Contract Policy
PROPRIETARY SOFTWARE LICENSE AGREEMENT
for Sports Game Manager(TM) Cybird Inc.
Subject to the provisions contained herein. Cybird Inc.("Cybird Inc" or "Cybird") hereby grants to xxxxxxxx ("Customer") a limited, non-exclusive, non-transferable license (the "License") to use the Licensed Program(s) (one or more hereinafter referred to individually and collectively as the "Licensed Program") identified on Schedule 1 attached hereto and incorporated herein) on the Designated Web Site, subject to the terms and conditions contained herein. Customer and Cybird Inc. may be together referred to as the "Parties".
SOFTWARE
Cybird Inc will set up and host one (1) copy of the Licensed Program for Customer and will provide Customer with necessary line of HTML code to connect Customer's web site to the Licensed Program installed on Cybird Inc Web server. Cybird's hosting responsibilities are limited exclusively to making available the License Program on the Cybird Inc. Web server, and only so long as Customer is current on payment of its Annual Licence Fee and otherwise in compliance with Customer's responsibilities under this Agreement.
GENERAL TERMS AND CONDITIONS
1. LICENSE. Cybird Inc, Inc. hereby grants to Customer a limited, non-exclusive, non-transferable license (the "License") to use the Licensed Program on the Designated Web Site, identified herein above, subject to the terms and conditions contained herein. Except as otherwise provided herein, subject to termination upon a breach of this Agreement by Customer or termination as otherwise may be provided herein, and subject to the timely payment of the fees and charges required hereunder, for the duration of intellectual property protections inherent in the Licensed Program, the term of this License is perpetual, commencing upon acceptance of this Agreement by Cybird Inc.
The Licensed Program is copyrighted and is wholly owned, legally and beneficially by Cybird Inc. and is only being licensed hereunder. The Licensed Program is protected by copyright laws and international copyright treaties. The License granted to Customer hereunder confers no title or ownership rights in the Licensed Program and is not a sale of any rights in the Licensed Program.
2. USE. Cybird Inc will conduct the setup of the Licensed Program. The Customer shall be exclusively responsible for the supervision, management and control of its use of the Licensed Program, including without limitation; (i) assuring proper machine Internet configurations, audit controls and operating methods: (ii) establishing adequate backup plans, based on alternative procedures and access to qualified programming personnel; and (iii) implementing sufficient recovery procedures and checkpoints to satisfy its requirements for security and accuracy of input, as well as, system restart and recovery in the event of a malfunction. Customer shall not disable any licensing or control features of the Licensing Programs or allow the Licensing Programs to be used with such features disabled. Customer shall, at its own expense, indemnify and hold Cybird Inc. and its shareholders, directors, officers, employees and agents harmless from any and all damages, losses, costs and expenses (including Cybird Inc.'s attorneys fees), and all actions, lawsuits, causes of action, arbitration proceedings, administrative and regulatory proceedings, and all other proceedings, and all orders, injunctions and judgments incurred, commenced, made or suffered as a result of Customer's performance or failure of performance of Customer's obligations in this paragraph 2. Said indemnity shall survive any expiration, termination or cancellation of this Agreement.
Notwithstanding anything to the contrary in this Agreement, the License for use of the Licensed Program extends only to Customer's use of the Licensed Program in Customer's principal business activity. In no event may the Licensed Program be used to process information by or for the benefit of third parties.
The Customer may change the Designated Web Site providing access to the Licence Program (s) to any other domain name of the Customer or a subsidiary, provided that in each case the Customer gives timely written notice thereof to Cybird Inc. During the term of this Agreement, and at any given time, the Customer is authorized to use the Licensed Program on only one (1) of the Customer's domain names.
