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SOVREN SOFTWARE LICENSE AGREEMENT

Effective Date:  ______________

                                          Agreement No.: ___ ____

This Sovren Software License Agreement (together with all referenced attachments and exhibits, this “Agreement”) is entered into on the Effective Date set forth above by and between the following parties:

Sovren Group, Inc.

1107 FM 1431, STE 205

Marble Falls, TX 78654

Phone: (877) 727-7348

Referred to herein as “Sovren

Name:    _________________

Address: _________________

Phone:   _________________

Referred to herein as “Licensee

This Agreement is comprised of the foregoing Standard Terms and Conditions and the following attachment:

·         Exhibit “A” – Software Order Form

Sovren has developed certain technology for resume and curriculum vitae conversion and parsing.  Licensee desires to use the Software (as defined herein), and Sovren desires to grant Licensee with a license to use the same subject to the terms and conditions set forth herein.

This Agreement sets forth the terms and conditions under which Sovren will provide a license to the Software.  Licensee’s use of the Software is governed solely by the terms of this Agreement (including any Exhibit attached hereto) which supersede the terms of any other prior writing or understanding between the parties.

The parties hereto have read and agree to be bound by the terms and conditions of this Agreement, including those Standard Terms and Conditions contained on the following pages hereof.  Each party warrants that it is authorized to enter into this Agreement and that it may be bound thereby.  In no event shall Sovren be bound to perform until the Agreement is executed by a duly authorized Licensee official.  Presentation of this Agreement to Licensee for signature shall not oblige Sovren to execute this Agreement.

IN WITNESS WHEREOF, the undersigned hereby execute this Agreement, as duly authorized officials for the parties thereof, to be effective as of the Effective Date set forth above.

SOVREN:

 

SOVREN GROUP, INC.

(a Texas corporation)

 

By:

       

       ___________________

        Robert Ruff, President

LICENSEE:

 

                                                             

 

                                                             

 

By:        ______________________________

 

Name:                                                                               

 

Title:                                                                                  


 

STANDARD TERMS AND CONDITIONS

1.                   DEFINITIONS.  As used in this Agreement:

(a)                Affiliate” means in relation to a party, any other person controlling, controlled by or under common “control” with that party (where “control” and related terms mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such party, whether through the ownership or voting securities, by contract, or otherwise).

(b)               API” means Sovren’s application programming interfaces, as well as other Sovren code that allows other software products to communicate with or call on the Software.

(c)                Confidential Information” means any valuable, secret business information, other than Trade Secrets, that is designated or identified as confidential at the time of the disclosure or is by its nature clearly recognizable as confidential information to a reasonably prudent person with knowledge of the Disclosing Party’s business and industry.  Confidential Information” also means information regarding either party’s activities that is not available to the public and that, if disclosed, would likely provide such person with an advantage over the Disclosing Party or other third parties in a transaction with either party or could otherwise be used to the detriment of the Disclosing Party. 

(d)               Defect” has the meaning set forth in Section 9(b).

(e)               Disclosing Party” means the party disclosing any Proprietary Information hereunder, whether such party is Licensee or Sovren and whether such disclosure is directly from the Disclosing Party or through the Disclosing Party’s employees or agents.

(f)                 Dispute” has the meaning set forth in Section 12(j).

(g)                Documentation” means Sovren’s documentation, in any medium, whether delivered physically with the Software or via download from the Sovren Service Marketplace, which is delivered or made available to Licensee in connection with the Software.

(h)               Effective Date” has the meaning set forth on the cover page of this Agreement.

(i)                  End User” means, collectively, the entities and individuals that sublicense the Software from Licensee in conjunction with a Licensee Recruitment System pursuant to Section 2(c) and in accordance with the End User License Agreement.

(j)                 Intellectual Property Rights means any and all rights existing from time to time under patent law, copyright law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.

(k)                Licensee” means the party designated as the Licensee on the cover page hereto.

(l)                  Licensee Indemnified Parties” has the meaning set forth in Section 11(b).

(m)             Licensee Recruitment System” has the meaning set forth in Section 2(c).

(n)               License Fee” means those amounts specified and set forth in the Software Order Form.

(o)               License Key” means a valid license key file issued by Sovren to Licensee to activate and Use the Software.  Each License Key may expire from time-to-time as set forth on the Software Order Form.

(p)               Losses” has the meaning set forth in Section 11(a).

(q)               Mediation Escalation Date” has the meaning set forth in Section 12(j).

(r)                 Object Code” means the machine-readable computer program for the Software.

(s)                Proprietary Information” means Trade Secrets and Confidential Information.

(t)                 Receiving Party” means the party receiving any Proprietary Information hereunder, whether such party is Licensee or Sovren and whether such disclosure is received directly or through the Receiving Party’s employees or agents.

(u)               "Software" means (i) any and all software products licensed to Licensee under this Agreement as specified in Software Order Forms hereto, all as developed by or for Sovren and delivered to Licensee hereunder; (ii) any new releases thereof (including any Sovren-supplied Updates); and (iii) any complete or partial copies of any of the foregoing.  For the purposes of this Agreement, “Software” shall refer to the software product in Object Code only and shall not include the Source Code or any sample code or sample applications made available by Sovren to Licensee at any time.

(v)                Software Order Form” means collectively the order documents representing the initial license to the Software including information on Software and other information necessary for the delivery of such items to Licensee, and that, upon execution, are incorporated in and made a part of Exhibit “A” to this Agreement.  It is contemplated that from time-to-time, the parties may execute a new Software Order Form, the terms of which will be incorporated herein and supersede the previous Software Order Form.

(w)              Source Code” means the plain text readable computer programming code, the associated procedural code, and the Sovren Database and other data contained within or supplied with the Software, Documentation and any Add-Ons or Upgrades thereto.

