This AGREEMENT is made as of the Effective Date by and among EBE, Inc. (“EBE”) with offices located at 4430 Kennedy Drive, East Moline, IL 61244, and <Company> with a mailing address <Address 1>, <City>, <State> <Zip> of (<CO Initials>) as Licensee (further defined hereinafter).
WHEREAS, EBE is an Illinois corporation with a business focus to develop and provide value added business processing workflows and document imaging software solutions to the trucking, logistics and warehousing industries.
EBE has presented EBE’s SHIPS application software to be used as a paper replacement, business process workflow, customer service, and management-reporting tool. <CO Initials> desires to license the use of the product. In consideration of the mutual benefits of the covenants and restrictions here contained, EBE and <CO Initials>, hereby agree as follows:
Subject to the EBE Inc. License Terms and Conditions found in Attachment A, EBE hereby grants to Licensee a non-exclusive right and license to use SHIPS solely for Licensee’s internal purposes, in its object code form on the server (of a wide area network) at the physical location listed below.
Physical Location of Required Server
Company: <Company>
Address: <Address 1>, <Address 2>
City, State, Zip: <City>, <State> <Zip>
Licensee Business & Notification Address
Company: <Company>
Address: <Address 1>
City, State, Zip: <City>, <State> <Zip>
<CO Initials> shall submit for EBE’s approval a single subscription agreement. In this Agreement (“Agreement”), you, the subscriber, will receive the license rights granted by this Agreement, shall be referred to as the “Licensee” subject to the terms and conditions of this Agreement. EBE grants Licensee a non-exclusive license to use the accompanying Software (Exhibit A.1) and Documentation. In this Agreement, the term “Licensed Product” refers to the Software and Documentation, in whole or in part, and any whole or partial copies of the Software and Documentation. The Licensed Product is subject to copyrights and contains proprietary information of EBE. Title to each copy of the Licensed Product remains with EBE. Licensee shall not transfer, rent, lease, distribute, disclose or provide remote access to the Licensed Product to Unauthorized Users, and this Agreement shall automatically terminate upon such action. Except as is otherwise permitted in this Agreement, Licensee shall not copy or reproduce the Licensed Product. Licensee may make a reasonable number of copies of the Software and Documentation for the sole purpose of backup, as long as all copyright and other notices are reproduced and included on the archival copy. In addition licensee may also have a copy running for disaster recovery purposes.
For the investment outlined in Exhibit A.1. Licensee shall pay according to terms in Exhibit A-1. Reasonable out- of- pocket expenses incurred by EBE for travel or lodging under this agreement will be invoiced as expenses are incurred. Travel and lodging expenses shall be billed at cost and documented by expense receipts and Licensee shall approve such out of pocket costs in advance. Licensee will pay invoice in full within fifteen (15) days after receipt of invoice, subject to good faith dispute. EBE will bill for any taxes state, local, national or otherwise associated with the SHIPS sale, (except income taxes assessed against EBE), in addition to other charges under this agreement. All monies paid EBE are in U.S. Dollars. EBE will provide a resource to complete the Requirements Definition within three weeks of receiving the initial payment. If Licensee does not provide a resource to complete the Requirements Definition within sixty days from the effective date, monthly billing will begin. EBE will provide a resource to begin the implementation process within three weeks from the time EBE receives a signed Requirements Definition from Licensee. Should Licensee be in default of any payable under this agreement, for a period of time in excess of the receivables period, EBE shall be entitled to interest at a rate of 18% per annum for the duration of the default. The EBE Software may be disabled in default of any payment. The data within the files will remain intact and will remain the property of the Licensee; the disabling of the EBE Software will prohibit entering new data or processing existing data. The EBE Software will be reactivated after payment default has been corrected. If solution is leased, payment terms of lease agreement will apply.
50% of Professional Services are included in the monthly payments for “standard configuration.” Any gaps identified and requested by licensee will be quoted to licensee through a change request. Signed change requests will be invoiced separately and due within 15 days of invoice date.
