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SOFTWARE LICENSE AGREEMENT

This Software License Agreement (this “Agreement”) is made by and between Company, with its principal place of business at Address1, Address2 (“Licensee”), and InfoSolve, Inc., a Texas corporation with its principal place of business at 8330 LBJ Fwy, Suite B445, Dallas Texas 75243 (“InfoSolve”) (collectively, the “Parties”), effective as of {{_es_:signer:date}}  (“Effective Date”).

RECITALS

WHEREAS, InfoSolve has developed the Software and Other InfoSolve Materials described on the attached Exhibit A which, together with Licensee specific Customization, constitute the Licensed Materials; and

WHEREAS, Licensee desires to obtain a non-exclusive license to use the Licensed Materials in its business as permitted under this Agreement; and

WHEREAS, InfoSolve is willing to grant a license for Licensee to use the Licensed Materials as expressly set forth in this Agreement, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, the Parties agree as follows:

1.                  Definitions

1.1               “Enhancements” means all improvements, extensions, modifications, upgrades, updates, fixes and additions to or of the Software that InfoSolve markets or makes generally available to its customers from time-to-time to correct deficiencies and/or to improve or extend the capabilities of the Software, including all Service Packs and new Releases of the Software.

1.2               “Error” means either (a) a failure of the Software to substantially conform to the Specifications, or (b) a problem in the Software resulting in the inability to use, or restriction in the use of, the Software, which requires new procedures, clarifications and/or additional information.

1.3               “Hardware” means all computer related electronic equipment that meets the Minimum Operating System Requirements specified in Exhibit A, is otherwise suitable for the operation of the Software, and is identified in an exhibit to this Agreement or in a separate purchase order from Licensee to InfoSolve.

1.4               “Major Release” means a new version of the Software released by InfoSolve to its end user customers generally that is identified by a new numeral to the left of the decimal point (e.g., 3.0).

1.5               “Minor Release” means a new version of the Software released by InfoSolve to its end user customers generally that is identified by a new numeral to the right of the decimal point (e.g., 3.1).

1.6               “Release” means a Major Release or a Minor Release.

1.7               “Service Pack” (also referred to as a patch or update) means either a software modification or addition that, when made or added to the Software, corrects an Error, or a procedure or routine that, when observed in the regular operation of the Software, eliminates the practical adverse effect of the Error.  A Service Pack may be designated as “Critical” or “Non-critical” by InfoSolve.

2.                  License Grant; Installation

2.1               Grant of License.  Subject to Licensee’s strict compliance with the terms and conditions of this Agreement, InfoSolve hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited right and license, for the period of time in Exhibit A, to use (a) the object code of the software described in Exhibit A in machine-readable format (the “Software”) solely for internal use in Licensee’s business; (b) the documentation and other materials described in Exhibit A (“Other InfoSolve Materials”) solely for use with the Software; and (c) the Customization described in Section 2.2.  Licensee may install and use the Software only at the locations set forth in Exhibit A (“Site”).

2.2               Customization.  In order to facilitate the Installation and use of the Software, InfoSolve will use commercially reasonable efforts to customize the Software to work specifically and uniquely on Licensee’s system and to better fit the particular needs of Licensee (“Customization”) if, and to the extent, necessary to allow Licensee to make use of the then-current Release of the Software.  The Customization of the Software will not provide any function, procedure, service, or other feature that is not available in the then-current Release of the Software.  To the extent requested by InfoSolve, Licensee will make available to InfoSolve its facilities, computer resources, software programs, networks, personnel, and non-confidential business information of Licensee that are useful to InfoSolve in performing the Customization.  The Customization will substantially conform to the requirements and specifications set forth on Exhibit A  (“Specifications”), which may be changed from time to time upon mutual agreement of the Parties.  The Software, the Other InfoSolve Materials, and the Customization are collectively referred to herein as the “Licensed Materials.”  Hardware is not part of the Licensed Materials.