(x)                Sovren” means Sovren Group, Inc., a Texas corporation.

(y)                Sovren Database” has the meaning set forth in Section 2(f).

(z)                Sovren Indemnified Parties” has the meaning set forth in Section 11(a).

(aa)            Sovren Materials” means any software, programs, tools, systems, data or other materials made available by Sovren to Licensee in the course of the performance under this Agreement including, but not limited to, the Software, License Keys, the Sovren Database, and Documentation as well as any information, materials or feedback provided by Licensee to Sovren relating to the Software and Documentation.

(bb)           Sovren Support Portal” shall mean Sovren's extranet support site regarding its products, currently available at http://wiki.sovren.com/display/SUP/Support+Home, as such may be moved, amended or updated by Sovren from time to time.

(cc)             Specifications” means the performance functions of the Software, all as specifically set forth in the Documentation and applicable to the version relevant to Licensee’s Use, as such may be amended or updated by Sovren from time to time.

(dd)           Term” has the meaning set forth in Section 6(a).

(ee)           Trade Secrets” mean trade secrets as defined under the Texas Uniform Trade Secrets Act, as amended from time to time, and will include, without limitation and without regard to form, technical or non-technical data, a database, a list, a formula, a pattern, a compilation, a program, a software program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, non-public forecasts, studies, projections, analyses, all customer data of any kind, including non-public personal information or information derived from non-public personal information, if such derivation includes or references the non-public personal information in a way that makes it identifiable, or a list of actual or potential customers or Sovren’s, business and contractual relationships, or any information similar to the foregoing which: (i) derives economic value, actual or potential, from not being generally known and not being readily ascertainable by proper means to other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

(ff)              Updates” refers to updated versions (indicated by the sequential numbering of releases for Software), bug fixes, and patches of the Software released commercially.

(gg)            Useand related terms means to activate the processing capabilities of the Software to perform resume parsing services, copy (subject to compliance with this Agreement), load, execute, access, employ the Software.

(hh)           Warranty Period” means that period set forth in Section 9(a).

2.                   LICENSE GRANT.

(a)                Generally.  Provided that Licensee complies with all terms and conditions of this Agreement, Sovren grants to Licensee a revocable, non-exclusive, non-transferable, limited license to Use the Software (and supporting Documentation) for the purpose of performing resume parsing services for Licensee’s internal use to recruit employees, as well as for incorporation into Licensee’s Licensee Recruitment System, if further set forth herein and in the Software Order Form.  The license shall remain in force for the duration of the Term unless terminated sooner in accordance with the provisions herein.  Sovren reserves all rights in the Sovren Materials not specifically set forth herein.

(b)               Use of License.  Licensee’s Use of the Software is to be only as expressly permitted in this Agreement and in a manner and for the purposes for which the Software was designed.  Licensee agrees to install the Software subject to the Specifications requirements as set forth in the Sovren Support Portal.  Licensee shall be exclusively responsible for the installation, configuration, integration with Licensee’s own systems, and all other steps necessary to cause the Software to operate.  Further, Licensee shall be exclusively responsible for the supervision, management, and control of its Use of the Software, including, but not limited to:

(i)                  assuring the proper configuration of Licensee equipment or devices used in connection with the Software;

(ii)                establishing adequate operating methods regarding the Use of the Software; and

(iii)               implementing procedures sufficient to satisfy its obligations for security under this Agreement, including appropriate action between it and its employees to prevent misuse, unauthorized copying, modification, or disclosure of the Sovren Materials.

(c)                Licensee Recruitment System and End User Access.   Subject to the terms and conditions set forth herein and on the Software Order Form, Sovren grants to Licensee (i) a revocable, non-exclusive, non-transferable, limited license to Use the Software (and supporting Documentation) as a component within a Sovren-approved named product or website developed or otherwise provided by Licensee and made accessible to Licensee’s End Users (a “Licensee Recruitment System”); and (ii) a license to sublicense to Licensee’s End Users to Use the Software (and supporting Documentation) in connection with the End Users’ access to the Licensee Recruitment System; provided that, in the event that Sovren grants the licenses set forth in this Section 2(c), the following provisions and restrictions shall apply:

(i)                  Licensee shall obtain an acknowledgement from its customers, which may be contained in the customer agreement or terms of service, that, at a minimum, includes the following restrictions on End Users: (a) End Users shall only use third party software contained in the Licensee Recruitment System (including Sovren Software) in conjunction with the functionalities of the Licensee Recruitment System and not in any independent functionality, (b) End Users are prohibited from engaging in, causing, assisting or permitting, the reverse engineering, disassembly, translation, adaption  or recompilation of any third party software (including Sovren Software) that is included in the Licensee Recruitment System, (c) End Users shall not attempt to obtain or create the source code from the object code of any third party software (including the Sovren Software) provided to End Users as part of the Licensee Recruitment System, unless explicitly permitted by applicable and mandatory law,  and (d) End Users will not use third party software (including the Sovren Software) for any illegal purpose or activity .;

(ii)                Licensee shall not offer End Users of the Licensee Recruitment System alternative software that performs the same or similar functionality as the Software, without the express written consent of Sovren, such consent not to be unreasonably withheld;

(iii)               Licensee makes a continuing warranty to Sovren that it shall not Use the Software in any manner or in any system or business process which would violate any applicable law or Intellectual Property Rights of any third party;

(iv)              the grant by Sovren allowing Licensee to Use the Software as a component within a Licensee Recruitment System shall in no way be construed as Sovren’s warranty or opinion that such Use does not violate the Intellectual Property Rights of any third party or require the consent of any third-party Intellectual Property Right holders; and

(v)                any demonstrated Use of the Software by Sovren or Licensee in sample applications shall in no way be construed as Sovren’s warranty or opinion that Licensee need not research and obtain, at its sole expense, any third-party Intellectual Property Rights that may be applicable to the intended Usages of the Software.

