Master License Agreement
This Master License Agreement (“Agreement”) is entered into as of ____________ (“Effective Date”) and is by and between Victory Gin Data, LLC (“Licensor”) and ______________________ e(the “Licensee”).
NOW THEREFORE: The parties agree as follows:
Section 1. Definitions.
As used in this Agreement, the following terms shall have the meanings set forth below:
- “Agreement” means this Master License Agreement.
- “Confidential Information” means any business contact, potential business affiliation, information, technical data, or know-how, including by example and not limitation but not limited to, that which is related to research, products, services, customers, markets, Material, developments, inventions, processes, designs, drawings, engineering, marketing or finances provided by one party. Confidential Information does not include the fact that Licensor and Licensee have entered into a business relationship or information, technical data or know-how which (i) is in possession of the receiving party at the time of disclosure as shown by the receiving party’s files and records immediately prior to the time of disclosure; (ii) prior to or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the receiving party; (iii) is approved for release in writing by the disclosing party; (iv) information that qualifies as a Trade Secret.
- “Cure Period” means the period of time given to a party to cure any breach of a material term of the Agreement. The Cure Period is ten (10) days following receipt of the written notice specifying the breach. If such breach is not reasonably curable within such ten (10) day period, the non-breaching party shall not unreasonably withhold approval of a longer Cure Period provided the breaching party promptly commences to cure such breach and continues to diligently pursue a cure of such breach. The breaching party will provide written notice to the non-breaching party once the breaching party believes it has substantially cured the breach that were described in the breach notice to the breaching party. Within seven (7) days of receipt of the notice of cure, the non-breaching party shall provide written certification (i) such breaches have been remedied or (ii) such breaches are not remedied and describe in reasonable detail the breaches that remain and whether or not the Cure Period shall be extended or the Agreement shall be terminated. The Cure Period ends upon the earlier of: (1) such ten (10) days or such longer cure period as the non-breaching may approve as provided above; and (2) by Licensee’s written certification of cure or termination.
- “Licensed Material” means “Rides and Riders app” and its related content produced by Licensor and accessible by Licensee via Licensor’s website and web applications.
- “Licensee” means the entity listed above as party to this Agreement that will be granted a license herein.
- “Related Parties” means the members, agents, employees and/or assigns of Licensor.
- “Trade Secret” means any and all documents or information relating to Licensor or the Licensee that meet the definition of a Trade Secret under Wis. Stat. Sec. 134.90 of the Wisconsin Statutes. Examples of Trade Secrets may include, but are not limited to: Material architecture, formulas, patterns, compilations, programs, devices, methods, techniques or processes, product costs and mark-up information, and service costs and mark-up information.
In addition to the foregoing, other terms that are used as defined terms in this Agreement shall have the meaning ascribed to them in the section of the Agreement in which said terms appear.
Section 2. Grant of License.
- License Grant. Licensor grants to Licensee, and Licensee hereby accepts, a personal, non-transferrable, non-exclusive license to use the Licensed Material, according to the terms of this Agreement (“Grant of License”). Any license granted under this Agreement is conditioned on Licensee remaining in compliance with all terms of this Agreement including Licensee’s full and continued payment of all fees and costs under this Agreement.
- Identity of Licensee. The identity of the Licensee is unique and material to this Agreement. Therefore, use of the Licensed Material by the Licensee is intended to be limited to the individual identified as Licensee above.
- Prohibitions. The rights granted Licensee under this Agreement are limited to the express terms hereof. Specifically, no right is granted to Licensee to sell, reproduce, publish, license, distribute, disseminate, sublicense, rent, and/or lease any portion of the Licensed Material. Further, under no circumstances does Licensor grant to Licensee any right to reverse engineer, decompile, disassemble, modify, translate, or make any attempts to discover the source code of the Licensed Material. The rights granted to Licensee herein are restricted for use solely by Licensee.
Section 3. Fees.
- License Fees. Licensee shall pay the applicable fee for the Licensed Material as detailed on the schedule attached as Exhibit A (“License Fee”).
- Implementation Fees. Implementation of the Licensed Material for use by Licensee will be detailed to Licensee by Licensor after Licensor has completed discovery sessions with Licensee (“Implementation Fees”). Licensee shall pay all Implementation Fees as detailed on Exhibit A.
- Expansion of Operations by Licensee Not Allowed. The Grant of License is applicable to the Licensee only. Licensee may not expand usage of the Grant of License.
- Taxes. Licensee shall be responsible for all sales, use, value added or other similar taxes.
Section 4. Term and Termination.