2.3               Installation.

(a)      InfoSolve will use commercially reasonable efforts to complete set up of the Software, the delivery of the Hardware, and the Customization at the Site within the time frame (if any) set forth in Exhibit A.  Licensee will provide InfoSolve and its employees with physical access to the locations and machines where the Software, the Hardware, and the Customization will be installed (“Locations”) during Licensee’s normal business hours and at other reasonable times, upon request.  Licensee will ensure that its employees cooperate with InfoSolve and InfoSolve’s employees in the Installation.  Licensee will provide InfoSolve and its employees with a safe, comfortable and interference free work environment at the Locations, and there shall be no dangerous conditions at the Locations. Properly functioning HVAC and electricity will be available at the Locations.  Licensee will reimburse InfoSolve for its reasonable out-of-pocket expenses, including telephone, shipping, materials, travel and living expenses, incurred during the Installation.  InfoSolve will invoice Customer for such reimbursable expenses on a monthly basis.  “Installation” shall have occurred when the Software has been installed on the Hardware at the Site or on other hardware possessed by the Licensee and that meets the Minimum Operating System Requirements as set forth in Exhibit A.  InfoSolve may notify Licensee of the date that Installation has occurred and, unless Licensee objects within 10 days thereafter by notice to InfoSolve, Installation shall be deemed to have occurred on the date specified in InfoSolve’s notice. Notwithstanding the foregoing provisions in this Section, the occurrence of Installation shall not be prevented or delayed by InfoSolve’s failure to notify Licensee of the date that Installation has occurred, by Licensee’s objection, or by defects that do not materially impair Licensee’s use of the Licensed Materials.

(b)      If Licensee elects to use InfoSolve’s hosting services described in Exhibit B (the “Hosting Services”), InfoSolve will install a portion of the Software as set forth in Section 2.3(a) above, and the remainder of the Software on InfoSolve’s hardware as set forth in Exhibit B.  If Licensee does not elect to use InfoSolve’s Hosting Services or back-up services, Licensee is responsible for backing up all its data.

3.                  Fees and Payments

3.1               Software Fees.  Licensee will pay to InfoSolve the license fees or Hosting Services fees, as applicable, at the times and in the amounts as set forth in Exhibit A (in either case, the “Software Fees”).

3.2               Hardware Fees.  Licensee will pay to InfoSolve the charges for the Hardware at the times and in the amounts set forth in Exhibit A (“Hardware Fees”).

3.3               Payment Terms.  Any payments due hereunder shall be made in U.S. currency.  Licensee shall pay the amount invoiced by InfoSolve within thirty (30) days of the invoice date without offset.

3.4               Method of Payment.  All payments by Licensee to InfoSolve pursuant to this Agreement shall be made in accordance with the terms as set forth in Exhibit A.

3.5               Late Payment.  Licensee will pay a late fee of 1.5 % per month (or the maximum rate allowed by applicable law if it is less) on any amount not paid when due.

3.6               Taxes, Duties and Import/Export Fees.  The charges do not include any amount for taxes, duties or import/export fees.  Licensee is responsible for, and shall pay or reimburse InfoSolve for the payment of, all sales, use, value added, excise, property, or other taxes or levies, duties or import/export fees, if any, that InfoSolve is required to collect or remit to applicable tax authorities (including any interest or penalties thereon).  This provision does not apply to InfoSolve’s income or franchise taxes.  The Parties shall reasonably cooperate to obtain any applicable exemption certificates that exempt Licensee or the transaction hereunder from the taxes referred to in this Section.  Licensee shall defend, indemnify, and hold InfoSolve harmless from any claims, penalties, fees, and other liability resulting from Licensee’s breach of its obligations set forth in this Section.

4.                  Ownership, Use Restrictions and Intellectual Property Protection

4.1               Ownership.  InfoSolve and its licensors own and shall continue to own (a) the Licensed Materials, (b) any copies of any of the foregoing made by Licensee, including translations, compilations, and partial copies, (c) Proprietary Information of InfoSolve, and (d) any patent rights, copyrights, trade secrets, trademarks, trade names, service marks, designs or design marks or proprietary inventions, designs or information, or other intellectual property or proprietary rights included within or applicable to any of the items described in clauses 5.1(a) through (c).  All suggestions, solutions, improvements, corrections, and other contributions provided by Licensee regarding the Licensed Materials are the property of InfoSolve and Licensee hereby assigns any such rights to InfoSolve.

4.2               Restrictions.  Except as specifically permitted in this Agreement, Licensee shall not and shall not permit or assist others to: (i) use the Licensed Materials for anything other than as specifically authorized in Section 2.1 or in such a manner that would likely enable any unauthorized person to access the Licensed Materials; (ii) make copies of the Licensed Materials; (iii) disassemble, decompile, decipher or reverse engineer the Software or apply any procedure or process to the Software in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for the Software, any trade secret information, process, or other information contained in the Software; (iv) permit any other subsidiaries, affiliated entities, or third Parties access to the Licensed Materials; (v) modify or customize any Licensed Materials in any way or prepare any derivative work based upon any Licensed Materials; (vi) distribute, transfer, lend, sell, lease, rent, sublicense, assign or otherwise transfer any Licensed Materials or portion thereof (except as permitted in this Agreement); or (vii) authorize or permit any person to do any of the foregoing.  No third party software included within the Software may be used separately from the Software or used with any other software not supplied by InfoSolve.  The restrictions set forth in this Section apply equally to attempts to perform the restricted activities.