Notwithstanding the indemnity provisions set forth in Section 11, Licensee hereby agrees to indemnify, defend and hold harmless the Sovren Indemnified Parties (defined below) from and against any and all Losses (defined below) incurred by the Sovren Indemnified Parties arising out of or relating to (i) Licensee’s Use of the Software in connection with a Licensee Recruitment System; (ii) any breach of the representations and warranties set forth in this Section 2(c); or (iii) any grant by Licensee to End Users of any representation or warranty of greater scope or in excess of the representations and warranties granted by Sovren to Licensee hereunder.

(d)               Restrictions.  All Uses not permitted under this Section 2 are prohibited.  By way of example and without limitation, in making the Uses permitted in this Section 2, Licensee may not:

(i)                  reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive Source Code from the Sovren Materials or from the resulting information derived from Licensee’s Use of the Sovren Materials;

(ii)                examine the Sovren Materials with debugging, memory inspection, or disk inspection tools;

(iii)               publish, distribute, sublicense, rent, lease or loan the Sovren Materials to any third party or grant any third party access to or Use of the Sovren Materials (except as permitted by Section 2(c));

(iv)              transmit an electronic copy of the Software by any means;

(v)                modify, copy or make derivative works based on any part of the Sovren Materials (except as permitted by Section 2(c));

(vi)              use or resell the Sovren Materials in the operation of a system whose purpose is to sell, provide or distribute resume parsing (or the results of resume parsing in any machine-readable format) to third parties, or;

(vii)             market, offer for sale, distribute, or integrate a product or feature that performs the same or similar functionality as the Software.

(e)               License Keys.  The Software requires License Keys in order to function, and Sovren will provide such License Keys to Licensee to Use the Software for the duration of any then-existing Term upon the terms and conditions set forth in the applicable Software Order Form.  Licensee acknowledges that such License Keys are required in order to Use the Software and that the inclusion of such License Keys is not to be construed as malicious code or a “time bomb.”  Sovren represents and warrants that the Software does not “phone home.”  Licensee understands that the License Keys provided by Sovren are to be regarded as Trade Secrets of Sovren, and Licensee will hold the License Keys in strict confidence as set forth in Section 3.  Licensee will use good faith efforts to integrate the Software in such a way that the License Keys can be updated without the need for additional programming and integration of the Software.

(f)                 Software Database.  The license granted herein gives licensee the right to use a portion of Sovren’s proprietary database (the “Sovren Database”) that includes a culled and organized listing of skills commonly referred to in resumes (“Skills Taxonomies”).  Licensee understands that the Sovren Database is to be regarded as a Trade Secret of Sovren. Licensee agrees not to unencrypt, decompile, reverse engineer, redistribute, copy, transcribe, transmit, modify or otherwise use the Skills Taxonomies. For the avoidance of doubt, Licensee’s Use of the Skills Taxonomies is limited to Use by Licensee solely to configure the Software during Licensee’s Use of the Software hereunder. Licensee agrees to delete any copies of the Skills Taxonomies upon expiration or termination of the License.

(g)                  Sovren Semantic Matching Engine. Solely in the event that Sovren chooses to offer (and Licensee elects to license) the Sovren Semantic Matching Engine (“Sovren SME Software”) by selecting the applicable provision on the Software Order Form, the additional terms and conditions of this section 2(g) of the License will apply.

(i)                  As a condition precedent for delivery and support of the Sovren SME Software to Licensee, Licensee must agree to schedule and attend a minimum of two days of mandatory training covering the Sovren SME Software technology and strategies for integrating the Sovren SME Software (“Training”).

(ii)                Training is to be scheduled at a mutually-agreed time and venue.

(iii)               Licensee is responsible, in advance, for the cost of Training, in addition to the Licensee fees set forth in Exhibit A. Training is $5000.00 per day.

(iv)              If the mutually-agreed venue is more than 200 miles from Austin, Texas, then Licensee is responsible for the travel expenses of Sovren personnel.

3.                   CONFIDENTIALITY OF PROPRIETARY INFORMATION. 

(a)                Obligation.  In the performance of this Agreement, each party may disclose to the other party certain Proprietary Information.  The parties agree to abide by the following terms and provisions regarding the receipt and disclosure of such Proprietary Information:

(i)                  The Receiving Party acknowledges and agrees that the Proprietary Information of the Disclosing Party will remain the sole and exclusive property of the Disclosing Party or a third party providing such information to the Disclosing Party.  The disclosure of the Proprietary Information to the Receiving Party does not confer upon the Receiving Party any license, interest, or right of any kind in or to the Proprietary Information, except as provided under this Agreement. 

(ii)                At all times and notwithstanding any termination or expiration of this Agreement, the Receiving Party agrees that it will hold in strict confidence and not disclose to any third party the Proprietary Information of the Disclosing Party, except as approved in writing by the Disclosing Party.  The Receiving Party will only permit access to the Proprietary Information of the Disclosing Party to those of its employees or authorized representatives having a need to know and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations substantially similar to those contained in this Agreement.  The Receiving Party will be responsible to the Disclosing Party for any third party’s use and disclosure of the Proprietary Information that the Receiving Party provides to such third party in accordance with this Agreement.  The Receiving Party will use at least the same degree of care it would use to protect its own Proprietary Information of like importance, but in any case with no less than a reasonable degree of care, including maintaining information security standards for such Proprietary Information as are commercially reasonable and customary for the type of Proprietary Information.

