SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT
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BETWEEN: |
[COMPANY], a corporation established under the laws of [COUNTRY], whose registered office is at [ADDRESS]
(hereinafter referred to as “Company”)
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AND: |
MGI INTERNATIONAL SALES CO., LTD., with registered offices at Flat/Rm A, 26/F Kings Wing Plaza 2, No. 1 on Kwan Street, Sha Tin, N.T Hong Kong
(hereinafter referred to as “MGI”) |
RECITALS
WHEREAS, MGI manufactures and sells certain next-generation sequencing equipment and operates an online application marketplace (“Marketplace”);
WHEREAS, Company has and is continuing developing proprietary software known as [Name of the software application] for [study of bioinformatics and related analyses] which is owned by the Company [or its affiliate XXX] (“Software”);
WHEREAS, Company desires to appoint MGI to sublicense or distribute Software on its online application marketplace and MGI desires to accept such appointment.
WHEREAS, Company understands that by operating the Marketplace MGI is subject to certain data and cyber security requirements and Company hereby confirms that it satisfies and will satisfy all the related criteria which will be defined and clarified in contracts separately signed with MGI and/or its affiliates afterwards;
NOW, THEREFORE, the parties agree to the following:
1.1 Term. This agreement shall be effective for an initial term commencing on [MMM DD, YYYY] (“Effective Date”) and extending for a period of two (2) years. This Agreement shall automatically renew for the term of 2 years unless terminated in writing by either party no later than thirty (30) days prior to the date on which this Agreement expires.
2.1 Software License.
Company hereby grants to MGI an exclusive, transferable, sublicensable, irrevocable license (the "License") to sublicense and/or distribute the Software.
MGI is entitled to sublicense the Software to its third-party distributors, provided that the third party meets Company’s then current requirements and policies to qualify as an Authorized Reseller. MGI shall be responsible for the actions of all Authorized Resellers, and such conduct shall be governed by the terms of this Agreement.
MGI shall license the Software to end users, and such license agreement shall be substantially similar in form and contain substance to which confirmed by both Parties.
3.1 Training. Company shall, at its expense, provide employees of any sublicensee or end-user of Software with the initial training services necessary and desirable to operate the Software, as further described in Annex A attached to this agreement.
3.2 Technical Support. For the [12] month period beginning on the date of any sublicense or distribution of Software, at Company's own expense, Company shall provide the sublicensee or end-user with telephone or electronic support during Company's normal business hours in order to help the sublicensee or end-user locate and correct problems with the Software and with internet-based support system generally available seven days a week, twenty-four hours a day. The level of support must, at a minimum, be in accordance with Company's support policies then in effect. Related technical support terms will be released in the Marketplace to the end-users or sublicensees. Detailed technical services will be further described in Annex B to this Agreement.
3.3 Renewed Support. After the initial [12] month support period, any sublicensee or end-user may elect to renew Company's support services at Company's then-current service rates. Company shall execute separate agreements with the sublicensee or end-user for provision of renewed support. In terms of renewed support, although it is regulated in this clause, the Company understands and agrees that the renewed support service will be further subject to the then-current requirements of the Marketplace to software third-party suppliers.
4.1 Updates. Company shall provide any sublicensee or end-user, at Company's sole expense, with all updates, extensions, enhancement, modifications, and other changes Company makes or adds to the Software and which Company offers to other licensees and sublicensees of Software. Company shall notify MGI and the Marketplace on such updates.
4.2 Fixes and Patches. Company shall provide any sublicensee or end-user, at Company's sole expense, with bug fixes and code corrections to correct Software malfunctions and defects in order to bring the Software into substantial conformity with its operating specifications. Company shall notify MGI and the Marketplace on such fixes and patches.
