This SaaS License Agreement (the “Agreement”) is effective [DATE],
BETWEEN: [YOUR COMPANY NAME] (the "Licensor"), a company organized and existing under the laws of the [State/Province] of [STATE/PROVINCE] with its head office located at:
[YOUR COMPLETE ADDRESS]
AND: [SECOND PARTY NAME] (the "Licensee"), a company organized and existing under the laws of the [State/Province] of [STATE/PROVINCE], with its head office located at:
[COMPLETE ADDRESS]
WHEREAS, the Licensor is engaged in the business of providing a software, as more specifically described in the Scope of Services of the present Agreement;
WHEREAS, the Licensor wishes to grant the Licensee the license to use its software in accordance with the terms of this Agreement;
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
DEFINITIONS
“
Documentation” means the technical publications relating to
the Software
, such as reference, user, installation, systems
administrator,
and technical guides, delivered by the Licensor to the Licensee.
“Licensee” shall mean the end user operating the Software.
“Software
” shall mean all or any portion of
the Software
and all
D
ocumentation relating thereto being licensed by the Licensor, or otherwise indicated in the Agreement as being licensed by the Licensor, which is delivered by
the
Licensor to
the
End User Licensee.
The
Software also includes the ideas and concepts contained within the various physical implementations of the Software, in machine-readable, object code form, and any computer programs delivered to
the
Licensee in machine-readable, object code form and any related
D
ocumentation associated therewith, including any user
D
ocumentation and all interfaces and custom programming developed by
the
Licensor for
the
Licensee under this
A
greement.
"Know-How" includes all technology, source code, object code, local area
network manager code, technical information, procedures, processes, trade secrets, methods, practices, techniques, information, logic/flow charts, sketches, drawings,
s
pecifications, application and modification manuals and data relating to the design, manufacture, production, inspection, and testing of the Software, which are from time to time in
the
Licensor's possession
.
"Manuals" means the programmer's manuals, the technical manuals and the user manuals
,
and other similar
D
ocumentation
.
"Modifications" means
e
nhancements and/or correction of
e
rrors, and Modifications shall be deemed to have been accepted by
the
Licensee upon the lapse of
_______
days following successful installation of any Modifications
,
unless
the
Licensee notifies
the
Licensor in writing prior to the lapse of such period that the Modifications in question do not conform to
the
s
pecifications.
TERM OF AGREEMENT
This Agreement shall come into force on the Effective date
,
as mentioned in the beginning of this Agreement
,
and shall continue to be in force for a period of ______ years from the Effective date hereof unless amended or terminated earlier in accordance with the provisions of this Agreement.
This Agreement may be renewed for an additional period with the mutual consent of both the parties and with the same terms and provisions, unless this
A
greement shall be amended or terminated in the manner hereinafter provided.
GRANT OF LICENSE
Subject to the terms and conditions of the Agreement,
the
Licensor grants to
the
Licensee a personal, non-exclusive, non-transferable license to use the Software developed by the Licensor.
The Licensee shall be entitled to use the Software provided by the
Company only
for its own use.
FEES:
The
L
icensor will provide the Software hereunder to the Licensee for a period of ____ years. The total Licensing fee of the Software shall depend on
a
project to project basis as decided between the parties with mutual consent in writing.
The
L
icensee shall be required to pay the decided Licensing fee to the Licensor on a
_________[
Yearly
/Monthly]
basis as Licensing fee of the Software.
The Software shall be installed at the Licensee
’s
premises only when the first year Licensing fee has been paid by the Licensee.
The Licensor has rights to terminate this Licensing Agreement with an immediate effect and uninstall its Software if the Licensing fee is not paid by the Licensee for a period of
________
days post its due date.
All payments hereunder shall be made via ____________________ (mode of payment).
ACKNOWLEDGEMENTS, REPRESENTATIONS AND WARRANTIES BY THE LICENSEE
The Licensee shall not directly or indirectly, market, distribute, sell, lease, license, sub-license
decompile
, disassemble, reverse engineer, duplicate, copy, use the Software to provide processing services to third parties, or otherwise use the Software on a service bureau basis
,
or attempt to derive the source code from it.