- The term of the Grant of License under Section 2 shall become effective upon Licensee’s execution of this Agreement and full payment of the License and Implementation Fee under Section 3 and shall continue for the period detailed on Exhibit A (the “Term”). The Grant of License remains conditional and is contingent on timely payment of all obligations by Licensee to Licensor in accordance with this Agreement. The parties may seek to renew this Agreement for additional one or more one (1) year Terms.
- UPON THE EXPIRATION OF THE INITIAL TERM OR ANY SUBSEQUENT TERM, RENEWAL FOR THE FOLLOWING ONE (1) YEAR TERM SHALL OCCUR AUTOMATICALLY UNLESS EITHER LICENSEE OR LICENSOR SENDS WRITTEN NOTICE OF NON-RENEWAL TO THE OTHER PARTY ON OR BEFORE NINETY (90) DAYS PRIOR TO THE END OF THE CURRENT TERM. SUCH NOTICE OF NON-RENEWAL MUST AFFIRMATIVELY STATE THAT THE SENDER OF THAT NOTICE ELECTS NOT TO RENEW THE THEN CURRENT TERM. ALL AGREEMENT PROVISIONS REGARDING INCREASES OR CHANGES IN FEES WILL CONTINUE TO BE IN EFFECT DURING THE AUTOMATIC RENEWAL PERIODS. The expiration of the then current Term with no renewal shall be considered the expiration of this Agreement.
- LICENSEE ACKNOWLEDGES THAT IT HAS BEEN GIVEN SUFFICIENT OPPORTUNITY TO CONSIDER THE AGREEMENT AND THE RENEWAL PROVISIONS PURSUANT TO WIS. STAT. §134.49 RENEWALS AND EXTENSIONS OF BUSINESS CONTRACTS, THAT IT SIGNS THIS AGREEMENT VOLUNTARILY, AND THAT NO PROMISES OR INDUCEMENTS HAVE BEEN MADE OTHER THAN THOSE CONTAINED IN THIS AGREEMENT.
________________________ INITIAL HERE
- Termination by Licensee. Licensee may terminate the Agreement upon written notice to Licensor if Licensor breaches any material term of this Agreement and fails to substantially correct the breach within the Cure Period.
- Termination by Licensor. Licensor may terminate the Agreement or any Grant of License granted hereunder upon written notice to Licensee: (i) if Licensee breaches a material term of this Agreement and fails to cure the breach within the Cure Period, other than detailed in subs (ii); (ii) if Licensee engages in behavior, at the sole discretion of Licensor, that reflects negatively on Licensor or its business;
- Effect of Termination or Expiration. Upon termination of this Agreement for any reason, all rights granted to Licensee under this Agreement cease including the Grant of License under Section 2, including any perceived right the Licensee believes may remain to access the Licensed Material after termination. Notwithstanding anything else herein, for a period of five (5) days, Licensee may use the Licensed Material solely to retrieve its data stored by the Licensed Material following termination. Licensee’s rights and obligations under this Section and under Sections 2(c), 5, 6, 7, 8, 9, 10 and 11 shall survive termination of this Agreement.
- 1.Under no circumstances shall Licensee receive a refund for any Implementation Fees upon termination. If Licensee has pre-paid License Fees, Licensee and Licensor shall work together in good faith to determine an appropriate refund of License Fees to Licensee, if any.
Section 5. “AS IS” Warranty.
- THE LICENSED MATERIAL, AND ANYTHING, WHETHER TANGIBLE OR OTHERWISE, ARISING FROM OR RELATING TO THE LICENSED MATERIAL OR OTHERWISE PROVIDED OR FACILITATED BY LICENSOR (COLLECTIVELY, THE “MATERIALS”), ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EITHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
- ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY OF THE PRODUCTS OR SERVICES THAT ARE PROVIDED BY ANY OF LICENSOR’ SPONSORS, ADVERTISERS, LINKED SITES, CONTENT PROVIDERS OR SERVICE PARTNERS ARE PROVIDED SOLELY BY SUCH ENTITY OR THE MANUFACTURER OF THAT PRODUCT AND/OR SERVICE, AND NOT BY LICENSOR.
- THE PARTIES INTEND THAT THE LIMITED REMEDIES AND DISCLAIMERS CONTAINED IN THIS SECTION SHALL BE VALID AND ENFORCED EVEN IF THEY FAIL OF THEIR ESSENTIAL PURPOSE.
Section 6. Limitation of Liability.
- TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY OR THEIR RELATED PARTIES BE LIABLE FOR ANY OF THE FOLLOWING: (I) DIRECT DAMAGES IN EXCESS OF THE ACTUAL FEE(S) PAID BY LICENSEE OR, (II) ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR OTHER INDIRECT DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLES) ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS OR THE SERVICES OR LICENSED MATERIAL PROVIDED HEREUNDER WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF THE PARTY OR ITS RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- THE PARTIES INTEND THAT THE LIMITATIONS AND DISCLAIMERS CONTAINED IN THIS SECTION SHALL BE VALID AND ENFORCED EVEN IF THEY FAIL OF THEIR ESSENTIAL PURPOSE.
Section 7. Effect of Regulation.
Should any local, state, or national regulatory authority having jurisdiction over Licensee enter a valid and enforceable order upon Licensee or change in applicable law or regulations (“Change in Law”) that has the effect of changing or superseding any term or condition of this Agreement, such Change in Law shall be complied with, but only so long as such Change in Law remains in effect and only to the extent actually necessary under the law. In such event, this Agreement shall remain in effect, unless the effect of the Change in Law is to deprive Licensee of a material part of its Agreement with Licensor. In the event this Change in Law results in depriving Licensee of materials or raising Licensee’s costs beyond that defined in this Agreement, Licensee shall have the right to rescind all or part of this Agreement (if such a rescission is practical) or to end the Term upon thirty (30) days written prior notice to Licensor. Should the Agreement be terminated under such circumstances, Licensee shall be absolved of all penalties and financial assessments related to cancellation of the Agreement and to any future payment obligations due to Licensor subsequent to such cancellation. Under no circumstances shall Licensor be obligated to return any payments made by Licensee under this Agreement prior to the date of such cancellation and/or recession.
Section 8. Indemnification.
Licensee shall indemnify and hold Licensor and its Related Parties harmless from any claim, loss, cost, expense, demand, or damage, including reasonable attorneys’ fees, arising directly or indirectly out of claims by third parties arising out of the Licensee’s use of the Licensed Material except to the extent the harm is attributable to the Licensed Material, provided (i) Licensor notifies Licensee in a timely manner of any such claims of which it has knowledge or notice; and (ii) accords Licensee the right, at its sole option and expense, to handle the defense of the claim and to settle or resolve any such claim it deems appropriate.
Section 9. Licensor Proprietary Rights and Marks.
- Rights of Licensor. Licensee acknowledges and agrees that the Licensed Material and this Agreement contains proprietary and confidential information that is protected by applicable intellectual property and other laws. The trademarks of Licensed Material and Victory Gin Data are the intellectual property of Licensor, and Licensee may not display such marks without the written consent of Licensor. All rights, title and interests in the Licensed Material and source code, whether tangible or intangible including, but not limited to, copyright, trademark and Trade Secret rights and further including any images, photographs, animations, video, audio, music, text and “applets” incorporated into the Licensed Material, and any copies of the Licensed Material are owned by Licensor.
- Licensee Data. Licensor shall not own any right, title or interest to the data as inputted into the Licensed Material (“Licensee Data”). As between Licensor and Licensee, Licensee shall own all such Licensee Data. However, Licensor may collect information and data regarding how the Licensed Material is used and otherwise performs. Licensor has the right to access and monitor the use of the Licensee Data and other actions and data within the Licensed Material and the use of the Licensed Material by Licensee. Licensor will make commercially reasonable efforts to delete all its copies of all Licensee Data upon termination of this Agreement. All information collected by Licensor will be used by Licensor and not shared with third parties other than in the aggregate without any identifying information and is Licensor’s Confidential Information. Any information or data produced by the Licensed Material regarding the performance of the Licensed Material or analysis and compilations of aggregate data collected by Licensor is considered proprietary information owned by Licensor.
- No Disclosure to Third Parties. Licensee may not remove the copyright, trademark, or other proprietary notices (if any) from the Licensed Material, any onscreen display when the Licensed Material is accessed, or source code. Licensee may not disclose the Licensed Material, this Agreement or the Exhibits, in whole or in part, or otherwise provide information from the Licensed Material, this Agreement or its Exhibits, in whole or in part, to any third party or parties not directly affiliated with the Licensee without the written consent of Licensor that may be withheld by Licensor upon its sole and absolute discretion. The Licensed Material that may be made available to Licensee are licensed and not sold. As such, Licensee is limited to the actions as discussed in Section 2. Any actions by Licensee outside of the scope of Section 2 are considered contrary to Licensor’ proprietary rights.