(iii)               The Receiving Party will not reproduce the Disclosing Party’s Proprietary Information in any form except as required to accomplish the intent of this Agreement.  Any reproduction of any Proprietary Information by the Receiving Party will remain the property of the Disclosing Party and will contain any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by the Disclosing Party.

(iv)              Each party to this Agreement will immediately notify the other party in writing upon discovery of any loss or unauthorized disclosure of the Proprietary Information of the other party.

(b)               Required Disclosure.  If the Receiving Party is required by a governmental agency or law to disclose any of the Proprietary Information of the Disclosing Party, the Receiving Party must, if legally permissible, first give written notice of such required disclosure to the Disclosing Party, make a reasonable effort to obtain a protective order requiring that the Proprietary Information so disclosed be used only for the purposes for which disclosure is required, take reasonable steps to allow the Disclosing Party to seek to protect the confidentiality of the Proprietary Information required to be disclosed, and will disclose only that part of the Proprietary Information which, in the written opinion of its legal counsel, it is required to disclose.

(c)                Exceptions.  The restrictions on use and disclosure of Proprietary Information set forth above will not apply to any Proprietary Information, or portion thereof, that (i) was in the Receiving Party’s possession before receipt from the Disclosing Party; (ii) is or becomes a matter of public knowledge through no fault of the Receiving Party; (iii) is rightfully received by the Receiving Party from a third party without a duty of confidentiality; (iv) is independently developed by the Receiving Party; or (v) is disclosed by the Receiving Party with the Disclosing Party’s prior written approval.

(d)               Effect of Termination. 

(i)                  Upon the termination or expiration of this Agreement, upon written request of the other party, or when no longer needed by either party for fulfillment of its obligations under this Agreement, each party will either: (A) promptly return to the other party all documents and other materials representing the other party’s Proprietary Information (including all physical or electronic copies thereof) in its possession or control; or (B) destroy all documents and other materials representing the other party’s Proprietary Information (including all physical or electronic copies thereof) in its possession or control, each as requested by the other party.

(ii)                Notwithstanding any expiration or termination of this Agreement, all of the Receiving Party’s nondisclosure and use obligations pursuant to this Agreement will survive for three (3) years after expiration or termination with respect to any Confidential Information received prior to such expiration or termination.  With respect to Trade Secrets, nondisclosure and use obligations pursuant to this Agreement will continue for so long as such information continues to constitute a trade secret under applicable Texas law.

(e)               Publicity.  Neither party shall use the name of the other party in publicity, advertising, or similar activity, without the prior written consent of the other, nor shall either party disclose the terms of this Agreement to any third party without the express written consent of the other party.

4.                   PAYMENT.

(a)                License Fee.  As compensation for the license provided in this Agreement, Licensee shall pay Sovren the License Fees specified in the Software Order Form(s) made part of this Agreement or any other commercial term contained in this Agreement.

(b)               Taxes.  All License Fees are exclusive of media charges, shipping, handling, custom charges, and all state, local, and other taxes, or other taxes or charges (other than income or franchise taxes payable by Sovren) directly applicable to the licensing, installation, support or use of the Software.  Licensee shall pay all charges or taxes or provide Sovren with an appropriate certificate of exemption within thirty (30) days of the date of any invoice or statement of Sovren or the taxing authorities.  If Licensee elects to challenge the applicability of any tax or charge, Licensee shall pay the tax or charge to Sovren or give Sovren evidence of payment to the taxing authorities or charging entity, and Licensee may thereafter challenge such tax or charge and seek a refund.

(c)                Invoicing and Payment.  Sovren will invoice Licensee for the License Fee in advance and in accordance with the terms of the relevant Software Order Form.  All payments made under this Agreement will be made in the specific currency set forth in Exhibit A.

(d)               Taxes and Fees. All fees and payments due to Sovren hereunder from Licensee are stated net of any excise taxes, sales taxes, VAT taxes, money transfer taxes, capital outflow taxes, or other locale-specific taxes or fees due of any kind, and Licensee warrants that Licensee will timely report and make all required tax reports and pay all such taxes, with no diminution or deduction from amounts stated herein, and that Sovren shall not be liable for such at any time.

(e)               Audit of Use.  Sovren may, at its expense, audit Licensee’s Use of the Sovren Materials.  Audits shall be conducted during regular business hours at Licensee’s place or places of business and shall not unreasonably interfere with Licensee’s business activities.  Audits shall be conducted no more than once annually.  If, as a result of any such audit, Sovren identifies unauthorized Use of the Sovren Materials, Sovren shall be entitled to any and all remedies provided hereunder, including the immediate termination of this Agreement without refund to Licensee.

5.                   MAINTENANCE AND SUPPORT.

(a)                Maintenance.  Licensee is entitled to technical support for the Sovren Materials through access to the Sovren Support Portal.  Licensee understand and acknowledges that Sovren does not and cannot provide help desk or support to End Users.

(b)               Updates.  Licensee is entitled to any Updates to the Software on a no-cost basis.  Licensee acknowledges that it is the sole responsibility of Licensee to access, install, integrate and otherwise program any Updates into existing versions of the Software.  Sovren is under no obligation to provide Updates on a regular or defined basis except that Sovren will promptly provide an Update to patch or repair any functional instability in the Software which inhibits its commercial usage.

(c)                No Support.  Licensee acknowledges and understands that Sovren is under no obligation to provide any End User support

6.                   TERM.

(a)                Term.  This Agreement and the license granted hereunder shall become effective as of the date first set forth in the applicable Software Order Form which makes reference to and incorporates the terms herein and shall continue in effect thereafter until expiration as indicated by the Software Order Form (the “Term”), unless earlier terminated as provided herein.

