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THIS AGREEMENT
("Agreement") is hereby entered into between Bill
Collector in a BoxT, a corporation with offices
at:
74-923 Hwy 111
Indian Wells, Ca 92210
("Licensor") and Marauder Corporation dba Bill
Collector in a BoxT, a corporation with offices
at:
74-923 Hwy 111
Indian Wells, Ca 92210
("Licensee") on the following terms and
conditions:
1. Licensed Product. The parties are
entering into this Agreement to establish an
arrangement whereby Licensor is licensing certain
application software programs, as described more
fully in the attached Product Schedule and
accompanying Documentation (the "Licensed Product")
on terms and subject to the conditions set forth
herein.
2. Scope of Use. The Licensor
expressly reserves all rights in the Licensed Product
not specifically granted to Licensee. It is
acknowledged that all right, title and interest in
the Licensed Products will remain with Licensor (or
third party suppliers, if applicable) and that
Licensed Products are licensed and not "sold" to
Licensee. Unless specifically agreed in writing,
these exclusive ownership rights extend to any
adaptation, translation, customization or derivative
work of the Licensed Product. Subject to the
foregoing, Licensee is granted the following limited
rights:
(a) Delivery & Installation. The
Licensor shall deliver the Licensed Product to
Licensee by mutually acceptable means on the media
described in the Product Schedule or, if not so
described, then on appropriate media. Unless
otherwise agreed in writing, the Licensee shall be
responsible for installing the Licensed Product on
their computer system. Licensee shall ensure that:
(i) all required data is in proper format; (ii) the
computer system and associated software is properly
installed, configured as needed and operated by
qualified personnel according to recommended
environmental site conditions, and (iii) no other
software or equipment having an adverse impact on the
Licensed Product have been introduced.
(b) Operating License. Subject to
payment of the License Fee, upon commencement of an
Operating License, the Licensee is deemed granted a
nonexclusive license to install, store, load, execute
and display (collectively, "Use") the Licensed
Product for internal Use on the single CPU on which
it was originally installed. The Licensed Product may
be relocated to and Used on another single CPU of
Licensee, provided no more than one (1) copy per
license is used on more than one (1) CPU at any one
time.
(c) Transfer of License. Except as
specifically authorized in another provision of this
Agreement, neither this Agreement, nor any rights or
obligations hereunder, may be transferred, assigned,
delegated, sublicensed, relocated or moved to another
person, place or machine, in whole or in part, by
Licensee without Licensor's prior written consent and
any attempt to the contrary shall be void and of no
legal effect.
3. Term. This Agreement shall
commence on the date last below written and shall
continue in full force and effect in perpetuity,
unless terminated earlier in accordance with Section
12 ("Termination").
4. Program Code &
Documentation.
(a) Program Code. The Licensed
Products shall be provided to Licensee and Used
strictly in machine-readable object code format. No
source code or technical-level documentation are
licensed under this Agreement.
(b) Program Documentation. The
Licensee shall be provided "Documentation" describing
in reasonable detail understandable by a user of
general proficiency the use and operation of the
Licensed Product. The Documentation shall be supplied
in magnetic form and may not be reproduced by
Licensee without Licensor's consent.
5. Acceptance. A Licensed
Product shall be deemed accepted by Licensee unless
Licensee notifies Licensor in writing of a material
defect in the Licensed Product within ten (10)
business days after delivery and commencement of the
Operating License.
6. Support Services. Commencing with
the Effective Date of this Agreement and continuing
on a year-to-year basis for so long as Licensor
offers support for the Licensed Products, Licensee
shall have the option to receive Support Service, as
described below. Support Services will automatically
be renewed unless Licensee gives written notice of
cancellation at least thirty (30) days before
commencement of the next renewal term.
(a) Web & Hotline Service.
Licensee's designated representative shall have
access to Licensor's technical support web site and
may use call-in technical support during normal
published hours. Service requests transmitted during
non-business hours shall be considered received by
the Licensor on the next business day. Trouble
Reports shall be communicated by telephone or email
and shall provide sufficient information to enable
Licensor to replicate and diagnose the reported
problem. If necessary and subject to normal security
procedures, Licensor shall be provided remote access
to the Licensed Product operating environment. Unless
otherwise agreed, on-site support is not included and
any out-of-scope work or after hours support shall be
subject to Licensor's standard hourly rate.