4.3               Proprietary Markings.  Licensee shall not remove, alter or obscure any of InfoSolve’s (or its licensors’) copyright notices, proprietary legends, trademark or service mark attributions, patent markings or other indicia of InfoSolve’s (or its licensors’) ownership from the Licensed Materials.  Additionally, to the extent reasonably possible, in the event that any Licensed Materials contain InfoSolve’s (or its licensors’) proprietary or copyright notices, Licensee agrees to reproduce and include InfoSolve’s (and its licensors’) proprietary and copyright notices on any copies of the Licensed Materials, or on any portion thereof, including reproduction of the copyright notice.

4.4               Notice of Infringement.  If Licensee knows of any breach of this Article 4 or other unauthorized access to the Licensed Materials, or copyright infringement, trademark infringement, patent infringement or software piracy related to the Licensed Materials, Licensee shall immediately notify InfoSolve.  Licensee further agrees to cooperate with InfoSolve to determine the existence and extent of, and to remedy, any such infringement, piracy, or breach.

4.5               Evidence of Compliance; Right to Audit.  Upon request of InfoSolve, Licensee shall promptly, and in any event within thirty (30) days, provide InfoSolve with any and all evidence reasonably necessary to confirm Licensee’s compliance with the provisions of Articles 4 and 5 hereof.  Licensee shall allow a third party auditor retained by InfoSolve to enter its premises to verify Licensee’s compliance with the provisions of Articles 4 and 5 of this Agreement upon reasonable prior written notice.  If Licensee is found not to be in compliance with this Agreement, Licensee shall pay the reasonable expenses incurred by InfoSolve associated with such inspection and shall promptly take measures to come into compliance.  Such audit shall not be conducted more frequently than once during any twelve (12) consecutive month period unless a violation of Article 4 and 5 is found on a prior audit.  InfoSolve’s rights under this Section shall survive for one year following termination or expiration of this Agreement.

5.                  Proprietary Information

5.1               Definition.  As used in this Agreement, “Proprietary Information” means all confidential information disclosed by one party (“disclosing party”) to the other party (“receiving party”), before or after the date of this Agreement, designated in writing as “confidential” or “proprietary,” or generally not publicly known and which should reasonably be considered confidential, as well as any information generated by the receiving party to the extent that it contains, reflects, or is derived from Proprietary Information.  Proprietary Information of InfoSolve includes the Licensed Materials.  The terms and conditions of this Agreement are the Proprietary Information of InfoSolve; however, the existence of this Agreement is not Proprietary Information.  Proprietary Information does not include information that the receiving party can document:  (i) was rightfully in the possession of or known by it without an obligation of confidentiality prior to receipt from the disclosing party, (ii) is or becomes general public knowledge through no fault or acts of the receiving party, (iii) is or becomes lawfully available to the receiving party from a third party without an obligation of confidentiality or a breach of an existing confidentiality obligation, or (iv) is independently developed by the receiving party without use of any Proprietary Information of the other Party.

5.2               Protection of Proprietary Information.  The receiving party shall hold the Proprietary Information of the disclosing party in strict confidence.  Except as expressly permitted in this Agreement, Proprietary Information may not be copied, reproduced, or distributed, and the receiving party shall not sell, lease, license, assign, transfer, or disclose the Proprietary Information to any third party.  The receiving party shall protect Proprietary Information by using the same degree of care (but no less than a reasonable degree of care) as it uses to safeguard its own confidential or proprietary information of a like nature from unauthorized use, disclosure, or dissemination, including reasonably securing all servers, drives or media on which the Software is installed or maintained.  The receiving party agrees to restrict access to Proprietary Information to only its employees, contractors and third Parties acting on its behalf who (i) require such access in the course of their assigned duties and (ii) are bound by a confidentiality agreement or confidentiality obligations no less stringent than those set forth in this Article.  Without limiting the foregoing, the receiving party shall be jointly and severally responsible for any violation of this confidentiality provision by any of its employees, contractors and third Parties acting on its behalf.  In the event that any Proprietary Information is required to be disclosed pursuant to any law, code or regulation, the receiving party shall (if permitted by law) give the disclosing party immediate notice thereof, shall use commercially reasonable efforts to seek or to cooperate with the disclosing party in seeking a protective order with respect thereto, and shall thereafter only disclose the minimum amount of Proprietary Information as legally required. Licensee acknowledges that InfoSolve collects and aggregates anonymous data across licensees of InfoSolve concerning user behavior, traffic and other interactive information.  InfoSolve may use such aggregated data from Licensee for InfoSolve’s legitimate and reasonable business purpose, including to improve the Software and services it provides; provided, however, that no data will be identifiable to any third party as relating to Licensee, such data containing any anonymous Licensee data will not be sold to a third party, and it will not be possible to use the Licensee data to identify that the information came from Licensee.