(b)               Termination.  This Agreement may be terminated upon the occurrence of the following:

(i)                  by Licensee thirty (30) days after Licensee gives Sovren written notice of Licensee's election to terminate this Agreement, for any reason, but only after payment of all License Fees then due and owing under the Term;

(ii)                by Sovren thirty (30) days after Sovren gives Licensee written notice of Licensee's material breach of any provision of the Agreement (other than Licensee's breach of its obligations under Section 3 [CONFIDENTIALITY OF PROPRIETARY INFORMATION], Section 4(d) [AUDIT OF USE], Section 7 [INTELLECTUAL PROPERTY RIGHTS] or Section 12(c) [ASSIGNMENT AND SUCCESSORS], which breach shall result in immediate termination), including more than thirty (30) days delinquency in Licensee's payment of any money due hereunder, unless Licensee has cured such breach during such thirty-day period, as determined Sovren in its sole discretion; or

(iii)               by either party immediately, if any of the following events remain uncured by the other party for more than sixty (60) days: (A) entry of an order for relief under Title 11 of the United States Code; (B) the making of a general  assignment for the benefit of creditors; (C) the appointment of a general receiver or trustee in bankruptcy of the defaulting-party’s business or property; or (D) action under any state insolvency or similar law for the purpose of bankruptcy, reorganization, or liquidation, unless, within the specified sixty (60) day period, the defaulting-party, its receiver or its trustee in bankruptcy provides to the non-defaulting party adequate written assurances, reasonably acceptable to the non-defaulting party, of the defaulting-party’s continuing ability and willingness to fulfill all obligations under this Agreement. 

For the avoidance of any doubt, termination of the Agreement shall strictly apply to all licenses and sublicenses under the Agreement, its exhibits, schedules, addenda and order documents and any partial termination of the Agreement by Licensee shall not be permitted in respect of any part of the Agreement, its exhibits, schedules, addenda, order documents.

(c)                Effect of Termination.  Upon any termination hereunder, Licensee shall immediately cease its Use of all Sovren Materials and Sovren’s Proprietary Information.  Within ten (10) business days after any termination, Licensee shall irretrievably destroy or upon Sovren’s request deliver to Sovren all copies of the Sovren Materials and Sovren’s Proprietary Information in every form, except to the extent it is legally required to keep it for a longer period, in which case such return or destruction shall occur at the end of such period.  Licensee must certify to Sovren in writing that it has satisfied its obligations under this Section 6(c).  Licensee agrees to certify in writing to Sovren that it and each of its Affiliates has performed the foregoing.  In the event of any termination hereunder, Licensee shall not be entitled to any refund of any payments made by Licensee.

(d)               Survival.  The provisions of Sections 3 and 7-12 shall survive the termination or expiration of this Agreement for any reason.

7.                   INTELLECTUAL PROPERTY RIGHTS.

(a)                Reservation of Rights.  This Agreement is a license for Licensee’s Use of the Software and not a contract of sale for the Software.  The Sovren Materials, and all Intellectual Property Rights embodied in the foregoing, shall be the sole and exclusive property of Sovren or its licensors, subject to any rights expressly granted to Licensee in Section 2.  Except for the rights set forth in Sections 2(c) herein, Licensee is not permitted to modify or otherwise make derivative works of the Software.  Any such unauthorized works developed by Licensee, and any Intellectual Property Rights embodied therein, shall be the sole and exclusive property of Sovren.

(b)               Protection of Rights.  Licensee shall not copy, translate, disassemble, decompile, reproduce, convert, modify, extract create or attempt to recreate the Source Code of the Sovren Materials in any manner.  Reverse engineering of the Sovren Materials and Sovren’s Proprietary Information is prohibited.  Licensee is permitted to back up data in accordance with its reasonable information technology practice and for this purpose to create the necessary backup copies of the Software.  Backup copies of the Software on transportable discs or other data media must be marked as backup copies and bear the same copyright and authorship notice as the original discs or other data media.  Licensee must not change or remove Sovren’s copyright and authorship notices.

8.                   LICENSEE’S REPRESENTATIONS AND WARRANTIES.

(a)                Compliance with Terms.  Licensee shall monitor the Sovren Materials and ensure that the Software’s Use by Licensee is only in compliance with this Agreement.  Licensee shall be responsible and liable for any and all noncompliance with this Agreement by Licensee or by any person or entity who obtains access to the Sovren Materials through Licensee.

(b)               Suitability of Sovren Materials.  At acceptance, Licensee has evaluated, tested, and examined the Software and has determined independently that the Software is suitable for the Use intended by this Agreement.  Licensee assumes all responsibility and risk of selection, installation, use, efficiency and suitability of the Software, and subject to the provisions of Section 9, Sovren shall have no liability therefor.

(c)                Notification of Defects.  Licensee shall notify Sovren of any material Defect (defined below) Licensee believes exists in the Software, and Licensee shall provide to Sovren all information known or reasonably available to Licensee regarding the alleged Defect.

(d)               Third-Party Material.  With respect to all computer programs and data and hardware not provided by Sovren and to be used or reproduced during Licensee’s Use of the Software, Licensee represents that it has all necessary rights to use or reproduce the computer programs and that no Use of the Software in connection therewith shall be made that causes an infringement of the right of any third party.

9.                   LIMITED WARRANTY.

(a)                Warranty Coverage.  Sovren warrants to Licensee that (i) the media on which the Software is furnished will be free from defects in materials and workmanship and (ii) the Software, in unmodified form and when Used as authorized by this Agreement, will perform substantially in accordance with the Specifications, without regard to accuracy, for a period of one hundred (100) days from the date initially delivered to Licensee (“Warranty Period”).  This limited warranty extends only to the Licensee who is the original licensee hereunder.