(b) Software Upgrade Service.
Licensee shall receive generally available Software
Updates (x.x.(x)) for the Licensed Product, as
designated by the Licensor in its discretion.
Software Upgrade Service does not include beta or
pre-release software. The Licensor may require
electronic fulfillment of Software Upgrades.
(c) Certain Conditions. Licensor
shall not be obligated to provide Support Services
if: (i) the reported error was caused by changes in
Licensed Product code, program parameters or other
user adjustable features; (ii) the error results from
operator error, errors in software or data not
supplied by Licensor or use that is not in accordance
with the Documentation; (iii) the error is in a prior
release that was corrected through issuance of a
Software Upgrade that Licensee has failed to install,
or (iv) the Licensee has failed to pay any required
Annual Support Fee or is otherwise in default of this
Agreement. If any Licensed Product is Third Party
Software (such as operating systems or third party
applications), Licensor shall provide first level
support and Trouble Reports relating to such Third
Party Software shall be passed through to the
supplier for resolution. Support Service does not
include installation or customization of Licensed
Products or Software Upgrades needed to function in
Licensee's environment. If Licensee allows support to
lapse it may be required, as a condition of renewal,
to pay any support fees that would have been due
during the period of lapse.
(d) Training. In consideration of
Licensee's payment of the Training Fee, Licensor
shall provide Licensee the number of Consulting Days
and Class Days identified on the Product Schedule for
training Licensee's employees in the use and
operation of the Licensed Product. Training will be
conducted at Licensor's training facility. Licensee
will bear its own travel costs.
7. Prices & Payment. The prices
and fees for Licensed Products, any Support Services
and other deliverables are set forth on the Product
Schedule. License Fees shall be invoiced as specified
in this Agreement. Invoiced amounts shall be paid
within thirty (30) days from date of invoice. Fees
are non-cancelable and non-refundable. Licensee may
not withhold or "setoff" any amounts due hereunder.
Licensor reserves the right to suspend service and
deliveries until all amounts due are paid in full.
Any late payment shall be subject to any costs of
collection (including reasonable legal fees) and
shall bear interest at the rate of one (1) percent
per month or fraction thereof until paid. Prices
quoted do not include and Licensee shall pay,
indemnify and hold Licensor harmless from all
sales/use, gross receipts, value-added, GST, personal
property or other tax (including interest and
penalties imposed thereon) on the transaction
contemplated herein.
8. Confidential & Proprietary
Information.
(a) Acknowledgment. Licensee hereby
acknowledges that the Licensed Product (including any
Documentation, source code, translations,
compilations, partial copies and derivative works)
contains confidential and proprietary information
belonging exclusively to Licensor (or its designated
third party supplier) ("Confidential &
Proprietary Information"). Confidential &
Proprietary Information does not include: (i)
information already known or independently developed
by the Licensee outside the scope of this
relationship by personnel not having access to any
Confidential & Proprietary Information; (ii)
information in the public domain through no wrongful
act of the Licensee, or (iii) information received by
the Licensee from a third party who was free to
disclose it.
(b) Covenant. With respect to the
Confidential & Proprietary Information, and
except as expressly authorized herein, the Licensee
hereby agrees that during the Term and at all times
thereafter it shall not use, commercialize or
disclose such Confidential & Proprietary
Information to any person or entity, except to its
own employees having a "need to know" (and who
themselves are bound by similar nondisclosure
restrictions), and to such other recipients as the
Licensor may approve in writing; provided that all
such recipients shall have first executed a
confidentiality agreement in a form acceptable to
Licensor. Neither the Licensee nor any recipient
shall: (i) alter or remove from any Licensed Product
or associated Documentation any proprietary,
copyright, trademark or trade secret legend, or (ii)
attempt to decompile, disassemble or reverse engineer
the Licensed Product or other Confidential &
Proprietary Information (and any information derived
in violation of such covenant shall automatically be
deemed Confidential & Proprietary Information
owned exclusively by Licensor). The Licensee and its
personnel shall use at least the same degree of care
in safeguarding the Confidential & Proprietary
Information as it uses in safeguarding its own
confidential information, but in no event shall less
than due diligence and care be exercised. Upon
termination, Licensee shall return or destroy all
Confidential & Proprietary Information in its
possession or control and cease all further use
thereof.