6.                  Warranty and Disclaimers

6.1               Performance.  InfoSolve warrants that the Licensed Materials, standing alone without use in combination or conjunction with any third party software, (i) will perform substantially in accordance with the Specifications for a period of 60 days following Installation, and (ii) to the best of InfoSolve’s knowledge at the time of Installation, will not contain any virus, “Trojan horse,” “worm,” or other software routine or hardware component designed to erase, or otherwise harm the Software, Licensee’s hardware or data (collectively, the “Licensed Materials Warranty”).  Notwithstanding the immediately preceding sentence, InfoSolve may include a disabling code in the Software that may only be utilized in the event of a Default by Licensee.  The disabling of the Software is not a failure of performance.  This Licensed Materials Warranty is null and void if the failure of the Licensed Materials has resulted from the use of the Licensed Materials with an operating system that does not meet the Minimum Operating System Requirements set forth in Exhibit A or from an accident, abuse, or misapplication caused by Licensee.  Performance of Hardware is not warranted by InfoSolve and Licensee agrees to look solely to the manufacturer, distributor, seller (other than InfoSolve), or third party warrantor to remedy any defect in the Hardware.  Any claim under the Licensed Materials Warranty must be brought within 90 days following Installation.  InfoSolve’s entire liability and Licensee’s sole and exclusive remedy for a breach of this Licensed Materials Warranty is, at InfoSolve’s option, either (a) return of that portion of the Software Fees paid for the Licensed Materials that do not meet the Licensed Materials Warranty, or (b) repair or replacement of the Licensed Materials that do not meet the Licensed Materials Warranty.

6.2               Authority.  Each Party represents that (i) it has full corporate or other organizational power and authority to execute and deliver this Agreement and perform its obligations set forth herein, and (ii) when executed and delivered, this Agreement will constitute a valid and legally binding obligation of the Party, enforceable against the Party in accordance with its respective terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors or debtors generally.

6.3               Warranty Disclaimer.  THE LICENSED MATERIALS WARRANTY SET FORTH IN THIS ARTICLE 6 CONSTITUTES THE SOLE WARRANTY MADE BY INFOSOLVE WITH RESPECT TO THE LICENSED MATERIALS OR HARDWARE AND IS EXPRESSLY MADE IN LIEU OF ANY OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  REGARDLESS OF ANY COURSE OF DEALING, PROMOTIONAL LITERATURE OR OTHER ACTIONS APPARENTLY CREATING A WARRANTY, INFOSOLVE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, RESPECTING THE PROFITABILITY OR OTHER BENEFITS TO BE OBTAINED BY LICENSEE FROM THE USE OF THE LICENSED MATERIALS AND HARDWARE. INFOSOLVE DOES NOT WARRANT THAT LICENSEE’S USE OF THE LICENSED MATERIALS WILL BE ERROR-FREE OR UNINTERRUPTED.

7.                  Indemnification

7.1               Indemnification by InfoSolve.  InfoSolve shall indemnify, defend and hold harmless Licensee from any claim made by any third party against Licensee that the Licensed Materials, standing alone without use in combination or conjunction with any third party software or apparatus, infringe any U.S. patent, trademark, or copyright of a third party (collectively, “Third Party Rights”); provided that (i) InfoSolve has the right to control such claim’s defense and settlement and (ii) Licensee gives InfoSolve prompt written notice of any such claim after Licensee’s notice thereof and provides reasonable assistance in its defense.  In the event that it is determined by a court or arbitrator or by settlement between the Parties to the claim (provided that InfoSolve has consented to such settlement) that any of the Licensed Materials infringe upon any Third Party Rights, InfoSolve, at its option, shall (a) procure the right for Licensee to continue using such Licensed Materials; (b) replace such Licensed Materials with non-infringing Licensed Materials that substantially meet the Specifications or that are otherwise reasonably satisfactory to Licensee; (c) modify such Licensed Materials so that they become non-infringing and still substantially meet the Specifications or are otherwise reasonably satisfactory to Licensee, or (d) terminate the Agreement and return any unused pre-paid Software Fees actually paid by Licensee.  InfoSolve shall not be liable under this Article 7 if the infringement or alleged infringement arises out of Licensee’s activities after InfoSolve has notified Licensee that InfoSolve believes in good faith that Licensee’s activities may result in such infringement.  The foregoing states the entire liability of InfoSolve with respect to infringement of patents, copyrights, trademarks or other intellectual property rights. InfoSolve’s obligations hereunder specifically exclude any obligations with respect to any patent, copyright, trademark or other intellectual property right outside of the United States.