(a) 50% of Professional Services Fees are due at execution of the Software License. Credit card payments for initial Software License Fees are not accepted.
(b) All other fees including training, consulting, implementation, customization, support and maintenance services are payable at EBE’s standard published rates and due within 30 days of invoice date. All reasonable out-of-pocket expenses incurred by EBE for travel or lodging under this Agreement (i.e. Training, Installation, and/or Consulting) shall be reimbursed by Licensee, net 15 days. The destination and duration of any travel will be pre-approved by Licensee.
(c) All monies paid to EBE are to be paid in US dollars. Should Licensee be in default of any payment, payable under this Agreement, for a period of time in excess of 30 days, EBE shall be entitled to interest at the rate of 15% per annum for the duration of the default, plus a 20% surcharge to defray collection costs. Provided however that such charges shall not exceed the maximum rate established by law. The SHIPS software will be disabled in default of any payment. The data within the files will be intact and will remain the property of Licensee; the disabling of the SHIPS software will prohibit Licensee from entering new data or processing existing data with SHIPS routines. The existing data can be accessed or manipulated utilizing third party software, however, if Licensee chooses to manipulate the data after SHIPS is disabled, EBE disclaims any responsibility or liability relating to lost data or related damages.
(d) Licensee shall, in addition to the other amounts payable under this Agreement, for license, training, or support fees or for any other payables, pay all sales and other taxes, national, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, except those based on EBE’s income.
This EBE Agreement shall only be terminated as provided under this Section. If <CO Initials> violates its obligations under this EBE Agreement, EBE shall have the right to cancel the EBE Agreement by sending Cancellation Notice to <CO Initials>. If EBE violates its obligations under this EBE Agreement, <CO Initials> shall have the right to cancel the EBE Agreement by sending Cancellation Notice to EBE. Upon receiving Cancellation Notice, the receiving party shall have thirty (30) days from the date of such notice to either cure any alleged noncompliance or, if the alleged noncompliance cannot be cured within such thirty day period, to begin curing such alleged noncompliance in good faith. Subject to such opportunity to cure, the cancellation shall be effective as of the thirty-first day next succeeding the date of Cancellation Notice.
EBE will hold harmless and defend Licensee against any patent, copyright, or trade secret infringement claim or suit against Licensee arising from Licensee’s authorized use of the Products in accordance with this Agreement (excluding any modification to the Products not supplied by EBE) provided that Licensee shall (i) give EBE written notice of any allegation of infringement as soon as it is received (ii) permit EBE to control the defense against any such allegation, and (iii) cooperate with EBE’s efforts to defend against such claim.
EBE does not warrant that the execution of the Products shall be uninterrupted or error-free. EBE’s sole obligation under the warranty in this paragraph shall be to correct Products so that they will perform in accordance with the Product documentation manuals, or at EBE’s option, supply <CO Initials> with substituted Products, or portions thereof, which do not breach this warranty. This shall be the sole and exclusive remedy of Licensee as to the subject matter hereof.
EBE shall not be liable for any indirect, consequential, incidental, or special damages due to any failure of any Product to perform in accordance with its performance specifications in the Product documentation manuals (as amended for <CO Initials> by EBE), or EBE’s failure to possess the right to grant this license, or for patent, trademark, copyright, or trade secret infringement. The limitation on damages is agreed and intended by the parties to survive, even if the limited remedy set forth herein fails of its essential purpose. Licensee and EBE agree that the Uniform Commercial Code shall apply, to give full effect to the warranty disclaimers and limitations of liability set forth herein.
EBE’s warranty obligations hereunder are contingent upon reasonably prompt installation of all changes and releases to the Products, provided by EBE to Licensee.