5.1 Commission. Without limitation to the other provisions of this Section, the commission for each sublicense or distribution of Software is 20% of license price of Software; provided, however, if any sublicensee or end-user terminates the use of Software and requests a refund during the Trial Period as defined below, MGI is not entitled to any commission. After deducting the 20% commission for each sublicense or distribution of Software, MGI shall remit the remaining 80% of license price within 45 calendar days of the sublicense or distribution of Software if the license fee is collected by MGI. If any sublicensee or end-user terminates the use of Software and requests a refund during the Trial Period, Company is not entitled to any payment. All bank charges in connection with payment shall be borne by Company. Payment amounts herein do not include taxes. Company shall pay all taxes applicable to payments between the parties. MGI will invoice Company quarterly cumulative sales at the beginning of each quarter.
5.2 Price. The price of Software is [XXX] per year. Company may adjust the price time to time upon a 30 days prior written notice.
5.3 Trial Period. Trial Period means 14 calendar days from the date of sublicense or distribution of Software. Any sublicensee or end-user may terminate the use of Software and request a full refund during the Trial Period.
6.1 MGI will not modify, alter, reverse engineer, decompile, decode, decrypt, or disassemble Software.
7.1 Existence. The parties are corporations incorporated and existing under the laws of the jurisdictions of their respective incorporation.
7.2 Authority and Capacity. The parties have the authority and capacity to enter into this agreement.
7.3 Execution and Delivery. The parties have duly executed and delivered this agreement.
7.4 No Conflicts. Neither party is under any restriction or obligation that the party could reasonably expect might affect the party's performance of its obligations under this agreement.
7.5 Permits, Consents, and Other Authorizations. Each party holds all permits and other authorizations necessary to own, lease, and operate its properties, and conduct its business as it is now carried on.
7.6 Ownership of Intellectual Property. Company owns and shall continue to own all intellectual property rights included in the Software and granted under in the License, and has and shall continue to have the exclusive right to grant the License.
7.7 Maintenance of Intellectual Property. Company has properly maintained and shall continue to maintain all its intellectual property rights licensed under the License, including paying all applicable registration and maintenance fees.
7.8 No Prior Grant or Transfer. Company has not granted, is not obligated to grant, and shall not grant during the Term any license to any third party that would conflict with the License under this agreement.
7.9 No Infringement. Company represents and warrants that Software does not and will not infringe the intellectual property rights or other rights of any third party. Company warrants that Software is free from any trojan, time bomb, virus, worm or similar device or program, and the Software has no known security holes.
8.1 Company will retain exclusive interest in and ownership of its intellectual property rights in and to the Software and expressly reserves all rights not expressly granted under this agreement unless otherwise stipulated in this Agreement.
8.2 Trademark
Company grants MGI a non-exclusive, worldwide, royalty-free right and license to use its trademarks, trade names, service marks, logos or other identifying or distinctive marks (collectively, "Marks"), provided that MGI will comply with Company’s trademark usage guidelines.
MGI agrees to consistently indicate by the appropriate symbol that all such trademarks or trade names are proprietary to Company.
9.1 Company will defend or settle any claim against MGI that Software infringe an intellectual property right in the country where Software are used or sold. Company shall fully indemnify and hold harmless MGI against all losses, costs, expenses, damages and liabilities arising out of and will defend any claim or suit brought against MGI or its affiliates, on the basis that the marketing, sublicensing, commercial use, or other use of Software by MGI and any sublicensee or end-user as per the terms of this Agreement infringes any patent, trademark, copyright, trade secret or other proprietary right (“Claim”). If such a claim appears to be likely, Company may, at its option, modify Software.