7.2               Indemnification by Licensee.  Licensee shall indemnify, defend and hold harmless InfoSolve from any claim made by any third party against InfoSolve relating to any breach by Licensee of Articles 4 or 5 hereof or any claim that any software or Proprietary Information provided by Licensee infringes any Third Party Rights.  With respect to any such alleged infringement of Third Party Rights, Licensee has the right to control the defense of such claim, and InfoSolve shall provide Licensee reasonable assistance in its defense at the cost of Licensee.

8.                  Limitation of Liability

8.1               Liquidated Damages.  EXCEPT AS SET FORTH IN SECTION 8.3 BELOW, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, AND EACH PARTY COVENANTS THAT IT WILL NOT ASSERT A CLAIM AGAINST THE OTHER PARTY, UNDER ANY LEGAL THEORY, WHETHER IN AN ACTION BASED ON A CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHERWISE PROVIDED BY STATUTE OR LAW, FOR DAMAGES RELATED TO OR ARISING OUT OF THIS AGREEMENT IN AN AMOUNT THAT EXCEEDS THE TOTAL FEES AND CHARGES PAID BY LICENSEE TO INFOSOLVE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT WHICH GAVE RISE TO SUCH DAMAGES HEREUNDER.

8.2               No Extraordinary Damages.  EXCEPT AS SET FORTH IN SECTION 8.3 BELOW, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, AND EACH PARTY COVENANTS THAT IT WILL NOT ASSERT A CLAIM AGAINST THE OTHER PARTY,  UNDER ANY LEGAL THEORY, WHETHER IN AN ACTION BASED ON A CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHERWISE PROVIDED BY STATUTE OR LAW, FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR STATUTORY DAMAGES, OR ANY DAMAGES RESULTING FROM LOST PROFITS, INTERRUPTION OF BUSINESS, LOSS OF DATA OR PROGRAMS, LOSS OF USE OF COMPUTER HARDWARE, OR LOSS OF GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.3               Exceptions to Limitations on Damages.  Notwithstanding anything in this Agreement to the contrary, limitations on damages shall not apply with respect to a breach of Section 4.2 or Article 5 hereof, license fees and service fees due hereunder, or any claim related to the infringement by Licensee of InfoSolve’s rights in the Licensed Materials.

8.4               Acknowledgement by Parties. The Parties hereby acknowledge and agree that the warranty disclaimers and limitation of liability provisions set forth in this Agreement have been negotiated and are fundamental elements of the basis of this Agreement, and InfoSolve would not be able to license the Licensed Materials or provide the Services to Licensee at the price and on the other terms and conditions offered herein without such limitations.

9.                  Term and Termination

9.1               Term.  The term of this Agreement shall commence on the Effective Date and shall continue in full force and effect until the expiration date (if any) set forth in Exhibit A, unless terminated earlier under another provision of this Agreement.

9.2               Default.  A “Default” means any of the foregoing events:

(a)        A breach of a confidentiality obligation under Article 5;

(b)        A failure by Licensee to comply with the use restrictions and obligations set forth in Section 4.2;

(c)        A breach of any other provision of this Agreement (including substantial failure by InfoSolve to provide the remedies for the Licensed Materials Warranty, as required and set forth in Section 6.1) if such breach is not cured within 30 days after receipt of written notice of such breach by the other party; or

(d)        Becoming insolvent or otherwise being adjudged as bankrupt, making an assignment for the benefit of creditors, having a receiver appointed, or filing a petition of bankruptcy (collectively, “Bankrupt”).

9.3               Change of Control.  For purposes of this Agreement, a “Change of Control” means (i) the transfer of any interest in ownership of Licensee (including any transfer of partnership or member interest, transfers of stock, mergers, and consolidations), whether beneficial or otherwise, and whether voluntary, involuntarily, or by operation of law, (ii) the dissolution of Licensee or the sale of all or substantially all of Licensee’s assets or stock, (iii) a change in the management or control of Licensee (whether through a change in ownership, by appointment, by agreement, or otherwise), or (iv) the divorce, death, or legal incapacitation of any person that owns a majority of the ownership interest in Licensee.

9.4               Transfer.  For purposes of this Agreement, the term “Transfer” means an assignment, transfer, or delegation or an attempted assignment, transfer, or delegation by Licensee of any or all of its rights and/or obligations under this Agreement as a result of or in connection with (i) a sale, (ii) an option to sell, (iii) a contract to sell, (iv) an agreement to sell, (v) a conveyance, (vii) a disposal, (viii) a mortgage, (ix) a pledge, (x) an encumbrance, (xi) a sale by installment purchase contract, or (xii) other assignment, transfer, or delegation, of all or any portion of the Licensed Materials, whether voluntary or involuntary, by operation of law or otherwise.

