Form B.19
SHARED COST ENHANCEMENT SPONSORSHIP EXHIBIT
This Exhibit is a part of the Software License Agreement dated ______, 20__(the "Agreement") by and between ______("Licensor") and ______("Customer"). All terms of the Agreement apply to this Exhibit.
1.SCOPE
This Exhibit provides for the development by Licensor and funding by Customer of an enhancement to the Licensor Software Product and for the grant of a license to that enhancement to Customer.
2.DEFINITIONS
When used in this Exhibit, the following terms shall have the definitions set forth below.
2.1Availability Date means the date Licensor announces the Enhancement is available for delivery.
2.2Customer's Pro-Rata Share of Development Charges means the Development Charges divided by the number of Sponsors.
2.3Customer's Pro-Rata Share of the Rebate Amount means the Rebate Amount divided by the number of Sponsors.
2.4Development Charges means the total charges for the resources, such as personnel time, computer time and materials, used by Licensor in the development of the Enhancement, with personnel time and computer time priced at Licensor's Standard Time and Materials Rates. Licensor's initial estimate of total Development Charges, which is subject to change, is: $______.
2.5Development Proposal means the [title development proposal] dated [date of development proposal], which describes the Enhancement Licensor proposes to develop.
2.6Enhancement means the enhancement to the Licensed System described in the Development Proposal as modified from time to time.
2.7Licensed System means Licensor's Software Product known as [product name].
2.8Minimum Participation Limit means [minimum number of sponsors] Sponsors, which is the minimum number of sponsors who must agree to sponsor development of the Enhancement by the Project Start Date in order for this Exhibit to remain in effect.
2.9Project Start Date means [project start date], when Licensor expects to begin development of the Enhancement.
2.10Rebate Amount means an amount calculated as follows. The Rebate Amount shall begin at zero. For each license to the Enhancement granted to a customer of Licensor during the Rebate Period, the Rebate Amount shall be increased by adding to the amount fifty percent (50%) of the license fee charged to such Customer for the Enhancement. However, the Rebate Amount shall in total never exceed the Development Charges.
2.11Rebate Period means the period beginning on the Availability Date and ending [end date].
2.12Sponsor means a licensee of the Licensed System who agrees to the terms of an exhibit comparable to this Exhibit before the Availability Date.
3.SPONSORSHIP AND DEVELOPMENT
3.1Development. Licensor agrees to develop the Enhancement. The Project Start Date and the descriptions, development costs, delivery dates and other information contained in the Development Proposal are estimates and Licensor retains the right to change the Development Proposal in order to develop the Enhancement properly. In connection with the development of the Enhancement, Licensor will deliver a periodic report to Customer outlining the current project status, the level of sponsorship, estimated development costs and estimated delivery dates.
3.2Sponsorship. Customer agrees to Sponsor the development of the Enhancement by complying with its payment obligations pursuant to Section 5.
3.3Minimum Sponsorship. This Exhibit is conditional. If the number of Sponsors is less than the Minimum Participation Limit on the Project Start Date, the obligations of Licensor and Customer under this Exhibit shall terminate and this Exhibit shall be null and void.
4.LICENSE AND TITLE
Title to the Enhancement and any other information or materials delivered by Licensor to Customer pursuant to this Exhibit shall remain in Licensor. Licensor hereby grants Customer a non-exclusive license to use the Enhancement subject to the same terms and conditions as the license to the Licensed System, including, but not limited to, the confidentiality provisions contained therein.
5.PAYMENT
As a license fee for the Enhancement, Customer shall pay Licensor Customer's Pro-Rata Share of the Development Charges. Licensor shall invoice Customer monthly in arrears as those charges are incurred. Each month Customer shall pay Customer's Pro-Rata Share of accrued Development Charges. If new Sponsors are added before the Availability Date, Customer's license fee shall be recalculated in accordance with the formula described above, and Customer shall receive an appropriate reduction or credit.
6.REBATE
The rebate is conditional. If the number of Sponsors is equal to or greater than five (5) on the Availability Date, Licensor shall have no rebate obligation. Otherwise, each month after the Availability Date, Customer shall receive a rebate from Licensor equal to Customer's Pro-Rata Share of the Rebate Amount accrued on that date (if any), less any previous rebates under this section. Each rebate shall be offset against any amounts then owed by Customer to Licensor and any remainder shall be credited to Customer to be used toward enhancements or modifications to the Licensed System, technical consulting, or technical education. The rebates shall end on the month following the end of the Rebate Period.
7.TERM
The term of the Exhibit shall begin on the Project Start Date and shall continue in full force and effect until the obligations and duties under this Exhibit have been terminated, unless sooner terminated pursuant to Section 8 below.
8.TERMINATION
If either party defaults in the performance of any of its obligations under this Exhibit, and such default continues for sixty (60) days after the receipt by the defaulting party of notice of default, the non-defaulting party shall have the right to terminate this Exhibit. All obligations of confidentiality and obligations to pay for charges existing at the time of any default shall survive termination of the Exhibit.
If the Customer's license to the Licensed System is terminated due to a breach by Customer, Customer's rights under this Exhibit shall be terminated, and Licensor shall retain any fees due to Licensor pursuant to this Exhibit before such termination, and Licensor shall have no obligation to deliver the Enhancement to Customer.
9.DELIVERY AND INSTALLATION
Delivery of the Enhancement will consist of the delivery of the code and documentation that Licensor identifies as part of the enhancement. Delivery may be accomplished by the delivery to Customer of one copy of such code and documentation on any medium or mediums selected by Licensor, or by electronic transmission from Licensor to Customer. Delivery dates specified in the Development Proposal are estimates and Licensor does not warrant that delivery will be made on any particular date. Delivery shall be on a mutually agreed date.
Installation of the Enhancement is Customer's responsibility. If Customer requests Licensor's assistance in the installation of the Enhancement, Licensor and Customer agree to negotiate in good faith for a subsequent agreement for such assistance.
10.LIMITATION OF LIABILITY
Licensor's liability to Customer arising out of or related to this Exhibit and performance under it shall not exceed the amounts actually paid by Customer to Licensor for the performance of the particular task that gave rise to the liability. IN NO EVENT SHALL LICENSOR BE LIABLE TO CUSTOMER FOR LOST PROFITS, DAMAGE TO CUSTOMER'S BUSINESS, OR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The foregoing states the exclusive remedy of Customer and the entire liability of Licensor.
11.WARRANTY AND MAINTENANCE
Customer shall have no warranty or maintenance obligations pursuant to this Exhibit. LICENSOR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.
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