This Agreement and the License may not be assigned or sub licensed by the Customer, and all attempts to do so shall be void ab initio and shall also constitute cause for Cybird Inc. to immediately terminate the License and all Customer's rights hereunder. The Customer shall not copy or otherwise reproduce or develop or have a third party develop the Licensed Program, or any part thereof (except such copying, strictly limited in number, as is essential for system backup, testing, maintenance or recovery purposes). Customer shall not (i) modify, rent, sell, lend, distribute or transfer any part of the Licensed Program except as expressly provided in this Agreement; (ii) reverse engineer, decompile, adapt, translate, create derivative works, decipher, decrypt, disassemble, or otherwise attempt to discover the source code of the Licensed Program or convert the Licensed Program to a more human-readable form for any reason; or (iii) use the Licensed Program for any purpose that is unlawful or against public policy as determined by Cybird Inc. in its sole reasonable discretion.
No provision under this Agreement grants any right to Customer to use any trademark or service mark owned by Cybird Inc, and any attempt to do so by Customer shall constitute a breach of this Agreement and cause for Cybird Inc. to immediately terminate the License and Customer's rights hereunder. The prohibition of the immediately preceding sentence shall not diminish the rights of Customer to use the License in accordance with the other terms of this Agreement.
3. CONFIDENTIALITY. The ideas and the expressions hereof contained in the
Licensed Program are confidential, proprietary information and trade secrets that the Customer will receive in confidence. The Customer shall not in any manner or form disclose, provide or otherwise make available, in whole or in part, any Licensed Program to any third parties except for Customer's employees and consultants on the condition Customer obtain from said employee(s) or consultant(s) a written instrument binding them to such non-disclosure obligation.
Subject to Customer's obligation of confidentiality with respect to the Licensed Program as set forth in the immediate preceding paragraph, the Parties acknowledge and agree that all Parties' information is confidential to each Party and will not be disclosed to unauthorized third parties. The Parties will use the same standard of care, and will bind their employees, agents or representatives to such standard, to prevent disclosure of such confidential information as each uses to protect its own confidential information and trade secrets.
The obligations expressed within this Section 3 shall survive termination and expiration of this Agreement.
4. WARRANTIES. Cybird Inc warrants that (i) it may lawfully grant the License, (ii) neither the Licensed Program, or the use thereof within the scope of the License, infringes a patent or copyright or to Cybird Inc.'s actual knowledge as of the date of this Agreement or is claimed to be a trade secret of any person who has not consented to the granting of the License, (iii) at the time of installation, and for so long thereafter as Customer is required to pay and does pay Annual Reset and Service Plan Fees hereunder, the Licensed Program, will substantially conform to applicable printed documentation (i.e., all licensed materials, including user guides and reference manuals) delivered by Cybird Inc to the Customer; (iv) to Cybird Inc.'s actual knowledge the Licensed Program does not contain any virus, time bomb mechanism or other software or code that can disable or adversely affect any and all of the Licensed Program or destroy any data or other software; THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. No employee or agent of Cybird Inc is authorized to give a greater or different warranty.
5. INDEMNIFICATION. Cybird Inc, at its own expense, will defend
and indemnify Customer against any action for direct actual damages (and expressly excluding any responsibility for special, incidental and consequential damages) brought against the Customer based on a claim that a Licensed Program infringes a United States patent, copyright or trademark, conditioned upon and provided that (i) within thirty (30) days of any such claim Customer notifies Cybird Inc. in writing of notice of said claim; and (ii) Cybird Inc shall have the exclusive control of the defense of any action on such claim and all negotiations and decisions as to, and for, its settlement or compromise, including without limitation, selecting legal counsel for such defense. Notwithstanding anything to the contrary in this Agreement, the Customer shall permit Cybird Inc, at Cybird Inc's sole option at its discretion and expense, either to (A) procure for the Customer the right to continue using the Licensed Program; (B) modify the Licensed Program so that it becomes non-infringing; or (C) refund to Customer the amount equal to the Annual Licensed Fees for the immediately preceding twelve (12) months.