9.5               Termination.  This Agreement terminates upon the expiration of the License as set forth in Exhibit A and may be terminated prior to such time as follows: (i) upon mutual written agreement of the Parties; or (ii) upon written notice by the party not in Default in the event of any Default.  In addition, InfoSolve shall have the right, but not the obligation, to terminate this Agreement upon written notice in the event of a Change in Control or in the event of a Transfer.

9.6               Effect of Termination.  Upon termination of this Agreement, (a) all license rights granted under this Agreement shall terminate immediately and Licensee shall immediately cease using the Licensed Materials, InfoSolve’s intellectual property and any other of InfoSolve’s Proprietary Information and; (b) Licensee shall pay any and all sums then owing to InfoSolve hereunder within thirty (30) days from the effective date of termination; (c) Licensee shall either return to InfoSolve all Licensed Materials and Proprietary Information (including all copies thereof) then in its possession, custody or control or, at InfoSolve’s election,  destroy all such Licensed Materials and Proprietary Information and certify to InfoSolve in writing such destruction; and (d) Licensee shall not be entitled to any refund of any payments made by the Licensee unless explicitly provided for herein.

9.7               Survival.  The respective rights and obligations of InfoSolve and Licensee that, by their nature, survive the termination of this Agreement, shall continue and remain in full force after the termination of this Agreement, including the provisions set forth in Articles 3, 4, 5, 6, 7, 8, 9, and 10.

10.              Basis of Bargain

The Parties hereby acknowledge and agree that the warranty disclaimers and limitation of liability provisions set forth in this Agreement have been negotiated and are fundamental elements of the basis of this Agreement, and InfoSolve would not be able to provide the Services to Customer at the price and on the other terms and conditions offered herein without such limitations.  The Parties further agree that such provisions will inure to the benefit of the other Party’s successors and permitted assigns.

11.              Miscellaneous

11.1           Independent Contractor.  Licensee and InfoSolve are independent contractors as to each other.  At no time shall either party be deemed to be the agent or employee of the other party, and no joint venture, partnership, agency or other similar relationship shall be created or implied by virtue of this Agreement.

11.2           Severability.  If any portion of this Agreement is determined to be or becomes unenforceable or illegal, (i) such portion shall be deemed eliminated and the remainder of this Agreement shall remain in effect in accordance with its terms as modified by such deletion, and (ii) such unenforceable or illegal portion shall be amended in order to effect, to the maximum extent allowable by law, the original intent of such provision.

11.3           Counterparts.  This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one Agreement.

11.4           Notices.  Any notice or reports required or permitted to be given under this Agreement must be given in writing and must be delivered by personal delivery, facsimile transmission or by certified mail, postage prepaid, return receipt requested, and will be deemed given upon personal delivery, five days after deposit in the mail, or upon acknowledgment of receipt of facsimile transmission to the address for notice set forth in Exhibit A.  Either party may change its address for notice by providing notice of such address change in accordance with this Section.  Notwithstanding the E-SIGN Act, the UETA, or any federal or state statute to the contrary, the Parties agree that electronic mail is intended only to facilitate communications and may not be considered a binding agreement or an official notice or report or other formal communication required to be given under this Agreement.

11.5           Headings.  The article, section, and subsection headings in this Agreement are solely for convenience and shall not be considered in its construction or interpretation.

11.6           Force Majeure.  If the performance of this Agreement or any obligation hereunder (except payment of moneys due) is prevented, restricted or interfered with by reasons outside a Party’s reasonable control, including by fire or other casualty or accident; strikes or labor disputes; inability to procure raw materials, power or supplies; war or other violence; any law, or order proclamation, regulation, ordinance, demand or requirement of any governmental agency or intergovernmental body, such party, upon giving notice to the other party, shall be excused from such performance to the extent of such prevention, restriction or interference.

11.7           Waiver.  No waiver by either party of any term or condition of this Agreement or any breach thereof, in any one or more instances, shall be deemed or construed to be a waiver of such term or condition or any subsequent breach thereof.

11.8           Choice of Law and Forum.  This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of Texas without reference to conflicts of laws rules that would require application of another substantive law.  The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.  All disputes arising out of or relating to this Agreement that cannot be resolved through good-faith discussions between the Parties may only be brought in the state or federal courts located in Dallas County, Texas, and the Parties hereby agree and irrevocably submit to the personal and exclusive jurisdiction and venue of these courts, and further waive and agree not to assert, as a defense or otherwise, that (i) it is not personally subject to the jurisdiction of the above-named courts, (ii) the suit, action or proceeding is brought in an inconvenient forum, or (iii) the venue of the suit, action or proceeding is improper.