The Licensee may not rent, lease, lend or provide commercial hosting services with the Software, unless
agreed
by the Licensor in writing.
The Licensee
may not t
ransfer the Software to a different Software database platform or operating system
,
unless agreed by the Licensor in writing.
The Licensee
may not e
xport, use or permit to be accessed, the Software or Documentation in violation of
applicable l
aw
s
or any law or regulation of any country
.
The Licensee
may not, d
irectly or indirectly, sublicense, relicense, distribute, disclose, use, rent or lease the Software or any portion thereof, for third
-
party use, training, facilities management, time-sharing, use by an application service provider or service bureau use.
CONFIDENTIAL INFORMATION
“C
onfidential information
”
means all trade secrets, know-how, Software and other financial, business or technical information of
the L
icensor or any of its suppliers that is disclosed by or for
the
L
icensor in relation to this
A
greement but not including the information which the
L
icensee can demonstrate (a)
was
rightfully furnished to it without restriction by a third party
and
without breach of any obligation to the
L
icensor, (b)
is
generally available to the public without breach of this
A
greement or (c)
was
independently developed by it without reliance on such information. The
Software is
the
L
icensor’s confidential information.
Except for the specific rights granted by this
A
greement,
the
L
icensee shall not possess, use or disclose any confidential information without
the
L
icensor’s prior written consent, and shall use reasonable care to protect the confidential information.
The
Licensee shall be responsible for any breach of confidentiality by its employees
, officers, agents, directors or representatives
.
COPYRIGHTS
The Software and Related Materials are owned by
the
Licensor and are protected by
U.S.
copyright laws and applicable international treaties and/or conventions. Without limiting the prohibition on assignment contained elsewhere in this
Agreement,
the
Licensee acknowledges that its rights to use the Software are personal to
the
Licensee.
The
Licensee therefore covenants not to permit the use of the Software by unauthorized persons and to use its best efforts to prevent the
exportation of the Software or any portion thereof into any country which does not have copyright laws that will protect
the
Licensor's Copyrights.
The
Licensor, at its own expense, will defend and indemnify
the
Licensee from all claims that the Software infringe
s
a
U.S.
copyright,
provided that
the
Licensee gives
the
Licensor prompt written notice of such claims and permit
s
the
Licensor to defend or settle the claims and provides
the
Licensor with all reasonable co-operation
,
and further provided that
the
Licensor shall not be required to defend and indemnify
the
Licensee from infringement claims resulting from Modifications by
the
Licensee.
AUDIT
The
L
icensor shall have the right to conduct an audit of
the
Licensee’s account by its own Independent Auditor at any time during the term of this Agreement.
TERMINATION
This
A
greement shall automatically be terminated when the term of this Agreement comes to an end
,
unless renewed by mutual consent of both the parties before the term hereunder comes to an end.
The
Licensor shall terminate this Agreement with 30 (
t
hirty) days
’
notice if
the
Licensee is in default of any of the terms and conditions of this Agreement and fails to correct such default within ten (10) days after written notice thereof from
the
L
icensor.
The
Licensor shall terminate this Agreement with an immediate effect if:
the Licensor d
isclose
s
information relating to the Licensor or the Software that jeopardizes the business interests of the Licensor
; or
there is a
ny act or omission that has the effect of diminishing the value of the Software
; or
there
is a
ny act or omission that permits any third party to develop or duplicate the Software
; or
there
is a
ny act in violation of
c
onfidentiality
or the
n
on-solicitation
c
lause of this Agreement.
If the Licensee decides to terminate this Agreement before the term of this Agreement comes to end
,
then the
L
icensee shall be liable to pay the full cost of the Licensee fee for the
total period initially agreed upon.
At the time of termination by either party, the
L
icensee shall be required
to
stop using
the Software
hereunder and shall return all material related to
the Software
to the Licensor.