6. LIABILITY; LIQUIDATED DAMAGES. Except as expressly provided in Section 5 above, to the maximum extent permitted by applicable law, in no event will Cybird Inc. be liable for any damages whatsoever, whether direct, indirect, special, incidental or consequential damages, whether arising under contract, tort (including without limitation, negligence), strict liability, breach of warranty, misrepresentation, statutory right (if waivable), or otherwise, including without limitation, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss, arising out of the use of or inability to use the Licensed Program, the performance of the Licensed Program, or arising out of this Agreement, even if Cybird Inc. or its representative has been advised of the possibility of such damages. Some states do not allow the exclusion or limitation of damages in certain transactions, and in such states, the above limitations and exclusions may not apply. Where the exclusion or limitation of liability as above described is not permitted under the applicable law of the transaction, then except as provided for in Section 5 above, the Parties agree that it would be difficult or impossible to ascertain the damages to Customer under any claim it may make against Cybird Inc. in connection with this Agreement, but the Parties agree that a reasonable amount of liquidated damages to be paid to Customer upon a successful claim against Cybird Inc. for any cause whatsoever, and regardless of the form of action, shall be the amount equal to one-half of the License Fees paid by the Customer hereunder with respect to the affected Licensed Program for the most recent 12 month period. Notwithstanding anything to the contrary set forth in this Agreement, Cybird Inc.'s obligations to perform under this Agreement shall be abated during the time of any interruption, inhibition or disturbance of such performance caused by civil disturbance, war, acts of terror, interruption of the internet or world wide web, acts of nature, natural disasters, labor strikes or slowdowns, failure of utility services, or any other causes not reasonably within the control of Cybird Inc.
7. ANNUAL RESET AND SERVICE PLAN. Upon due and punctual payment of the applicable Annual Licence, the Customer shall receive:
Updates: From time to time Cybird Inc may issue modified or enhanced versions of the Licensed Program, herein referred to as a "Updates", and subject to the other provisions of this Agreement, Cybird will automatically set up such updates for Customer's benefit. Updates will only be issued to Customers who have a current Annual Licence in effect. Cybird Inc shall have no obligation hereunder to furnish the Customer with separately priced components to a Licensed Program or Licensed Materials except as explicitly described in this License Agreement, unless Customer has entered into an additional License Agreement for such separately priced components.
Service: Upon receipt of telephone or written notice(s) from the Customer specifying failures or errors found in the Licensed Program, and upon receipt of such additional information as Cybird Inc may request, Cybird Inc. will make its best effort to correct defects in the Licensed Program, as long as it has not been altered by Customer. Cybird Inc will make its best efforts to provide hotline support services during normal business hours, Monday through Friday (8:30 AM - 5:30 PM, Eastern Time). Cybird Inc shall not be obligated to perform investigation and/or correction of defects found by Cybird Inc to be (i) in other than a current release of the Licensed Program which has not been altered by the Customer, or (ii) caused by negligence or modification of the Licensed Program or use thereof in combination with software not provided by Cybird Inc.
The Annual Reset and Service Plan will automatically renew on an annual basis. Other than a Customer that has exercised the License Buyout Option, Customer shall pay for each renewal period of the Annual Reset and Service Plan, the then current Annual Reset and Service Plan Fee as quoted to its customers by Cybird Inc. for such Annual Reset and Service Plan, unless the Customer elects not to renew the Annual Reset and Service Plan by providing written notice to Cybird Inc no less than thirty (30) days prior to the expiration of the then current Annual Reset and Service Plan term. Cybird Inc will deliver to Customer an invoice for the next Annual Reset and Service Plan renewal term approximately sixty (60) days prior to the expiration of the Annual Reset and Service Plan term. Failure of Cybird Inc. to timely deliver said invoice to Customer shall not diminish Customer's obligations under this Agreement. Said invoice shall be due and payable within 60 days of its date. Upon the execution of this Agreement, or with respect to any renewal term of the Annual Reset and Service Plan, Customer may purchase a Multi-Year Annual Reset and Service Plan by paying in advance to Cybird Inc Annual Reset and Service Plan Fees for two or more years and receiving a maintenance prepayment discount that may then be in effect, as such fees and discounts are then generally quoted by Cybird Inc. to its customers.
Notwithstanding the above, for the first three (3) years after the date of this Agreement, the annual Annual Reset and Service Plan Fees shall not be increased. Thereafter, the Annual Reset and Service Plan Fees shall be as quoted by Cybird to its customers generally at said time.