EBE does warrant that the SHIPS application software will conform to the documentation as well as functionality as outlined in the Requirements Definition. SHIPS software is free from significant defects that will prevent it from performing as above described. The SHIPS solution does not contain any “time bombs” or other devices that need to be updated to ensure the software’s continued operations.
EBE warrants that it is the owner of the SHIPS Software or has absolute right to license the Software free and clear of any security interest, lien, claim, or other encumbrance or restriction; and none of the licensed Software, Documentation, nor any use thereof by <CO Initials> in accordance with instructions provided by EBE, will infringe upon or violate any patent, trade secret, service mark, or other proprietary rights of any third party.
Except as described in Payment Section, EBE warrants that the Software is free from any disabling devices or procedures.
EBE warrants that the Software is totally free from any self-destructive mechanism, illicit code, or any copy protection scheme that would interfere with other programs or restrict <CO Initials> ability to exercise its rights and privileges under this Agreement.
EBE warrants that any third-party products are new, not reconfigured, and that such products qualify for the original manufacturer’s warranties.
Title to EBE’s SHIPS Software and the Documentation, including ownership rights to patents, copyrights, trademarks, and Trade Secrets therein, shall be the exclusive property of EBE. <CO Initials> shall prevent disclosure of Trade Secrets, except to persons and organizations expressly authorized in writing by EBE to receive such information. <CO Initials> shall not contest or aid in contesting the ownership or validity of the copyrights, trademarks, service marks, or Trade Secrets of EBE. To the best of EBE’s knowledge, EBE does not infringe upon any third party copyrights. EBE shall not disclose the confidential information of <CO Initials> or its customers as learned by EBE from working with <CO Initials> under this Agreement. <CO Initials> shall prevent removal and alteration of copyright notices and proprietary legends affixed by EBE to EBE’s software. <CO Initials> shall not copy EBE’s software or the Documentation for external purposes, and shall not allow EBE’s software or the Documentation to be copied for external purposes without the prior written consent of EBE. Further, in no event shall either party be liable to the other party for any indirect, incidental, punitive, exemplary, special, or consequential damages arising out of, or otherwise relating to this agreement, or for any claimed negligence, gross negligence, or any claim made by a third party against the other party arising out of this agreement, including reasonable attorney’s fees, court costs, and expenses, except as otherwise specifically provided herein. EBE shall not be liable for any lost profits, or incidental or consequential damages resulting from, or arising out of, implementation, Access or use of EBE’s software or the Documentation by <CO Initials>. EBE shall not be liable for any failure to perform its obligations under this Agreement because of circumstances reasonably beyond the control of EBE, which such circumstances shall include (without limitation) natural disaster, terrorism, war, declarations of governments, transportation delays, failure of the Computer not caused by the software, telecommunications failure, and misuse of EBE’s software or the Documentation. The obligations of <CO Initials> under this Section shall survive termination of this Agreement.
Upon written notice and EBE’s approval, <CO Initials> shall have the right to assign their Rights under this EBE Agreement. Upon written notice and <CO Initials>’s approval, EBE shall have the right to assign its rights under the EBE Agreement. The parties hereby acknowledge that damages at law may be an inadequate remedy, therefore EBE and <CO Initials> shall have the right of specific performance, injunction or other equitable remedy in the event of a breach of this EBE Agreement by the other. Waivers, alterations, modifications or amendments of a provision of this EBE Subscription Agreement shall not be binding unless such waiver, alteration, modification or amendment is in writing and signed by an authorized representative of each party. The parties agree that that in the event there is a controversy arising out of or related to the EBE Agreement, it shall be decided by the Circuit Court of the Fourteenth Judicial District in Rock Island County, Illinois and the parties agree to submit to the jurisdiction and venue of that court. In the event litigation arises out of Licensee’s breech of the EBE Agreement, costs and expenses, including reasonable attorney’s fees, shall be recoverable by the prevailing party. If a provision of this EBE Agreement is rendered invalid, the remaining provisions shall remain in full force and effect. The laws of the State of Illinois govern this EBE Agreement. Notices shall be in writing and shall be deemed delivered in person when delivered by courier or mailed postage prepaid by Certified or Registered Mail, Return Receipt Requested to the person and address designated below. Notice shall be deemed given on the date of receipt as evidenced in the case of Certified or Registered Mail by Return Receipt.