LIMITED WARRANTY
The
L
icensor warrants that the Software, as delivered to the Licensee, for a period of
___________
[Warranty Period]
days from the date of
the
Software
subscription
(the “Warranty Period”) will perform substantially in accordance with the
D
ocumentation, provided that
:
(a) the Software is used in accordance with
the
Licensor’s hardware and Software guidelines, (b) any error or defect detected is reproducible by
the
Licensor, (c) the performance issue, error or defect does not relate in whole or in part to
t
hird
-p
arty
s
oftware, (d) the error or defect is not caused by a modification carried out by the Licensee, third
-
party products or third
-
party database, and (e) the Licensee notifies
the
Licensor of such non-conformance within the Warranty Period.
The Licensor does not warrant that the Software is error free or that the Software will operate uninterrupted or that all Software errors can or will be corrected or that the applications contained in the Software are designed to meet all of
the
Licensee’s business requirements.
Any supplements or updates to the Software, including without limitation, any (if any) service packs or hot fixes provided after the expiration of the Warranty
P
eriod are not covered by any warranty or condition, express,
implied,
or statutory.
The
Licensee acknowledges and agrees that the Licensor does not warrant that the Software will meet the requirements of any
user
or that the Software will be error-free.
The Licensee shall test the Software with non-critical data before utilising the same. In no event shall the Licensor be liable for damages, direct or indirect, including incidental or consequential damages (including loss of profits) suffered by the Licensee or any third party.
The
Licensor makes no warranty, and
the
Licensee assumes the entire risk as to the integrity of any data and the results, capabilities, suitability, use,
non-use,
or performance of the
Software
. In no event shall
the
Licensor be liable to
the
Licensee for any damages resulting from or related to the use or performance of the
Software
.
This Limited
W
arranty is void if the failure of the Software has resulted from accident, abuse, misapplication or use of
the Software
with incompatible hardware or incompatible operating systems.
LIMITATION OF LIABILITY
U
nder no circumstances shall
the
L
icensor be liable for any indirect, special, incidental, exemplary, punitive or consequential damages suffered by the
L
icensee, any party claiming on behalf of or through the
L
icensee, or any other third party resulting from or arising out of or related to this
A
greement, any addendum hereto or the performance or breach thereof, including without limitation, damages for loss of business or profits, business interruption, damage or loss or destruction of data or loss of use of the
Software
, even if such party has been previously advised of the possibility of such damages.
INDEMNITY
Indemnification by the
Licensor
: If a third party makes a claim against the
Licensee
that the S
oftware
infringes any patent, copyright or trademark, or misappropriates any trade secret, or that the
Licensor
’s negligence or wilful misconduct has caused bodily injury or death, the
Licensor
shall defend the
Licensee
and its directors, officers and employees against the claim at the
Licensor
’s expense and the
Licensor
shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by the
Licensor
, to the extent arising from the claim. The
Licensor
shall have no liability for any claim based on (a)
a
modification of the
Software
not authorized by the
Licensor
, or (
b
) use of the
Software
other than in accordance with the Documentation and this Agreement. The
Licensor
may, at its sole option and expense, procure for the
Licensee
the right to continue use of the SaaS Services, modify the SaaS Services in a manner that does not materially impair the functionality, or terminate the Subscription Term and repay to the
Licensee
any amount paid by the
Licensee
with respect to the Subscription Term following the termination date.
Indemnification by the
Licensee
: If a third party makes a claim against the
Licensor
that the
use of the Software by the Licensee
infringes any patent, copyright or trademark, or misappropriates any trade secret, the
Licensee
shall defend the
Licensor
and its directors, officers and employees against the claim at the
Licensee
’s expense and the
Licensee
shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by the
Licensee
, to the extent arising from the claim.
Conditions for Indemnification: A party seeking indemnification under this section shall (a) promptly notify the other party of the claim, (b) give the other party sole control of the defence and settlement of the claim, and (c) provide, at the other party’s expense for out-of-pocket expenses, the assistance, information and authority reasonably requested by the other party in the defence and settlement of the claim.
