BIRD DOG CLUB, INC.

SOFTWARE LICENSE AGREEMENT

 

THIS SOFTWARE LICENSE AGREEMENT (the "Agreement") is entered into as of the day of , 2008 , by and between Bird Dog Club, Inc. with offices at 5790 University Drive, Huntsville, AL 35816, referred to as ("BDC") and with offices at (the User).

1. Grant of License. BDC hereby grants to the User, a non-exclusive and non-transferable license to use the web-based software program known as the Bird Dog program and any accompanying user manuals, screen shots, webpages and other instructions (hereafter collectively called the “Software”), only as authorized in this Agreement. The technology and intellectual property embodied in the Software are licensed, not sold, to you by BDC. This Agreement governs any releases, revisions or enhancements to, including, but not limited to, any features or components that enable the Software we may furnish. 

2. Installation of Software. Included within its undertakings hereunder, BDC shall furnish such services as may be reasonably required to access and initially use the Software and enable it to operate in accordance with the User’s stated specifications and in conformity with any specific contractual undertakings contained in this agreement. Custom programming or customization, if required by the client, becomes part of this agreement and is subject to the terms and conditions hereof.

3. Use of Software. This license allows User to use the Software in connection with the dealership location(s) described in the attached Schedule A only.

4. Restrictions on Use of Software. This License does not permit User (a) to license, give, lease, sub-license, sell, rent, assign, or cause any related transfer of the Software; (b) to translate, reverse engineer, decompile, disassemble, modify, or copy (except for the backup copy) the Software; (c) to prepare or market any adaptation or derivative version of the Software; (d) to utilize the Software for time-sharing or service-bureau purposes; (e) to place the Software on any dial-up, remote access, interactive, Internet-based or other on-line service.

5. Non-Exclusive License. User acknowledges that this license is nonexclusive and that BDC will license or grant the right to market and license the use of Software or any similar or related product to other entities, whether or not such entities are or may be in competition with the User.

6. Proprietary Rights. User acknowledges and agrees that all the worldwide rights, title and interest to and ownership of the Software and all related patent rights, copyrights, trademarks, and all other proprietary rights shall remain with BDC. These rights extend to any enhancements or customization made at the User's request unless specifically excluded in writing.  User shall have no right to copy or reproduce in whole or part any data furnished hereunder without the prior written consent of BDC.

7. License Fee. For the license of the Software, the User shall pay BDC according to Schedule A attached hereto.

8. Taxes. In addition to other charges specified herein, User will assume responsibility for and pay all applicable state and local taxes which may be payable by reason of this license.

9. Acceptance Tests. Promptly after BDC’s delivery of the Software, User shall perform the necessary tests to determine if the Software is free from all defects. In the event that such tests establish that the Software does not conform to such requirements, User shall notify BDC in writing, within 10 days of installation, documenting the discrepancies, and BDC shall modify the Software to ensure performance. Should the User fail to timely notify BDC of any discrepancies, a presumption shall arise that the Software has been properly installed and is functioning properly.

10. Initial Training. BDC will provide the User, with training services. User will designate competent and qualified personnel to attend training. BDC shall not be responsible for delays or operational difficulties arising from User’s failure to properly use and operate the Software. BDC shall be under no obligation to support the Software without Users having received training by a BDC authorized trainer.

11. Term; Maintenance and Support Services; Termination. The initial term of the Agreement shall be for one (1) year from the Effective Date.  The Agreement shall be automatically renewed for additional one (1) month periods upon payment of the monthly maintenance fee set forth on Schedule A, or for additional one (1) year periods upon payment of the annual maintenance fee set forth in Schedule A, which ever is applicable.  All maintenance fees hereunder are due upon invoice.  User will receive as part of such support BDC’s designated improvements, enhancements, and updates of the Software. Updates which are made available by BDC to its Users will be  deemed part of this Agreement. Support and maintenance includes, help desk support via telephone, fax, and e-mail access.  In the event the Agreement is not renewed, User shall immediately cease all use of the Software and shall remove from its website and marketing materials any and all references to the Software and all Software-related text, content, artwork and logos. Notwithstanding termination of this Agreement for any reason, the provisions of paragraphs 4, 5, 6, 8, 13, 14, 15, 16 and 19 shall remain in perpetual full force and effect.

12. Additional Software. Additional software applications developed by BDC, which are not enhancements or updates of existing programs (with such determination made solely by BDC) are not included within the  scope of this agreement. Any such new programs shall be made available to the User at BDC’s prevailing standard rates, and if ordered by the User and accepted by BDC, shall be made part of this license by supplement or separately licensed.