11.9           Compliance with Export and Other Laws.  Licensee agrees to comply with all export and re-export restrictions and regulations imposed by the government of the United States and will not commit any act or omission that would result in a breach of such export restrictions.  After delivery by InfoSolve to Licensee, the Licensed Materials will not be exported until and unless Licensee has complied in all respects with all export and re-export restrictions of the United States.  Licensee also shall comply with all other applicable laws and regulations of the United States, states, territories, municipalities, and governmental agencies as they relate to the Licensed Materials, the use of the Software, the employment of the Software to collect information and the use of the information collected, and this Agreement.  Licensee shall defend infosolve from any claim that Licensee has failed to perform its obligations set forth in this Section or that infosolve is in any manner responsible for such failure in whole or in part (even because of infosolve’s negligence, complicity, or strict liability), and licensee shall indemnify and hold infoSolve harmless from all damages, costs, penalties, fees, and liabilities, including attorneys’ fees, resulting from any such claim whether or not the claim is brought in a lawsuit, administrative action, arbitration, or other legal proceedinG.

11.10        Entire Agreement; Amendment.  Each Exhibit and other writings referred to herein or delivered pursuant hereto are hereby incorporated herein as if fully rewritten in this Agreement.  This Agreement, including such Exhibits or other writings, contains the entire integrated agreement between the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, representations or agreements, whether written or oral, with respect thereto.  Except as otherwise provided herein, only a written instrument signed by an authorized representative of each party may amend this Agreement.

11.11        Injunctive Relief; Attorneys’ Fees.  Licensee acknowledges and agrees that InfoSolve will suffer irreparable damage in the event of a breach by Licensee of the terms of Articles 4 or 5 of this Agreement and that InfoSolve will be entitled to injunctive relief (without the necessity of posting a bond) in the event of any such breach. In addition to any other relief awarded, the substantially prevailing party in any action arising out of this Agreement (including any collection action) will be entitled to its reasonable attorneys’ fees and costs.

11.12        Publicity; References.  Licensee agrees (a) InfoSolve may list Licensee as an InfoSolve customer in marketing and promotional materials, InfoSolve’s website and in press releases; provided that InfoSolve obtains written consent from Licensee before using Licensee’s logos, and (b) it will reasonably cooperate in other InfoSolve marketing efforts.

11.13        Assignability.  This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.  InfoSolve may assign, transfer, or delegate its rights and obligations under this Agreement to any third party without the consent of Licensee.  This Agreement is personal and indivisible as to Licensee, and Licensee may not assign, transfer, or delegate, in whole or in part, including by operation of law, this Agreement or any of its rights or obligations hereunder to any person without the prior written consent of InfoSolve.  In the event that InfoSolve’s consent is granted, the use of the Software thereafter shall still be limited to use at the Site set forth on Exhibit A and shall be limited to use within the division, subsidiary or business unit in which the business of Licensee prior to such acquisition is operated.  Any attempt to assign, transfer, or delegate this Agreement or any rights or obligations hereunder that is not made in accordance with this clause shall be void and without effect.

11.14        Terminology.  Unless specifically set forth otherwise, (i) pronouns in masculine, feminine and neutral gender shall be construed to include any other gender, (ii) words in the singular form shall be construed to include the plural and vice versa, (iii) all references in this Agreement to articles, sections and other subdivisions refer to the articles, sections and other subdivisions of this Agreement unless expressly provided otherwise; (iv) the words “this Agreement”, “herein”, “hereof “, “hereby”, “hereunder”, and words of similar import refer to this Agreement as a whole and not to any particular subdivision unless expressly so limited; (v) the use of the word “or” is not exclusive, and whenever the words “include”, “includes”, and “including” are used in this Agreement, such words shall be deemed to be followed by the words “without limitation”; (vi) a “person”  means an individual, corporation, partnership, joint venture, limited liability company, association, joint-stock company, trust, enterprise, unincorporated organization, governmental agency or organization, or other entity, as applicable, and (vii) a reference to any person includes such person’s predecessors and successors.

11.15        No Prejudice Against Drafter.  The provisions of this Agreement are the product of discussion and negotiation by the Parties, and no provision may be construed against either party by reason of its drafting of such provision.

 

Authorized Signatures.

In order to bind the Parties to this Agreement, and recognizing the validity of this document pursuant to the E-Sign Act and the UETA, their duly authorized representatives have signed their names below as of the Effective Date:

Licensee: Company    

InfoSolve, Inc.