8. PAYMENT. Except as otherwise expressly stated in this Agreement, all Annual License Fees & Annual Data Set Up Fees, and other fees and charges referenced in this Agreement are due and payable as described in Schedule 1 of this Agreement. If the due date of any fee or charge under this Agreement is not otherwise stated herein, then such fees and charges hereunder are due and payable in full upon receipt of Cybird Inc.'s invoice to Customer. Customer will be charged interest at the rate equal to the lesser of (a) one and one-half percent (1-1/2%) per month, or (b) the maximum rate permitted by applicable law, on all sums hereunder which remain unpaid thirty (30) days after due, with such interest to commence on the due date.
9. TERMINATION. Cybird, Inc. shall be entitled to terminate the License as expressly stated in this Agreement, or in the event Customer otherwise breaches the terms of this Agreement. Termination of the License because of a breach by Customer shall take effect immediately upon Cybird Inc.'s termination notice to Customer. Upon such termination, Customer shall not be entitled to any refund of the Annual License Fees, Annual Data Set Up Fees, or other fees and charges referenced in this Agreement, nor shall Customer be released from its obligation to pay any Annual License Fees, Annual Data Set Up Fees, and other fees and charges referenced in this Agreement otherwise payable under this Agreement. Upon termination Customer shall immediately cease using the Licensed Program.
10. Acknowledgment. The Customer acknowledges that he has read this Agreement, understands it and agrees to be bound by all terms and conditions hereof.
11. Amendments. All modifications, amendments, and waivers to this Agreement must be by written instrument, executed by an authorized representative of the parties hereto.
12. Severability. In the event that any provision under this Agreement shall be deemed illegal or otherwise unenforceable by any applicable statute or rule of law, such provision shall be omitted and the entire Agreement shall not fail on account thereof and the remainder of the Agreement shall continue in full force and effect.
13. Waiver. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any other breach of any other provision hereof.
14. Notices. All notices and other communications hereunder shall be in writing and shall be deemed given (a) upon delivery if by personal delivery or by over-night express mail, such as Federal Express; or (b) two (2) days after deposit in the U.S. mails of a certified mailing with return receipt, postage paid, addressed to the party to be notified at the address set forth in this Agreement, or, if to Cybird Inc, addressed to Chief Executive Officer, Cybird Inc, Inc., 959 E. Colorado Blvd, Pasadena, CA 91106.
15. Governing Law. This Agreement is governed and construed by the laws of the State of California, excluding its conflicts of laws rules.
16. Integrated Agreement. This Agreement, including all Schedules, Addenda, and purchase description(s) attached hereto, represents the complete and exclusive statement of the agreements between the parties and supersedes all prior agreements and representations between them.
17. Conflicts. In the event of conflict between General Terms and Conditions, or in Schedule 1 and the Addenda attached hereto, the following order of priority of control (with first stated being the top priority) shall apply: Schedule 1, Addenda, and then General Terms and Conditions.
18. Attorneys' Fees. Notwithstanding anything to the contrary in this Agreement, if there is any litigation to enforce any provisions or rights arising under this Agreement, the unsuccessful Party in such litigation, as determined by the court, agrees to pay the successful Party, as determined by the court, all costs and expenses, including, but not limited to, reasonable attorneys' fees incurred by the successful Party, such fees to be determined by the court and not by a jury.
19. Construction. The terms and provisions of this Agreement represent the results of negotiations among the Parties, each of which has been or has had the opportunity to be represented by counsel of such Party's own choosing, and neither of which has acted under any duress or compulsion, whether legal, economic or otherwise. Consequently, the terms and provisions of this Agreement shall be interpreted and construed in accordance with their usual and customary meanings, and each Party hereby waives the application of any rule of law which would otherwise be applicable in connection with the interpretation and construction of this Agreement that ambiguous or conflicting terms or provisions contained in this Agreement shall be interpreted or construed against the Party whose attorney prepared the executed Agreement or any earlier draft of the same.
20. Time of Essence. Time is of the essence of this Agreement.
21. Headings and Counterparts. The headings of this Agreement are for reference only and shall not limit or define the meaning of any provision of this Agreement. This Agreement may be executed in any number of counterparts, all the counterparts shall be deemed to constitute one instrument and each counterpart shall be deemed an original. The Parties agree that this Agreement may be transmitted between them via facsimile. The Parties intend that the faxed signatures constitute original signatures and that a faxed agreement containing the signatures (original or faxed) of all Parties is binding upon the Parties.
22. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors in interest and permitted assigns. In the event Cybird Inc. is purchased, Cybird Inc. shall continue to be bound by, and honor, the terms of this Agreement. In the event a third party purchases the assets of Cybird Inc., including this Agreement, said purchaser may acquire the rights under this Agreement only upon its assumption of Cybird Inc.'s obligations under this Agreement. In the event Cybird Inc. permanently closes its business other than in connection with the purchase by a third party of Cybird Inc.'s assets including this Agreement, Cybird Inc. will provide Customer a copy of the Licensed Program for its continued use without further consideration, provided that Customer agrees in writing not to make any claim whatsoever against Cybird Inc., its owners, directors, officers, employees, agents, successors or assigns. This Agreement is effective upon execution by Customer and acceptance by Cybird Inc.
SCHEDULE 1
Product Pricing, Configuration and Service Schedule
A. Licensed Program set up:
Customer is fully responsible for providing the files containing Customer existing data required for the operation of the Licensed Program.
B.Customization Services:
Licensed Program can be partially customized at the time of first set up and at the time of Annual Reset to accommodate Customer specific Rules. Customization is limited to the following services:
-the implementation of one unique Referee Assignment rule, together with the embedded Manual Assignment feature.
-the implementation of one unique Tie-breaker rule based on any specific criteria already available in the Licensed program.
-the masking and disconnection of any information available on the Team Page other than the Team Schedule.
C. Payment Terms:
Fifty Percent (50%) of all the Annual License Fee [***] is due and payable upon execution of this Agreement; the balance of said Annual License Fee is [***] due and payable thirty (30) days after delivery of the Licensed Program to Customer. Each subsequent Annual License Fee and Annual Data Set Up Fee (where applicable) shall be due and payable not later than each subsequent anniversary date of this Agreement.
ADDENDUM
ACCEPTANCE PERIOD
Subject to, and in accordance with the terms and conditions of this Addendum, this License may be canceled at any time during the first forty-five (45) days following installation of the complete Licensed Program (such installation to occur within approximately thirty (30) days subsequent to delivery of the Licensed Program), if the Licensed Program does not perform substantially as described in the technical documentation provided by Cybird Inc. as part of the Licensed Materials (i.e. User Guides and Reference Manuals), or as described in the various marketing materials which may have been provided to Customer by Cybird Inc. For the purposes of this Addendum, "installation of the complete Licensed Program" occurs upon Customer's execution of the Installation Verification form (to be provided to Customer upon Licensed Program delivery), and shall not include the installation of any additional customizations to be delivered to Customer.
In the event that the Licensed Program does not perform substantially as described in the technical documentation provided by Cybird Inc. as part of the Licensed Materials (i.e. User Guides and Reference Manuals), or as described in the various marketing materials which may have been provided to Customer by Cybird Inc and as a result Customer desires to terminate this License as herein above permitted, Customer shall provide Cybird Inc with written notice of its intent to cancel ("Cancellation Notice"), including a detailed explanation of each area of unsatisfactory performance of the Licensed Program. A Cancellation Notice that does not contain such detailed explanation shall be void. Cybird Inc shall have forty-five (45) days after a Cancellation Notice in which to cure such unsatisfactory performance, in which case said Cancellation Notice shall be deemed withdrawn and of no further force or effect. Failure by Cybird Inc to effect said cure within forty-five (45) days after a Cancellation Notice shall result in immediate cancellation of this License.
If Customer cancels this License under the provisions of this Addendum, Customer agrees to pay Cybird Inc a cancellation fee of one thousand dollars ($1,000.00) (the "Cancellation Fee") in consideration of the set up and any training and consulting services provided prior to cancellation. In the event of cancellation, if Customer has paid any License Fee under this Agreement, Cybird Inc shall promptly refund said license fee paid by Customer for said License, minus the Cancellation Fee amount and any other charges or fees otherwise payable to Cybird Inc.