13. Warranties.  BDC warrants that for a period of one year from the date of installation of the Software, the Software will be free from defects in materials and workmanship.  This warranty shall only be effective if User provides BDC written notice of defects during the warranty period.  Upon such notice, BDC will, at its option, either repair or replace the defective item.  If BDC is unable, in a reasonable time, to repair or replace any Software to a condition as warranted, User is entitled to a full refund of the purchase price upon return of the Software to BDC.  This warranty applies only to the original purchaser and is not transferable without BDC's express written permission. This warranty becomes null and void if User modifies or alters the Software or product in any way, other than as specifically authorized by BDC.

EXCEPT FOR THE LIMITED WARRANTY DESCRIBED ABOVE, THE FOREGOING CONSTITUTES THE SOLE AND EXCLUSIVE REMEDY OF THE USER AND THE EXCLUSIVE LIABILITY OF BDC AND IS IN LIEU OF ANY AND ALL OTHER WARRANTIES (EXPRESSED OR IMPLIED).  BDC SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING (WITHOUT LIMITATION), ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THIS EXCLUSION MAY NOT APPLY TO USER.

In no event will BDC, its suppliers, or distributors, be liable to User for any incidental, special, punitive, exemplary or consequential damages experienced by either User or a third party (including, but not limited to, loss of data or information, loss of profits, or loss of use).  BDC is not liable for damages for any cause whatsoever (whether based in contract, tort, or otherwise) in excess of the amount paid for the item.  Some states do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to User.

BDC does not make any representation or warranty with regard to the Software’s compliance with any state or local laws and User agrees to hold BDC harmless and release BDC from all liability for any such violation.  User agrees to comply with all local, state, and federal laws regarding the usage of this Software and agrees to obtain all necessary licenses, permits, and authorizations from the appropriate governmental entity for the implementation of the Software.

User’s right to repair or replacement is governed by this Warranty.  Issuance of credit for returned items shall be made at BDC's discretion upon User’s request.  The cost of out-of-warranty repairs is subject to a charge as quoted by BDC.  The cost of the repair will be invoiced to the User.

Modification or alteration to purchased Software by User, other than that specifically authorized by this Agreement or by BDC, shall VOID AND NULLIFY, in its entirety, all warranties as set forth herein.  BDC reserves the right to make progress and design changes in products without prior approval or notification to User and without incurring any obligations or liability to make the same changes in items previously sold to User.

14. Confidentiality of Software Information. The Software and its related technology and formats are commercially valuable proprietary information of BDC, and are confidential information and/or trade secrets disclosed to User on a confidential basis under the terms of this license. User shall not disclose any of BDC’s confidential information to any third party. User shall not decompile, disassemble, or otherwise attempt to extract information about the internal structure or operation of the Software. Except for licensed use of the Software, User agrees not provide or otherwise make available the Software or related documentation including, but not limited to, screen displays, flow charts, logic diagrams, or source code, in any form, to any other person other than authorized employees of User. User shall not demonstrate, or allow access to, the software to any known competitor of BDC without the express written consent of BDC. BDC will regard and preserve as confidential all information related to the business of User, its parent, their subsidiaries, or affiliated companies, that may be obtained by BDC from any source as a result of this license. BDC will not, without first obtaining User's written consent, disclose to any person, firm, or enterprise, or use for its benefit, any information relating to the pricing methods, processes, financial data, lists, statistics or programs, research, development or related information of User, its parent, their subsidiaries, or affiliated companies, concerning past, present or future business activities of said entities. The mutually binding confidentiality requirements of this Agreement shall survive any termination of this Agreement.  The obligations of the parties specified in this section 14 shall not apply, and either party shall have no further obligations, with respect to any confidential information which:  (1) is disclosed pursuant to a specific written requirement of a governmental agency or pursuant to any law requiring disclosure thereof, provided that the non-disclosing party is provided with prior written notice of any such disclosure and given an opportunity to prevent or ameliorate the effects of such disclosure; or (2) is approved for release by written authorization of the non-disclosing party.

15. Opportunity to Cure Breach of Contract.  If either party alleges that the other has committed a breach of this license, the party alleging breach shall give written notice specifying the alleged breach and allow the other party 10 business days from the time of such notice to cure the breach before commencing any further actions.

16. Litigation. If any litigation is commenced between the parties to this Agreement concerning any of the provisions of this Agreement or the rights and duties of any party in relation thereto, the party or parties substantially prevailing in such litigation shall be entitled to recover, in addition to such other relief as may be granted, all reasonable attorney’s fees, costs, and expenses incurred by the prevailing party. The parties agree that a court of competent jurisdiction in Madison County, Alabama shall have full personal jurisdiction over BDC and User in connection with any controversy, claim, or award arising out of this Agreement. Any action commenced which relates either directly or indirectly to the matters set forth in this Agreement shall be commenced in a court of competent jurisdiction in Madison County, Alabama.

