default shall result in acceleration of Manufacturer's obligation to pay all sums Manufacturer has contracted to pay under this Agreement.
7. COPYRIGHT & TRADEMARK Materials supplied by Licensor under this Agreement contain proprietary information and trade secrets of Licensor and Licensor licensors, and are governed by U.S. and International copyright laws. Title and ownership rights shall in all cases remain exclusively with Licensor, and Manufacturer agrees to place the following notice on all media and documentation containing Licensor proprietary information: "(c) year Licensor Inc. All rights reserved." Licensor warrants to Manufacturer that Licensed Software under this Agreement does not infringe upon or violate any U.S. or foreign patents, copyrights, trade secrets or any other proprietary right of any third party. Licensor’s entire obligation and liability under this warranty shall be to indemnify and hold Manufacturer harmless from and against any claims for damages, including reasonable legal fees and expenses, resulting from any breach of this warranty. Manufacturer agrees to promptly notify Licensor upon learning of any such claim and will cooperate fully in its defense or settlement.
8. SERVICE & SUPPORT Manufacturer is directly responsible for all warranty and other end-user support for all Licensed Software distributed by Manufacturer. Manufacturer's Customer Support staff are encouraged to contact Licensor Technical Services for assistance on technical questions concerning the Licensed Software, however, Manufacturer is not permitted within the scope of this agreement to instruct their users to contact Licensor directly for technical matters. In instances where Manufacturer has attempted to remedy a customer technical problem related to the Licensed Software and has been unsuccessful, Manufacturer may communicate a contact name to Licensor’s Technical Services staff for processing directly by Licensor, or in combination with Manufacturer’s staff. Spash agrees to provide reasonable materials for sales, technical and marketing support, as available.
9-14 MISCELLANEOUS CONDITIONS 9. Manufacturer is an independent contractor and shall at no time have the power to bind Licensor or to vary the terms and conditions or warranties or covenants, or to create any rights in favor of any person which Licensor has not previously authorized in writing, and the relationship under this Agreement shall not create any form of legal association between the parties which would impose liability upon the other. This Agreement is not assignable by Manufacturer. If any provision of this Agreement is held improper or unenforceable, the remaining portions shall remain in full force and effect.
10. Manufacturer agrees that the terms of this Agreement, including prices, are highly confidential and acknowledges that disclosure thereof can be highly damaging to Licensor’s general marketing efforts of retail products and OEM products, and therefore acknowledges that such will not be disclosed to third parties, including OEM partners, without the written consent of an officer of Licensor.
11. All notices under this Agreement shall be delivered in writing, either: (a) mailed via certified mail to the other party at its contact address or at such address as the party may give notice; or (b) delivered personally to an officer of the other party. Any mailed notice is effective when deposited in the U.S. mail, properly addressed with postage prepaid.
Licensor Contact: name: ________________ tel: ________________ title: _______________ fax: _______________ address: ______________ email: ______________ city/state:
Manufacturer Contact: name: ________________ tel: _______________ title: ______________ fax: _______________ address: ______________ email: _______________ city/state: _______________
12. This Agreement is made subject to any applicable regulations, of other restrictions on the export from the U.S.A. of controlled commodities, technical data, or of information concerning such technical data, which may be imposed from time to time by the U.S. Government. Manufacturer will not export, directly or indirectly, any Licensed Software or information pertaining thereto to any country for which the U.S. Government or any agency thereof requires export licenses or approval without first obtaining such.
13. This Agreement shall be governed and construed in accordance with the Laws of the State of [State], U.S.A.. Should the parties be unable to resolve any disagreement relating to this Agreement, it is agreed to submit such issue(s) to a panel of three (3) arbitrators familiar with the resolution of software disputes appointed by the American Arbitration Association. Such arbitration will take place in [City], [State], with each of the parties sharing all costs and expenses directly related thereto. Neither party hereto shall have the right to further appeal or redress in any court or tribunal, except solely for the purpose of enforcement of any arbitral award tendered by the selected panel of arbitrators. In a legal action to enforce such arbitral award, the prevailing party shall be entitled to reasonable attorneys' fees and expenses.