(b)               Defects.  If during the Warranty Period, Licensee demonstrates to Sovren that the Software does not perform materially in accordance with the Specifications (a “Defect”), then Sovren, within ten (10) days of receiving written notice of such a Defect, shall respond to Licensee with either (i) a statement that Sovren has in good faith and using reasonable efforts not yet been able to duplicate the alleged Defect, or (ii) a plan indicating whether Sovren intends, at its option and expense, to: (A) use commercially reasonable efforts to correct the Defect; or (B) provide Licensee with replacement Software of like functionality.  If Sovren determines that neither of the preceding options is commercially feasible, then Sovren shall return to Licensee any License Fees paid for the Software in question, and in that event, any licenses and sublicenses granted by Sovren to Licensee and/or End Users for the Software shall terminate.  The foregoing represents Licensee’s sole and exclusive remedy and Sovren’s sole and exclusive liability under the limited warranty provided in Section 9(a).

(c)                Limitations.  This limited warranty does not apply if the Software has been altered, except by Sovren, or has not been installed, configured, operated or maintained in accordance with the Documentation and best practices supplied by Sovren or made available at the Sovren Service Marketplace.  Sovren shall have no obligation to provide warranty services if the Defect is caused by a malfunction of non-Sovren hardware or software or by Licensee’s failure to install and use any mandatory bug fixes or other software code provided free of charge by Sovren to Licensee and/or its End User.  Sovren does not warrant or authorize the use of the Software in any specific type of software or business system, software or business process, or software or business method.  In no event does Sovren warrant that the Software is error free or that Licensee will be able to integrate the Software without problems or within any particular timeframe or budget. 

(d)               Not Responsible.  Sovren will not be responsible under this Agreement (i) if the Software is not used in accordance with the Documentation; or (ii) if the Defect or liability is caused by Licensee, a Licensee Add-on, a Licensee Recruitment System, or third-party software.  SOVREN SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM INHERENTLY DANGEROUS USE OF THE SOFTWARE AND/OR THIRD-PARTY SOFTWARE LICENSED HEREUNDER.

(e)               Express Disclaimer.  THE WARRANTIES LISTED IN THIS SECTION 9 ARE THE ONLY WARRANTIES MADE BY SOVREN.  SOVREN MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WHETHER STATUTORY, BY OPERATION OF LAW OR OTHERWISE WITH RESPECT TO THE SOFTWARE OR SOVREN MATERIALS PROVIDED BY SOVREN UNDER THIS AGREEMENT.  SOVREN SPECIFICALLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, ACCURACY AND ANY WARRANTIES ARISING OUT OF USAGE OR TRADE.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SOVREN OR AN AUTHORIZED REPRESENTATIVE OF SOVREN SHALL CREATE A WARRANTY.  LICENSEE WAIVES AND RELEASES ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.  SOVREN DOES NOT WARRANT THAT CUSTOMER'S USE OR ACCESS TO THE SOFTWARE WILL BE ERROR-FREE, UNINTERRUPTED, SECURE, VIRUS-FREE, OR FREE FROM OTHER SECURITY INTRUSION, AND SOVREN DISCLAIMS ANY LIABILITY RELATING THERETO.

10.               LIMITATION OF LIABILITY. 

(a)                No Consequential Damages.  ANYTHING TO THE CONTRARY HEREIN NOTWITHSTANDING, EXCEPT FOR DAMAGES RESULTING FROM UNAUTHORIZED USE OR DISCLOSURE OF PROPRIETARY INFORMATION OR DEATH OR PERSONAL INJURY ARISING FROM SOVREN’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, UNDER NO CIRCUMSTANCES AND REGARDLESS OF THE NATURE OF ANY CLAIM SHALL SOVREN ITS AFFILIATES, AGENTS, REPRESENTATIVES, OR EMPLOYEES BE LIABLE TO LICENSEE OR ANY THIRD PARTY (EXCEPT PURSUANT TO SECTION 11(b)) IN ANY AMOUNT UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, ATTORNEYS’ FEES, COURT COSTS, INTEREST OR EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR TERMINATION HEREOF, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR WARRANTY PROVIDED HEREUNDER.

(b)               Allocation of Risk.  The provisions of this Agreement allocate the risks between Sovren and Licensee.  The License Fees reflect this allocation of risk and the limitations of liability herein and the parties hereto agree that such limitation on liability are fair and reasonable.

(c)                Other Delay.  Sovren will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions beyond Sovren’s reasonable control including but not limited to: a hardware system or operating software that is incapable of performing as specified by the manufacturers, third-party software that interferes with or prohibits proper operation of the Software, or failure of Licensee to properly perform in a timely manner as contemplated herein

11.               INDEMNITY.

(a)                Indemnity by Licensee.  Except as stated in Section 11(b), Licensee shall be solely responsible for, and shall indemnify, defend, and hold harmless Sovren, its affiliates, directors, employees, agents, shareholders, licensees and assigns (collectively, the “Sovren Indemnified Parties”) from and against all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees (collectively, “Losses”), that are incurred by the Sovren Indemnified Parties, arising out of or relating to (i) Licensee’s use of the Sovren Materials in a manner not permitted by this Agreement, not permitted by Sovren, or not in conformance with Sovren written requirements, (ii) the acts or omissions of Licensee, its employees, and agents and all persons or entities who have access through Licensee to the Sovren Materials, or (iii) to an infringement of any right resulting in any way from the Use of the Software with other software not licensed to Licensee by or not expressly approved by Sovren; provided, however, that in order for the Licensee Indemnified Parties to claim relief under this Section 11(a), Sovren must (i) give Licensee written notice of such claim within thirty (30) days of the date the Sovren Indemnified Parties first know or should know of the claim; (ii) provide Licensee with reasonable cooperation and all information in the Sovren Indemnified Parties’ possession related to said claim; and (iii) not agree to a settlement that would adversely affect Licensee’s interests without Licensee’s express written consent 