17. Indemnification. BDC warrants, as of the date of this agreement, that to the best of BDC’s knowledge, neither the Software nor its associated user manuals and other material necessary for its proper operation infringe any valid patents, copyrights, trademarks, or other proprietary rights of any third parties. BDC warrants, for User’s benefit alone, that BDC owns the Software and all related software delivered hereunder, including all associated intellectual property rights, or otherwise has the right to grant User the rights provided in this license.  In furtherance of said warranty, BDC agrees to defend, indemnify and hold harmless User from and against any claim, suit, demand, or action alleging that the Software or any component thereof infringes a U.S. copyright, patent, trade secret, or any other proprietary right of any third party, and BDC shall indemnify User against all costs, expenses, and damages (including attorneys fees) arising from any such claim, suit, demand, or action; provided, however, that (1) User shall have given BDC prompt written notice of such claim, suit, demand, or action; (2) User shall cooperate with BDC in the defense and settlement thereof; and (3) BDC shall have control of the defense of such claim, suit, demand, or action and the settlement or compromise thereof.  In the event that a temporary or a final injunction is obtained against User’s use of the Software or any portion thereof by reason of an aforementioned infringement claim, suit, demand or action, BDC will, at its option and expense, either (a) procure for User the right to continue using the Software or (b) replace or modify for User the Software or such infringing portion thereof so that it no longer infringes such copyright, patent, trade secret, or other proprietary right, so long as the utility or performance of the Software is not adversely affected by such replacement or modification and the Software continues to materially conform with the Software specifications or (c) refund to the User the purchase price paid by the User for the Software. This Section 17 sets forth the exclusive remedy of User against BDC with respect to any action or claim for an alleged patent, copyright, or other proprietary right infringement by the Software or any component thereof, and this Section 17 shall survive any termination of this Agreement.

User shall indemnify, defend and hold BDC harmless from any claims, demands, liabilities or expenses, including reasonable attorneys’ fees, incurred by BDC as a result of any claim or proceeding against BDC arising out of or based upon (i) the combination, operation or use of the Software by User with any hardware, products, programs or data not supplied or approved in writing by BDC, if such claim or proceeding would have been avoided but for such combination, operation or use, (ii) the modification of the Software by or on behalf of User, or (iii) User’s use of the Software.

18. No Disabling Devices or Viruses. BDC warrants that all present and future software deliverables do not and shall not contain, at the time issued or delivered by BDC to User, any program routine, device, or other undisclosed feature, including, a time bomb, virus, software lock, drop dead device, or other malicious logic, worm, Trojan horse, or trap door, that is designed to delete, disable, deactivate, interfere with, or otherwise harm the deliverables or User’s hardware, data, or other programs, or that is intended to provide access or produce modifications not authorized by User (collectively, “disabling procedures”). Such warranty is intended to apply regardless of whether such disabling procedures are authorized by BDC to be included in such deliverables, with the exception of those copy protection procedures designed to prevent the unlicensed use of the Software.

19.  Trademarks.  For the term of this Agreement, User may place on its website the BDC trademarks, namely the BIRD DOG CLUB mark and the Dog and Hunter logo, for the sole purpose of promoting the Software.  User agrees that all rights in the BDC trademarks are owned exclusively by BDC and that User will not dispute the validity of or BDC's rights in the BDC trademarks. 

20. Miscellaneous. This Agreement, and all of the rights and duties in connection therewith, shall remain confidential and be governed by and construed under the laws of the State of Alabama.  The sole jurisdiction and venue for all disputes, actions, claims or causes of action that relate to this Agreement shall be the state and federal courts located in Birmingham, Alabama, and each party hereby expressly consents to such personal jurisdiction.  This license constitutes the sole and entire agreement of the parties with respect to the subject matter hereof. If any ambiguity is determined to exist herein, said ambiguity shall not be interpreted against either parties since the parties acknowledge full participation in the drafting hereof. This license will be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. 

 

 

 

Bird Dog Club, Inc.                                         

5790 University Drive                                      

Huntsville, AL 35816                                       

           

                       

                                                           

By: Jamie K. Cain                                             By: _______________________________

Print Name: Jamie Cain                                     Print Name:_________________________

Title: President                                                  Title:_______________________________

Date:                            Date:______________________________

 

 

SCHEDULE A

 

License Fees

 

 

Product Description                                                                           Price

 

 

Bird Dog Website Software                                                               $995.001 

Monthly Service Charge (12 month Contract)                                  $299.002  

Monthly Service Charge (24 month Contract)                                  $249.003  

 

 

1 The license fee shall be paid to BDC concurrently with the Users submission of this Agreement to BDC for BDCs review and execution.

 

2  Service charge shall be paid to BDC on a monthly basis for upkeep on server, ongoing training, and continual software updates.

 

3 Service charge shall be paid to BDC on a monthly basis for upkeep on server, ongoing training, and continual software updates.

 

 

 

By filling out this form and printing, you agree to all terms set forth in this agreement.

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