EBE, Inc.
Attn: Larry Kerr
4430 Kennedy Drive
East Moline, IL 61244
<Company>
Attn: <Contact>
<Address 1>, <Address 2>
<City>, <State> <Zip>
Pronouns shall refer to the masculine, feminine, neuter, singular or plural, as the context shall require. If any party must institute, defend, appear or attend a bankruptcy proceeding as a result of the filing of bankruptcy by another party to this EBE Agreement, fees and the filing party shall pay expenses. If any party has a bankruptcy proceeding filed against it, the other parties shall recover attorney fees, expert witness fees, and other costs incurred by such other parties in connection with the bankruptcy proceedings, hearing or trial. Waiver of breach of this EBE Agreement shall not constitute waiver of another breach. Failing to enforce a provision of this EBE Agreement shall not constitute a waiver or create estoppels from enforcing such provision. Nothing herein shall be construed as creating a partnership, employment relationship, or agency relationship between the parties, or as authorizing either party to act as agent for the other. Each party maintains its separate identity. EBE and <CO Initials> as Licensee expressly incorporate in this EBE Agreement by reference, that this EBE Agreement contains the entire understanding of the parties and supersedes previous verbal and written agreements between the parties concerning EBE software licensing.
The following definitions shall apply: Access: The term “access” and variants thereof shall mean to store data in, retrieve data from or otherwise approach or make use of (directly or indirectly) through electronic means or otherwise of EBE software. Cancellation Notice: The term ”Cancellation Notice” shall mean that written notice sent by one party to this EBE Subscription Agreement because of breach by a party thereto. Defect: The term “Defect” shall mean a problem within the base software that inhibits the software to perform to EBE’s documentation. Documentation: The term “documentation” shall mean that certain SHIPS and software User’s Guide as made available to Licensee on the Requisition Date. Effective Date: The term “Effective Date” shall mean the date this EBE Subscription Agreement is signed by EBE. End User: The term “End User” shall mean someone who will not resell Product and will use the Product for his or her own internal purpose. Enhancement: The term “Enhancement” shall mean any change to the base software requested by the Customer. Implement: the term “Implement” and variants thereof (including, but not limited to, the terms “implementation”, “implementing” and “implemented”) shall mean to load and make available for user access. Implementation Date: The term “Implementation Date” shall mean the date SHIPS Server is delivered, brought ready, and capable to receive downloads or scans from <CO Initials>. Licensee: The term “Licensee” shall mean <CO Initials> designated as Licensee. Productive Live Use: The term “Productive Live Use” shall mean the date which is thirty (30) days after SHIPS software is first used by end users for daily operation. Requisition Date: The term “Requisition Date” shall mean the date the EBE Subscription Agreement is signed by EBE. Support Fees: The term “Support Fees” shall mean a fee paid by Licensee for services performed by EBE beyond the scope of EBE’s Software Assurance Agreement. Trade Secrets: The term “Trade Secrets” shall mean the trade secrets of EBE and shall include: (1) all information that derives independent economic value (actual or potential) from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from their disclosure or use, and is the subject of reasonable efforts under the circumstances to maintain its secrecy; (2) SHIPS software; and (3) the documentation. Unauthorized User: The term “Unauthorized User” shall mean any individual who accesses SHIPS software or documentation except for employees <CO Initials> to access EBE software for the purposes of fiche and paper replacement, customer service, management reporting tool, and training employees of a Licensee in the use of SHIPS software. Update: The term “Update” shall mean a revision to the base software provided to the customer under EBE’s Software Assurance Agreement.