Clause 12
shall survive termination of this
A
greement.
NON-SOLICITATION
To the extent permitted by applicable law, for the term of this
A
greement, any renewal period and for a period of
____________
[Non-solicitation period]
years thereafter, neither Licensee nor any officer, director, employee, independent contractor, consultant, agent, or representative of Licensee, shall directly or indirectly solicit, induce, recruit or encourage any employee, developer etc. of the
L
icensor to terminate his or her relationship with the
L
icensor and/or commence working with
the
Licensee or any third party having any relationship with
the
Licensee.
NON-COMPETE
During the term of this Agreement and for a period of
____________
[Non Competition Period] immediately following the termination of this Agreement,
the
Licensee
shall not, directly or indirectly, without the
L
icensor
’s
prior written consent , own, manage, operate, join, control, finance or participate in the ownership, management, operation, control or financing of, or be connected as an officer, director, employee, partner, principal, agent, representative, or consultant of any
e
ntity engaged in
similar business or
develop any Software similar to the Software hereunder and/or compete with the business of the
L
icensor
.
GOVERNING LAW
This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the
[
State
/Province] of [STATE/PROVINCE]
and shall be binding upon the parties hereto in the
United States
and worldwide. Each of the parties hereto irrevocably consents to the exclusive jurisdiction and venue of any federal or state court within
[
State
/Province] of [STATE/PROVINCE]
in connection with any matter based upon or arising out of this Agreement or the matters contemplated herein agrees that process may be served upon it in any manner authorized by the laws of the for such persons and waives and covenants not to assert or plead any objection that they might otherwise have to jurisdiction, venue and such process. Each party agrees not to commence any legal proceedings based upon or arising out of this Agreement or the matters contemplated herein (whether based on breach of contract, tort, breach of duty or any other theory) except in such courts.
SUCCESSORS AND ASSIGNS
Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon the parties hereto and their respective successors, assigns, heirs, executors and administrators.
ASSIGNMENT
The
Licensee shall not have the right to (a) assign this
A
greement, by operation of law or otherwise
,
or (b) subcontract or otherwise delegate the performance of the services without each other’s prior written consent
,
which may be withheld as the
L
icensor determines in its sole discretion. Any such purported assignment shall be void.
ENTIRE AGREEMENT
This Agreement, the exhibits and schedules hereto, the Related Agreements and the other documents delivered pursuant hereto constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof
,
and no party shall be liable for or bound to any other in any manner by any oral or written representations, warranties, covenants and agreements
,
except as specifically set forth herein and therein.
SEVERABILITY
In the event one or more of the provisions of this Agreement should, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
AMENDMENT AND WAIVER
This Agreement may be amended or modified,
and the rights
under the Agreement may be waived, only upon the written consent of
each other.
NOTICES
All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail, telex or facsimile if sent during normal business hours of the recipient, if not, then on the next business day, (c) five days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt.
COSTS AND ATTORNEYS’ FEES
In the event that any action, suit or other proceeding is instituted based upon or arising out of this Agreement or the matters contemplated herein
,
or any other matter relating to the
present Agreement
,
the prevailing party shall recover all of such party’s costs (including, but not limited to expert witness costs) and reasonable attorneys’ fees incurred in each such action, suit or other proceeding, including any and all appeals or petitions therefrom.
TITLES AND SUBTITLES
The titles of the sections and subsections of the Agreement are for convenience of reference only and are not to be considered in construing this Agreement.
COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument.
PRONOUNS
All pronouns contained herein, and any variations thereof, shall be deemed to refer to the masculine, feminine or neutral, singular or plural, as the identity of the parties hereto may require.
This Agreement shall be construed and enforced in accordance with the laws of the [State/Province] of [State/PROVINCE].
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
Authorized Signature Authorized Signature
Print Name and Title Print Name and Title