By:       {{*_es_:signer1:signature                            }}     By:       {{*_es_:signer2:signature                     }}

Name:  {{*_es_:signer1:fullname                             }}    Name:  {{*_es_:signer2:fullname                      }}

Title:    {{*_es_:signer1:title                                     }}    Title:    {{*_es_:signer2:title                              }}

{{_es_:signer1:date}}                                                   {{_es_:signer2:date}}

Exhibit A
Special Terms and Conditions

1.                  Licensed Software:

  InfoSolve’s proprietary mPower Software, including all Customizations and, if purchased by Licensee under a services agreement with InfoSolve, all Enhancements of the foregoing.

2.                  Site:  Company to include Number of Locations and Lanes (with address of locations)

3.                  Minimum Operating System Requirements:

Processor 800Mhz Intel Pentium III or faster processor.
Memory At least 1 GB.
Operating System Microsoft Windows XP Professional or Windows 7 Professional.
Disk Space   1000 MB minimum. Disk space requirements vary depending on the number of records created.

4.                  Specifications:

  • The Software License includes both the Back Office and Point of Sale programs.
  • The Software will provide the following features:
    • POS
      • Barcode scanning
      • Item lookup
      • Tendering orders
      • Batch Open/Close
      • Tracking commission
      • Returns
      • Gift Cards
    • Customer Management
      • Full purchase history
      • Adding customers to orders
      • Customer groups
      • Promotions
    • Inventory Control
      • Purchase Order creation
      • ToDo list tracking open orders
      • Merchandizing hierarchy
      • Item setup
    • Reporting
      • InfoSolve has a list of reports that can be selected for use covering sales, customers, inventory and taxes.
      • Reports can be filtered by date range, vendor, promotion, location, merchandising level, and SKU
    • Employee/Security
      • Employees will be set up with security information allowing them access only to the information and tasks allowed

5.                  Software Fees.

5.1               Software License Fees:  $Fee Amount [insert either monthly subscription fee or annual license fee, as applicable] OR

5.2       Hosting Services Fees: $Fee Amount [insert either monthly subscription fee or annual hosting services fee, as applicable]

6.                  Professional Services (for initial implementation):  $PS Amount

7.                  Hardware Charges:  $Hardware Amount

8.                  Invoice Terms and Payment:

The Software Fees will be invoiced on [an annual] OR [a monthly] basis, with the first payment being due on the Effective Date.  The Professional Services fees above are due on the Effective Date.  Any additional Professional Services will be invoiced on a monthly basis as the work is performed.

All invoices, except for the initial invoice, are due within 30 days of the date of the invoice.  The initial invoice is due on the Effective Date.  If payment is not received when due, InfoSolve may disable the Software until full payment has been received.

9.                  License Expiration Date:

The license granted in this Agreement shall be for an initial period of one year following the Effective Date unless terminated under Article 9 of the Agreement or unless specified otherwise in an addendum to this Exhibit A mutually agreed to in writing between the Parties.  The license grant will thereafter automatically renew for additional one-year terms unless, upon expiration of the then-current term, (i) Licensee is Bankrupt, or (ii) Licensee is otherwise in Default, or (iii) this Agreement has been terminated in accordance with its terms.  Renewal of the license will not renew, or extend the expiration of, the Licensed Materials Warranty.  If Licensee is paying a Hosting Services Fee, or the Software License Fee on a subscription fee basis, the Software Fees will continue for the renewal period; provided that InfoSolve may annually adjust the Software Fees prior to each renewal term of the Agreement at its reasonable discretion.  If InfoSolve intends to adjust the Software Fee, it will provide the updated amount to Licensee at least 30 days prior to the deadline for Licensee to notify InfoSolve of its non-renewal. If Licensee paid an up-front, one-time Software License Fee, then for the renewal term(s) Licensee will pay the annual support services fee as set forth in the Master Services Agreement between the Parties.

10.              Addresses for Notice:

If to InfoSolve:                                              If to Licensee:

InfoSolve, Inc.
Attn: Patrick Mooney
8330 LBJ FwySuite B445Dallas, TX 75243
Facsimile: 972-234-5856		 Company

Attn: Name

Address1

Address2

Facsimile: Fax

 

Exhibit B
Hosting Services
  1. If Licensee elects to utilize InfoSolve’s Hosting Services, InfoSolve will provide the following:
  2. InfoSolve will host the headquarter SQL database, allowing mPower back office to connect directly to the cloud infrastructure.
  3. InfoSolve will provide database maintenance such as indexing and nightly backups.
  4. Cache. Licensee will ensure that it has a local cache of its data available if the Hosting Services are not available.

 

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