270 Legal [Sample Agreements]

SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT

This Software License and Distribution Agreement (the “Agreement”) is effective as of the 3rd day of May 2007, by and between SPARE BACKUP, INC., a Delaware corporation, located at 72757 Fred Waring Drive, Palm Desert, CA 92260, acting on behalf of itself and its Affiliates (collectively “Supplier”), and GATEWAY COMPANIES, INC., a Delaware corporation, located at 7565 Irvine Center Drive, Irvine, CA 92618-2930, acting on behalf of itself and its Affiliates (collectively “Gateway”).

The parties agree as follows:

1. DEFINITIONS. The singular and plural uses of the capitalized terms listed below will have the following meanings in this Agreement.

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2. LICENSE GRANT.

A. Supplier grants to Gateway a non-exclusive, worldwide right and license during the term of this Agreement and any renewals hereof:

(1) To use, execute, perform, display, preinstall or have preinstalled on its behalf, the object code of the Program;

(2) To retain media duplication firms to reproduce object code of the Program on behalf of and under contract with Gateway;

(3) If Gateway elects to provide a hard drive recovery system, replicate the preinstalled image of the Product on the end user system hard drive in a partitioned area of the hard drive;

(4) To distribute or have distributed on its behalf to customers under the terms of Supplier’s end-user license agreement, such distribution shall include, but not be limited to the following:

(a) distribution of the Product to customers as a component of hardware to new customers, to customers who have previously purchased hardware from Gateway, to new customers as a component of a gateway bundle offering that includes or otherwise involves the purchaser of hardware, or to customers as a Gateway product offering, under the terms of Supplier’s end user license agreement; and

(b) distribution of the Program in the partitioned area of the end user’s hard drive for hard drive recovery purposes;

(c) distribution of the Program in diskette, CD or DVD ROM format either alone or with third party programs included on the same diskette, CD or DVD-ROM.

(5) To reproduce, publish, prepare derivative works of, sell and distribute the Documentation and any derivative works thereof, provided that any derivative works or other modifications made by Gateway shall not render the Documentation incomplete or inaccurate. The right set forth in this paragraph includes the right to distribute and transmit the Documentation in any means Gateway deems necessary or appropriate, including without limitation distribution on a CD or DVD ROM, diskette or videotape; preloaded on a system; by facsimile; or through an Internet site, bulletin board service or other electronic means. Notwithstanding anything to the contrary herein, Gateway shall have the right to continue using the Documentation after the term of this Agreement for the limited purpose of supporting customers who acquired Products from Gateway prior to the expiration or earlier termination of this Agreement.

(6) To reproduce, publish, distribute and use all program names, trade names, trademarks, screen shots, logos and Documentation used by Supplier in connection with the Product(s) to use in the production, packaging, marketing and training related to the Product(s): provided that such use: (a) consists of (i) accurate informational references to and descriptions of the Product(s) or (ii) accurate reproductions or depictions of the Product packaging; and (b) is in compliance with any reasonable guidelines provided by Supplier to Gateway in writing.

a. Trademarks.

The parties specifically recognize each other’s title in and to, or rights in, their respective trade names, trademarks, service marks and related logos (the “Marks”) which may be used hereunder, and each agrees that it will do nothing inconsistent with the other’s ownership, and that all use of the Marks shall inure to the benefit of and be on behalf of the owner. Each party shall, at all times, make proper use of the other’s Marks and not take any action inconsistent with the owner’s ownership. Each party shall obtain the other’s prior written approval before using the other party’s Marks. Upon expiration or termination of this Agreement, each agrees to immediately cease the use of all other’s Marks. Each party authorizes the other to use its Marks solely for the purposes described in this Agreement during the Term, provided that each party agrees that, with respect to the other party’s Marks:

1) This is not a “trademark license” by which it is in any way using the Marks to indicate origin of the other party’s products or services; and will not use or attempt to register a name or mark confusingly similar to the Trademarks.

2) It will not display the Marks in a negative light, disparage or use such Marks in connection with immoral materials or any other way which would denigrate the Marks;

3) Its display of the Marks will be subject to the other party’s review and approval prior to distribution; and

4) It will include a standard trademark acknowledgment statement in all materials.

3. SUPPLIER’S RESPONSIBILITIES.

A. Deliverables. Supplier agrees to deliver to Gateway or Gateway’s designated representative a golden master diskette, CD or DVD ROMs of the Program and all Documentation for the latest version of the Product.

B. Compatibility. Supplier will use reasonable efforts to cooperate with Gateway to ensure that the Program is compatible with Gateway hardware and standard operating systems and environments. In furtherance of this cooperation, Supplier agrees to add Gateway as one of its beta sites and without requiring further written agreement from Gateway, allow Gateway to participate in its beta test program.

C. Upgrades. Supplier will provide all Upgrades to Gateway at no additional charge within a reasonable time after they have been completed by Supplier, but in no event later than thirty (30) days before Supplier makes such Upgrades generally available. Supplier agrees that the licenses granted to Gateway in Section 2 above include the right to distribute Upgrades by any means Gateway may deem appropriate, including without limitation, distribution over the Internet, from a Bulletin Board Service, or other electronic means.

E. Product Roadmaps. Supplier agrees to provide to Gateway, on a quarterly basis, Product roadmaps for Product licensed by Gateway for distribution under this Agreement, in addition to other products available for licensing and distribution by Gateway. Such information shall include all foreign language versions and other product information that may be reasonably requested by Gateway.

F. Support. Supplier shall be solely responsible for providing all maintenance and industry-standard support of the Product and Gateway will not be required to accept requests for support from Gateway’s end users or dealers. Supplier agrees that Gateway will not be obligated to provide Supplier with customer names or identifications. Supplier shall provide support to Gateway End Users within the United States through the telephone, e-mail and via online tools. Supplier shall provide support for non-United States Gateway End Users through e-mail and online tools. Supplier’s support obligations hereunder shall include but not be limited to providing Gateway with:

(1) All Upgrades as soon as the Upgrades are available and in accordance with the “time is of the essence” parameters set forth in the next paragraph, but in no event later than the general availability of such Upgrades. Supplier agrees that the licenses granted to Gateway in Section 2 above include the right to distribute Upgrades by any means Gateway may deem appropriate, including without limitation, distribution over the Internet, from a Bulletin Board Service, or other electronic means, provided that such distribution shall be limited to customers who have previously acquired the Product from Gateway.
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