(b)               Indemnity by Sovren.  Sovren shall indemnify, defend and hold harmless Licensee, at Sovren’s sole cost and expense (including attorneys’ fees and related costs), from any claim made against Licensee, its Affiliates, directors, employees, agents or shareholders (collectively, the “Licensee Indemnified Parties”) that the Software, Source Code, Object Code, Sovren Materials and Licensee’s Use of the Software, in whole or in part (provided such claim arises from the Software alone, such that it does not relate to any feature or functionality that is not provided solely by the Software, and is not a claim against the Licensee Recruitment System), and in accordance with the terms hereunder, violates or infringes any patent, copyright, trademark, trade secret, or other third-party proprietary right, and Sovren shall indemnify and hold harmless the Licensee Indemnified Parties from and against all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees (collectively, “Losses”) incurred by the Licensee Indemnified Parties arising out of or relating to the foregoing; provided, however, that in order for Sovren to provide indemnification  under this Section 11(c), Licensee must (i) give Sovren prompt written notice of such claim for which indemnity is claimed, provided that failure to so notify will not remove Sovren’s obligations except to the extent it is prejudiced thereby; (ii) provide Sovren with reasonable cooperation and information in the Licensee Indemnified Parties’ possession related to said claim at Sovren’s expense; and (iii) allow Sovren complete control in Sovren’s defense or settlement of the claim; and provided that Licensee shall not be required to contribute to any cost and/or expense or otherwise participate or contribute to any settlement, judgment, award, or other relief whatsoever related to any such claim, without its prior written consent.

(c)                Remedy for Claimed Infringement.  If a claim is made that the Software, or any portion thereof, infringes any United States patent, copyright, trade secret, or other proprietary right, Sovren, at its sole expense, shall either: (i) procure for Licensee the right to exercise the rights and licenses granted hereunder with respect to the Software; (ii) modify the Software to make it non-infringing but continue to meet the intended Specifications; (iii) replace the Software with equivalent but non-infringing software of like functionality that meet the intended Specifications; or (iv) terminate this Agreement and, upon the return to Sovren of the Sovren Materials, refund the License Fee paid by Licensee for the Software; provided, however, that the liability of Sovren pursuant to this Section 11(c) shall be subject to the limitations set forth in Section 10 of this Agreement, and Sovren shall have no liability for any claim of infringement based on use of a superseded or altered release of the Software if the infringement would have been avoided by the use of the most current, unaltered Update of the Software which was available to Licensee at the time of the alleged infringement.

(d)               Limitation of Indemnity.  Sovren shall have no liability to the Licensee Indemnified Parties or End User of Licensee for any claim of infringement that is based upon any combination of the Software with software not supplied by or expressly authorized by Sovren if such claim would have been avoided but for such combination; or any modifications to the Software other than releases provided by Sovren or otherwise approved by Sovren.

(e)               Entire Liability.  THIS SECTION 11 STATES THE ENTIRE LIABILITY OF SOVREN AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY AND SOVREN SHALL HAVE NO ADDITIONAL LIABILITY WITH RESPECT TO ANY ALLEGED OR PROVEN INFRINGEMENT OR MISAPPROPRIATION.

(f)                 Notification of Unauthorized Use.  Licensee shall promptly notify Sovren in writing upon its discovery of any unauthorized use or infringement of the Sovren Materials or Sovren’s Intellectual Property Rights with respect thereto.  Sovren shall have the sole and exclusive right to bring an infringement action or proceeding against any infringing third party, and, in the event that Sovren brings such an action or proceeding, Licensee shall cooperate and provide full information and assistance to Sovren, at Sovren’s expense, in connection with any such action or proceeding.

12.               MISCELLANEOUS.

(a)                Notice.  All notices to a party hereunder shall be in writing, and delivered by certified mail, return receipt requested, overnight courier service, or by facsimile with confirmation by the above described mailing methods to the address(es) set forth on the cover page hereof, or to a different address which a party may give written notice of pursuant to this Section from time to time.  Notice will be deemed delivered and received on the date it is actually received.

(b)               Amendment.  This Agreement may not be amended except in a writing executed by authorized representatives of Licensee and Sovren. 

(c)                Assignment and Successors.  This Agreement is not transferable, assignable, delegable, or sublicenseable by Licensee in whole or in part, by operation of law, constructive or actual change of control, event of merger, stock or membership interest sale, sale or disposition of substantially all the assets of Licensee or otherwise, without the prior written permission of Sovren.  This Agreement will be binding upon and inure to the benefit of the parties and their respective successors, trustees, administrators, and assigns.  Licensee agrees to notify Sovren within 10 days of any merger, purchase or other business combination, which has the effect of increasing the recruitment-related system revenues of Licensee by 20% or more. In case of such event, the License price for all subsequent consecutive renewals shall be automatically increased by one-half of the percentage revenue increase from such combination. For the avoidance of doubt, and by way of example only, if Licensee acquires a company whose recruitment-related system annual revenues equal 22% of Licensee’s pre-acquisition recruitment-related system annual revenues, then the price applicable for all future renewals shall be adjusted upward to a price that is at least 11% higher than the then-current License price.

(d)               Independent Contractor; No Authority.  Sovren is acting in performance of this Agreement as an independent contractor and shall have the right to supervise, manage, operate, control, and direct the performance of the details incident to the access of the Service under this Agreement.  Nothing contained in this Agreement shall be deemed or construed to create a partnership or joint venture, to create the relationships of an employer-employee or principal-agent.  Except if specifically stated in this Agreement, neither party, nor any of their respective employees or agents, will have the power or authority to bind or obligate the other party. No third party is a beneficiary of this Agreement.

