SP Annotated Network, Ltd., an Ohio limited liability company, having its principal place of business at 7466 Auburn Road, Suite A, Concord, Ohio 44077 (“Licensor”), has developed certain intellectual property in the form of software, materials, website, electronic tools, procedures, documents, trademarks and copyrights, which together encompass “The Link’Em™ System”, hereafter collectively called “SYSTEM”.
The software, materials, website, electronic tools, procedures and documents constituting the SYSTEM were developed by Licensor at considerable cost and are not in the public domain and were developed to be made available for the use of registered financial representatives and others.
Licensor has developed the materials comprising the SYSTEM to assist financial advisors in general, including registered representatives, in the sale of financial products to customers. The SYSTEM and its components are to be used only by advisors or representatives who have signed or are bound by this Agreement. The SYSTEM and its components are protected by various federal and state trademark, unfair competition, and copyright laws, and is the subject of a pending trademark, and a pending U.S. Copyright registration.
Licensee desires to obtain a non-exclusive license to use the SYSTEM to assist it in providing services to its clients. LICENSEE agrees that any fees charged to its clients for using the SYSTEM will be invoiced though their invoicing service. LICENSEE agrees to the terms of this Agreement and will use the SYSTEM solely in accordance with the terms of this Agreement.
NOW THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged by Licensor and Licensee, the parties agree as follows:
1. Licensor hereby grants to Licensee a non-exclusive, non-transferable right and license to use, promote, and distribute the SYSTEM subject to the limitations set forth in this Agreement.
2. Licensee shall pay to Licensor an initial license fee, entitling Licensee to use the SYSTEM with up to 1,000 clients (seats) or contacts upon execution of this Agreement. Thereafter, Licensee shall pay Licensor an annual license renewal fee of five hundred dollars ($500.00) per 1,000 clients, each year on the anniversary of this Agreement, in order to enable Licensee and its clients to continue using the SYSTEM.
3. In exchange for the initial license fee, Licensee shall receive from Licensor the following items comprising the SYSTEM, for use according to the terms of this Agreement:
a. One Thousand (1,000) seats.
b. A secure web logon advisor panel for administering the software necessary for creating the Links for the clients, as well as a full explanation of and instructions for use of the SYSTEM with clients.
c. Access to Licensor’s secure website and toll free telephone number, for technical assistance.
At Licensee’s option, it may request Licensor’s assistance with development of a custom icon for use with its clients, for an additional fee. See website for more information.
Licensee shall be entitled to distribute the 1,000 seats delivered with the initial license to its clients, for them to install the software and use the SYSTEM. The software will be e-mailed to each client or downloaded from a link on the licensee website and is activated by a unique “Link Group” unlocking code, which produces a customizable screen for each client. Multiple installations of the same Link Group unlocking code will generate the same screen for each computer on which the unlocking code was used. Once the unlocking codes registered to Licensee are activated 1,000 times, no further installations from the initial allocation of installer will function. Licensee may purchase additional installer for the use of additional clients only from Licensor. Additional blocks of 500 seats are available for $500 per block.
Licensee agrees to exercise a high degree of integrity and professionalism in conducting business using the SYSTEM, to protect the intellectual property of Licensor. Any use of the SYSTEM or its components outside the scope of this Agreement will result in immediate forfeiture of this limited license.
4. Licensee may not prepare, manufacture, copy, use, promote, distribute, or sell a derivative work of the SYSTEM. Any copying, reverse engineering or other use without the express approval of Licensor shall be a violation of this Agreement. Approval must be express and in writing, and failure to respond shall not be deemed approval. Licensor may withhold such approval for any reason.
5. Licensee agrees that copying of or dissemination of the materials contained in the SYSTEM, other than those identified specifically as promotional materials, or as permitted under the terms of this Agreement, will be a violation of this Agreement. Damages are not susceptible of calculation; consequently, Licensee shall pay Licensor the amount of $10,000 per violation.
6. All rights in the SYSTEM not specifically granted to Licensee are reserved by the Licensor. All such reserved rights may be exercised by the Licensor.
7. The term of this Agreement shall be effective and binding on Licensor and Licensee upon written acceptance by Licensor and payment of the initial license fee. The initial term of this Agreement shall be one (1) year. This license shall automatically be renewed each year thereafter, upon payment of the renewal fee by Licensee to Licensor. If the renewal fee is not paid, this license shall terminate and the access of all clients to the SYSTEM will be immediately suspended. The restrictions contained herein shall extend for ten (10) years after the end of the last term hereof.
8. Licensee agrees to print or otherwise mark the following copyright notice directly on each copy of all materials comprising the SYSTEM used by or distributed to its clients: “?2010 SP Annotated Network, Ltd. All rights reserved.”
9. Any of the following shall constitute an “Event of Default” under this Agreement: (i) any representation or warranty made in this Agreement by a party shall be or become false or misleading in any material respect; or (ii) Licensee defaults in any material respect in the performance of any of its obligations, which default remains uncured after a period of thirty (30) days after Licensee receives written notice of such default, identifying the same as a default under this Agreement. If an Event of Default occurs, either party may elect to terminate this Agreement upon thirty (30) day’s prior written notice. If, however, the default is cured within thirty (30) days, this Agreement shall not terminate. Upon default, all materials covered by this Agreement shall be returned to Licensor.
10. Licensor warrants that it is the exclusive owner of the trademarks and copyrights so conveyed and is authorized to license the trademarks and copyrights in the SYSTEM.
11. The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their heirs, administrators, successors, and assigns.
12. Nothing contained herein shall be construed as a joint venture or shall make one party the agent of any other party.
13. No waiver by either party of any of the terms or conditions of this Agreement in any instance shall be deemed or construed to be a waiver of such terms or conditions for the future or of may subsequent breach thereof. Nor shall any waiver or any default under this Agreement be construed as a waiver of any other default.
14. If a court of competent jurisdiction hereof holds any term, clause, or provision of this Agreement to be invalid or unenforceable, such invalidity shall not affect the validity or operation of any other term, clause, or provision of this Agreement; and such invalid term, clause, or provision shall be deemed to be severed from the Agreement.
15. This Agreement constitutes the entire Agreement between the parties, and may not be modified or amended by a written instrument executed by each of the parties. This Agreement shall be construed in accordance with the laws of the State of Ohio, which hereunder shall govern disputes. The parties hereto consent to the jurisdiction of the courts of competent jurisdiction, federal or state, situated in the State of Ohio for the bringing of any and all actions hereunder.