10.1Severability. If any provision of this agreement is held invalid or unenforceable, such provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this agreement will continue in full force and effect. The failure of either party to exercise any right granted herein or to require any performance of any term of this agreement or the waiver by either party of any breach of this agreement shall not prevent a subsequent exercise or enforcement of, or be deemed a waiver of any subsequent breach of ,the same or any other term of this agreement. Nothing in this agreement shall constitute or create a joint venture, partnership, or any other party hereunder except as expressly stated in this Agreement
10.2Assignment. With the exception of any transfer to an affiliate of MGI; MGI shall not assign or transfer this agreement or any rights or obligations under this agreement, whether voluntary by operation of law or otherwise, without the prior written consent of Company; provided, however, that no consent shall be required for any assignment in connection with any merger, acquisition or the sale required for any assignment in connection with any merger, acquisition or the sale of all or substantially all of the stock or assets of MGI to a party that agrees in writing to be bound by the terms and conditions of this agreement, and is not in Company’s reasonable judgment, a competitor of Company. Company shall not assign or transfer this agreement to any party other than a successor by way of merger, acquisition or sale of all or substantially all of its stock or assets. Any assignment or transfer of this Agreement made in contravention of the terms hereof shall be null and void. Subject to the foregoing, this agreement shall be binding on and inure to the benefit of the parties’ respective successors and permitted assigns.
10.3Governing Law and Dispute Resolution. This agreement shall be governed by and construed in accordance with the laws of Hong Kong without giving effect to its rules on conflicts of law. Any dispute arising from or in connection with this agreement shall be submitted to Hong Kong International Arbitration Centre for arbitration in accordance with its arbitration rules in force at the time of application for arbitration. The arbitration shall proceed in Hong Kong. The arbitral award is final and binding upon both Parties. The arbitration shall be conducted in English.
10.4Force Majeure. MGI shall not be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its responsible control, including but not limited to acts of God, fire, flood, tornado, earthquake, hurricane, lighting, government actions, actual or threatened acts of war, terrorism, civil disturbance or insurrection, sabotage, epidemic, or Customer’s fault or negligence. In the event of any such delay the delivery date shall be deferred for a period equal to the time lost by reason of the delay.
10.5Entire Agreement. This agreement represents the entire agreement between the parties regarding the subject matter hereof and supersedes all prior discussions, communications, agreements, and understandings of any kind and nature between the parties. No amendment to this agreement or waiver of any right, condition, or breach will be effective unless in writing and signed by both parties.
10.6 “Confidential Information” means information disclosed by a Party in connection with this Agreement which if disclosed in tangible form is marked “Confidential” or with other similar designation to indicate its confidential or proprietary nature or if disclosed orally is indicated orally at the time of such disclosure to be confidential or proprietary by the Party disclosing such information and is confirmed as being confidential or proprietary by the disclosing Party in a writing delivered to the receiving Party within thirty (30) days after such disclosure. The Parties agree that the receiving Party shall not publish or otherwise disclose, and shall not use for any purpose, any Confidential Information furnished to it by the other Party pursuant to this Agreement. Each Party shall treat the terms and conditions of this Agreement as the Confidential Information of the other
10.7Notices
10.7.1 Any notice to be given under this Agreement shall be in writing and shall be served by delivering it personally or sending it by registered or certified mail, commercial express courier or international courier package. Any such notice shall be deemed to have been received:
(a) if delivered personally, at the time of delivery;
(b) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid or ten (10) days for international mall); or
(c) one (1) day after deposit with a commercial express courier specifying next day delivery or, for international courier packages, two (2) days after deposit with a commercial express courier specifying 2-day delivery, with written verification of receipt.
10.7.2 The addresses and contact of the Parties for the purposes of Clause 10.7.1 are:
MGI
Address: XXX
Attention to: XXX
Email address: XXX
Company
Address: XXX
Attention to: XXX
Email address: XXX
10.8Compliance with Laws. Each party will comply with all applicable laws relating to licensing and sublicensing of Software and notify the other party if it becomes aware of any non-compliance in connection with this section.
AS WITNESS the Parties hereto have caused this Agreement to be executed the day and year first above written.