(e)               Waiver of Rights.  Except where specifically stated to the contrary, all remedies available to either party for breach of this Agreement under this Agreement, at law, or in equity, are cumulative and nonexclusive.  A waiver or failure of either party at any time to require performance by the other party of any provision hereof will not affect the full right to require such performance at any time thereafter.

(f)                 Injunctive Relief.  Notwithstanding any other provision to the contrary contained in this Agreement, Licensee acknowledges and agrees that (i) monetary damages at law are a fully adequate remedy to compensate Licensee for any breach or threatened breach of this Agreement by Sovren, and (ii) an action at law for monetary damages is Licensee's sole and exclusive remedy for any such breach.  No breach by Sovren of this Agreement will entitle Licensee to equitable relief, including specific performance, injunctive relief, rescission or any other form of equitable remedy.  Without limiting the generality of the immediately preceding two sentences, Licensee shall not seek equitable relief to rescind this Agreement or any grant of rights to Sovren hereunder or seek injunctive relief to enjoin or otherwise restrain or limit the production, manufacture, distribution, marketing, advertising, publicity or sale of the Service or any rights therein.

(g)                Severability.  If any provision of this Agreement is, or at any time shall become, inconsistent with any present or future law, rule, regulation, or ruling of any jurisdiction, court, regulatory body, exchange or board having jurisdiction, such provision shall be deemed rescinded or modified by mutual agreement of the parties to conform to such law, rule, regulation or rule and the remaining provisions of this Agreement shall not be affected thereby and shall remain in full force and effect.

(h)               Choice of Law.  This Agreement, the entire relationship of the parties hereto, and any litigation between the parties (whether grounded in contract, tort, statute, law or equity) shall be governed by, construed in accordance with, and interpreted pursuant to the laws of the State of Texas, without giving effect to its choice of laws principles.  This Agreement shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

(i)                  Choice of Forum.  The parties agree that this Agreement is entered into, and that payments under this Agreement are to be tendered in Travis County, Texas, in turn, exclusive venue for any litigation between the parties hereto shall be in Travis County, Texas, and shall be brought in the State District Courts of Travis County, Texas, or in the United States District Court for the Western District of Texas, Austin Division.  The parties hereto waive any challenge to personal jurisdiction or venue (including without limitation a challenge based on inconvenience) in Travis County, Texas, and specifically consent to the jurisdiction of the State District Courts of Travis County and the United States District Court for the Western District of Texas, Austin Division.

(j)                 Dispute Resolution; Mediation.  The parties shall attempt in good faith to resolve any controversy, dispute or claim (each, a “Dispute”) arising out of or relating to this Agreement promptly by negotiation and consultation between themselves.  If the Dispute is not resolved on an informal basis within thirty (30) days after one party provides written notice to the other party of such Dispute (the last day of such time period, the “Mediation Escalation Date), either party may initiate mediation as set forth below.

(i)                  Subject to Section 12(j), the parties may, at any time after the Mediation Escalation Date, submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the Dispute and the relief requested.  The parties shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings.  The parties covenant that they will use commercially reasonable efforts in participating in the mediation.  The parties agree that the mediator’s fees and expenses will be shared equally between the parties.

(ii)                The parties further agree that all offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator and any employees of the mediation service, are confidential, privileged and inadmissible for any purpose, including impeachment, in any litigation, arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation.

(iii)               If the parties cannot resolve for any reason, including, but not limited to, the failure of either party to agree to the selection of a mediator or agree to enter into mediation, any Dispute within sixty (60) days after the Mediation Escalation Date, either party may file suit in a court of competent jurisdiction as set forth in Section 12(i).

(iv)              Notwithstanding the foregoing, nothing contained herein in this Section 12(j) shall require Sovren to commence or complete negotiation or mediation of a Dispute before seeking equitable relief as set forth in Section 12(k) below.

(k)                Equitable Remedies.  Licensee acknowledges and agrees that (i) a breach or threatened breach of any of its obligations would give rise to irreparable harm to Sovren for which monetary damages would not be an adequate remedy; and (ii) in the event of a breach or a threatened breach by Licensee of any such obligations, Sovren shall, in addition to any and all other rights and remedies that may be available to Sovren at law, at equity or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other equitable relief that may be available from a court of competent jurisdiction (as set forth in Section 12(i)), without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy.  Licensee agrees that Licensee will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section 12(k).

(l)                  Force Majeure.  Any failure or delay by Sovren in the performance of its obligations pursuant to this Agreement will not be deemed a default or breach of the Agreement or a ground for termination to the extent such failure or delay is due to computer or Internet or telecommunications breakdowns, denial of service attacks, fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil unrest, rebellions or revolutions in the United States or any nation where the obligations under this Agreement are to be executed, strikes, supplier and third party failure, lockouts, or labor difficulties, or any similar cause beyond the reasonable control of Sovren. 

(m)             Entire Agreement.  This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in this Agreement. The terms located at a URL referenced in this Agreement are incorporated by reference into the Agreement. After the Effective Date, we may provide an updated URL in place of any URL in this Agreement.

We will not be bound by, and specifically object to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) including for example, any term, condition or other provision (a) submitted by you in any order, receipt, acceptance, confirmation, correspondence or other document, (b) related to any online registration, response to any Request for Bid, Request for Proposal, Request for Information, or other questionnaire, or (c) related to any invoicing process, vendor registration process, vendor approval process, scope of work, purchase order, or any other document that you submit to us, reference, or require us to complete.

 

 

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EXHIBIT “A” – SOFTWARE ORDER FORM

 

Product(s):

                                                             

 

Initial Agreement Term:

_____________ through _____________.

 

Initial Fee:

_____________, due upon Agreement execution.

 

Renewals:

_________________________