- Injunctive Relief. Licensee acknowledges that any use or disclosure of Licensor’s proprietary rights and marks as described in this Section in a manner inconsistent with the provisions of this Agreement will cause Licensor irreparable damage for which remedies other than injunctive relief will be inadequate, and Licensee agrees that Licensor shall be entitled to injunctive or other equitable relief enjoining such use or disclosure, without the posting of a bond or other security, in addition to any other remedies available by law or under this Agreement.
Section 10. NonDisclosure.
(a) Confidential Information. Licensor and Licensee agree not to use the Confidential Information disclosed to it by the other party for its own use or for any purpose except to carry out the intent of this Agreement. Neither will disclose the Confidential Information of the other to third parties or to the first party’s employees or agents without the written consent of the other party, except to those employees or agents who are required to have the information in order to carry out the contemplated business. Each agrees that it will take all reasonable steps, including all steps that it would take to protect its own Confidential Information, to protect the secrecy of and avoid disclosure or use of Confidential Information of the other in order to prevent it from falling into the possession of unauthorized persons. Each agrees to immediately notify the other in writing of any misuse or misappropriation of such Confidential Information.
(b) Trade Secrets. Licensor and Licensee agree that except as required by the scope of the Agreement or expressly agreed upon in writing by the parties, neither will use, directly or indirectly disclose, or publish any of the other’s Trade Secrets. Both parties acknowledge that any unpermitted use or disclosure of the other’s Trade Secret will cause the Trade Secret holder irreparable damage for which remedies other than injunctive relief will be inadequate and that the Trade Secret holder shall be entitled to injunctive relief or other equitable relief enjoining such use or disclosure, without the posting of a bond or other security, in addition to any other remedies available by law or under this Agreement. The term of this covenant not to disclose Trade Secrets is unlimited and survives the termination of this Agreement.
Section 11. Miscellaneous.
- Governing Law, Venue and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin, without reference to conflict of law principles. Venue and jurisdiction for any federal or state court litigation or any alternative dispute resolution including mediation and arbitration shall be in Dane County, State of Wisconsin.
- Entire Agreement. This Agreement with all its Exhibits and any communications which are attached hereto contain the entire understanding of the parties with respect to the subject matter hereof, and supersedes any prior agreement, understanding and communication between the parties, whether written or oral, with respect to such subject matter. This Agreement can be amended only in writing signed by the parties.
- Transfer and Assignment. Licensee may not assign or transfer the Licensed Material or this Agreement to a third party. Licensor is permitted to assign or otherwise transfer this Agreement to any third party without the consent of Licensee. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto, and their respective heirs, representatives, successors, and permitted assignees.
- Severability; No Waiver. In the event that any term or condition of this Agreement is determined to be invalid, illegal or otherwise unenforceable, such determination shall have no effect on the other terms and conditions, which shall continue to be binding upon the parties hereto. Lack of enforcement of any term or condition in this Agreement shall not be construed as a waiver of any rights conferred by such term or condition.
- Relationship. No joint venture, partnership, employment, or agency relationship exists between Licensee and Licensor as a result of this Agreement or use of or access to the Licensed Material. Licensor shall have sole responsibility for payment to its employees and its subcontractors, including all tax payments and report obligations and shall indemnify Licensee for all such expenses and obligations.
- Survival Clause. All duties and responsibilities of any party, which, either expressly or by their nature, extend into the future, shall extend beyond and survive the end of the contract Term or cancellation of this Agreement. In addition, the expiration or earlier termination of this Agreement shall not relieve either party of obligations incurred prior to the termination date.
- Notices Clause. All notices or communications required or permitted as a part of the Agreement shall be in writing (unless another verifiable medium is expressly authorized) and shall be deemed delivered when:
- Actually received, or;
- E-Mailed to the receiving party with a duplicate communication mailed to that party’s last known address.
(h) Warranties of Licensee. Licensee warrants and represents to Licensor as follows:
- Licensee is not a competitor of Licensor;
- Licensee shall use the Licensed Material for its own personal use;
(i) Alternative Dispute Resolution. In the event of a dispute between the parties arising under or in connection with this Agreement, both parties agree to engage in mediation for the outstanding issues prior to any lawsuit being filed by either party. Mediation will take place in Buffalo County, State of Wisconsin.
LICENSOR: VICTORY GIN DATA, LLC
Term: The Term of this License shall begin on the Effective Date and end on ________________.
License Fee: The License Fee for the initial Term shall be $ _____________________. The License Fee shall be payable by Licensee as follows:
Implementation Fee: The Implementation Fee shall be $________________. The Implementation Fee must be paid by Licensee before the Licensed Software will be available for use. Implementation Fees are non-refundable.