For and on behalf of MGI
___________________________
Name:
Title:
For and on behalf of Company
___________________________
Name:
Title:
Annex A
Training Services
The following lists initial training services that will be provided by Company to any sublicensee or end-user of Software under this agreement:
1. Training by Company
1.1 General
Company will arrange training classes to help end-users and/or sublicensees understand and operate the Software. Training classes can be opening trainings at Company’s designated locations, on-site trainings at sublicensee or end-user’s premises, or online trainings (e.g. by webinar). Company does not guarantee the effectiveness of any training; while Company shall make reasonable efforts to ensure the quality of the content and qualifications of the trainers, the effectiveness of trainings largely depends on the individual efforts, background, and knowledge of participants. \
1.2 Place of Training
1.2.1 Open Training
Open training takes place at the place designated in Company’ notice for such training. Company reserves the right to change the place upon 3 days prior written/oral notice, provided such change is reasonable under the circumstances.
1.2.2 On-site Training
Where individually agreed between Company and sublicensee or end-user, training can also take place at sublicensee or end-user’s premises, provided that such sublicensee or end-user agrees to provide adequate rooms and support.
1.2.3 Online Training
The online training links and other detailed information will be provided by Company. Any sublicensee or end-user has right to change the attendance date/time once they notify Company in advance.
2. Performance of the Agreement
2.1 Training
2.1.1 Open Training
Company shall not be obligated to provide open trainings to sublicensees or end-users until registration by them and confirmation of registration by Company. Company shall process the open training requests in order. Deadline for registration is one week prior to the announced date of such open training.
2.1.2 On-site Training
Company shall not be obligated to provide on-site trainings to sublicensees or end-users until the acceptance of Company’s training notice by sublicensees or end-users. The minimum number of participants is indicated in Company’ training notice. Should the sublicensees or end-users fail to provide participants the minimum number not be reached at the time of the deadline for participation, Company is entitled to cancel the training.
2.1.3 Online Training
Company shall notify sublicensees or end-users of the online training links and passwords by email or letter in advance. Company shall use reasonable endeavours to provide the services, in all material respects.
2.2 Altered Booking
2.2.1 Open Training
Sublicensees or end-users may change the scheduled training free of charge once by participating in another open training held by Company, provided that sublicensees or end-users notify Company of the requested change at least 10 days prior to the announced date of such open training. Sublicensees or end-users will receive a letter or an email confirming the request for change of training date and the right to participate in another open training within one year from the date of the original training.
2.2.2 On-site Training
Sublicensees or end-users may change the scheduled training, provided that sublicensees or end-users reimburse Company for actual expenses incurred.
2.2.3 Online Training
Sublicensees or end-users may change the time for scheduled training free of charge once by participating in another online training held by Company, provided that sublicensees or end-users notify Company of the requested change at least 3 days prior to the announced date of such online training. Sublicensees or end-users will receive a letter or an email confirming the request for change of training date and notifying them of another online training link and password.
Annex B
Technical Support Services
Annex B
Company shall provide technical support services in consistent with the terms and policies stated by the Marketplace. If any of the following conflicts with the terms and policies stated by the Marketplace, the terms and policies stated by the Marketplace shall prevail.
Maximum Initial Response Time
Requests from MGI, or sublicensees or end-users shall be answered within a2 business days. This does not include the total time required to resolve the request.
E-Mail Support
MGI, or sublicensees or end-usersmay contact the COMPANY’s support team via e-mail: support@【 】.com
Phone Support
MGI, or sublicensees or end-users may contact the COMPANY’s support team for urgent issues during normal business hours (Monday to Friday, 09:00 to 16:00, Central European Time or Day light Saving Time, whichever is applicable).
Live Video Support
MGI, or sublicensees or end-users may contact the COMPANY’s support team over a video conferencing system for urgent issues, as well as for software architecture, design and implementation advice. Live video support calls must be scheduled in advance.
Updates to New Releases
Company shall update the Software regularly. Additional fees for update subscriptions may apply after the initial period; within the initial period Company shall not charge Company, sublicensees or end-users for any update.