14. Manufacturer and Licensor agree that these terms and conditions and associated attachments are the complete statement of the agreement between the parties, superseding all oral or written proposals and all negotiations, conversations, and other communications between the parties with respect to the subject matter hereof, except that any Non-Disclosure Agreements shall continue in effect. Both parties represent and warranty that their entry into this Agreement is rightful and does not violate any other agreement to which they are a party.
IN WITNESS WHEREOF, the parties have executed this Agreement of the _____day of____________ , 19___.
For Licensor: For Manufacturer:
___________________ ___________________________ Accepted By: Accepted By: ____________________ ______________________________ Name/Title Name/Title
ATTACHMENTS: Attachment A - Listing of Licensed Software and Bundles Attachment B - Project and Payment Schedules Attachment C - Marketing and Promotional Plan
Attachment A
LICENSED SOFTWARE
License Volume Per Unit Description Commitment Royalty Rates
LICENSED BUNDLES
Product Model Projected Description Number Ship Date ***(Specify applicable products that will bundle Licensed Software)***
Note: Manufacturer to provide Licensor with written notice 30 days in advance of the release of any new product that will incorporate Licensed Software as a bundled component.
Attachment B
PROJECT SCHEDULE
Date Description__________________________________________________________________ Contract Signing Date Delivery of Release Candidate Delivery of Master Duplication Disks
PAYMENTS SCHEDULE
Due Date Description___________________________________________________________ Amount Initial Payment Due at Contract Signing (25% Contract Minimum) Second Installment Payment Due Net 90 (25% Contract Minimum) Third Installment Payment Due Net 180 (25% Contract Minimum) Final Payment (25% Contract Minimum)
PAYMENT INSTRUCTIONS
Payment by Wire Transfer: Bank Name: Branch: Bank Address: Bank Telephone: Bank Facsimile: Manager Contact: Account Number: ABA Routing Number:
Please fax copies of bank T/T (wire transfer) confirmations direct to Licensor to insure proper credit.
Payment related notices to be directed to attention of: Attachment C
The following plan sets forth a program for mutual promotion of the Manufacturer's and Licensor's products and companies toward the trade press, industry, and channel influencers:
1) PR. Manufacturer and Licensor agree to make a joint press release upon execution of this OEM License Agreement, and successively upon release of new product bundles;
2) Events. Licensor and Manufacturer agree to cooperate in demonstrating and promoting the Hardware and bundled Licensed Software products at trade shows, press and channel events; Manufacturer agrees to reasonably support such efforts by providing advance notification of pertinent events, and by providing dedicated demonstration units of equipment and space as possible;
3) Training. Licensor agrees to cooperate in making available reasonable opportunities for training for Manufacturer's sales force and technical services staff; on-site training may be available upon mutual agreement of the parties and subject to payment of reasonable travel expenses;
4) Promotions. Licensor and Manufacturer may at their options pursue special promotions and campaigns focused on the channel or endusers (ie. special bundles and dealer promotions), including promotional mailings to registered users of either party;
5) Advertising. Manufacturer agrees to reference bundled Licensor products on its packaging and as appropriate within print advertising insertions promoting Manufacturer’s Hardware products;
6) Merchandising Materials. Manufacturer agrees to insert copies of Licensor's product catalog or other merchandising materials within the packaging of each unit of Hardware in which a Licensor Licensed Software product is bundled; optionally such information may be included as an “on-line” component accessible to the enduser from within the Licensed Software during use;
7) OEM and ISV Contacts. Manufacturer agrees to provide contact names and info for manufacturer's ISV Developers and OEM partners to allow Licensor to pursue direct non-competitive relations;
Sample Language for a Rebate Program:
Manufacturer agrees to inclusion of a Licensor product catalog with each shipped unit of the Hardware, and further agrees to provide Licensor with regular reports of registered user information (including names, addresses and telephone numbers) for use by Licensor for direct product marketing purposes. In return, on any upgrade sales resulting from special offer orders placed by Manufacturer's end users derived from offers imbedded in the License Software or solicited by direct mail that occur during the term of this Agreement, Licensor agrees to extend to Manufacturer a 15% rebate, paid on a quarterly basis, within 30 days of the end of Manufacturer's calendar quarter. Manufacturer shall have the rights to audit Licensor's books once per 6 month period to assure accurate accounting of upgrade sales to Manufacturer's end users.
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