(c) Injunctive Relief. Licensee
acknowledges that violation of the provisions of this
Section would cause irreparable harm to Licensor not
adequately compensable by monetary damages. In
addition to other relief, it is agreed that
injunctive relief shall be available without
necessity of posting bond to prevent any actual or
threatened violation of such provisions.
9. Warranties.
(a) Non-infringement Warranty.
Licensor represents and warrants that the Licensed
Product, when properly used as contemplated herein,
will not infringe or misappropriate any United States
copyright, trademark, patent, or the trade secrets of
any third persons. Upon being notified of such a
claim, Licensor shall (i) defend through litigation
or obtain through negotiation the right of Licensee
to continue using the Licensed Product; (ii) rework
the Licensed Product so as to make it non-infringing
while preserving the original functionality, or (iii)
replace the Licensed Product with functionally
equivalent software. If none of the foregoing
alternatives provide an adequate remedy, Licensee may
terminate all or any part of this Agreement and
recover amounts paid for the infringing Licensed
Product.
(b) Software Keys & Anti-Virus
Checking. Licensor represents that (i) the
Licensed Product contains usage limiting code
requiring software keys corresponding to license
rights granted hereunder, and (ii) it will prior to
shipment scan the Licensed Product with commercially
available anti-virus software and shall use
reasonable efforts to remove viruses capable of being
detected with such software.
(c) No Performance Warranty. Except
as specified in subsection (a) and (b) above,
Licensor is providing all Licensed Products, services
and other deliverables hereunder strictly on an "as
is" basis without any express or implied warranty,
guarantee or other assurance of quality, conformity
with specifications, reliability or functionality.
LICENSOR HEREBY DISCLAIMS WITH RESPECT TO ALL
LICENSED PRODUCTS, SUPPORT SERVICES AND OTHER
DELIVERABLES PROVIDED HEREUNDER, ALL EXPRESS AND
IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES
OF MERCHANTABILITY, TITLE, ACCURACY, INTEGRATION OR
FITNESS FOR A PARTICULAR PURPOSE.
(d) Certain JAVA Code. CERTAIN
LICENSED PRODUCTS MAY CONTAIN OR SUPPORT PROGRAMS
WRITTEN IN JAVA. THE LICENSED PRODUCTS, AND
ESPECIALLY JAVA, ARE NOT FAULT TOLERANT AND ARE NOT
DESIGNED, MANUFACTURED OR INTENDED FOR USE IN
HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE
PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR
FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATIONS
SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT
MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF
THE LICENSED PRODUCT COULD LEAD TO DEATH, PERSONAL
INJURY OR PHYSICAL OR ENVIRONMENTAL DAMAGE. IF
LICENSEE USES A LICENSED PRODUCT IN SUCH ENVIRONMENT,
IT EXPRESSLY ASSUMES ALL RISK THEREFORE.
10. Limitation of Remedies &
Liabilities. The parties acknowledge that
the following provisions have been negotiated by them
and reflect a fair allocation of risk:
(a) Remedies. Except for certain
injunctive relief authorized under Section 8
("Confidential & Proprietary Information"),
Licensee's sole and exclusive remedies for Licensor's
default hereunder shall be (i) to obtain the repair,
replacement or correction of the defective Licensed
Product to the extent, if any, warranted under
Section 9 ("Warranties") or, if Licensor reasonably
determines that such remedy is not economically or
technically feasible, (ii) to obtain an equitable
partial or full refund of amounts paid with respect
to the defective Licensed Product. It is agreed that
these remedies shall be exclusive even if they fail
of their essential purpose.
(b) Liabilities. LICENSOR SHALL NOT
BE LIABLE FOR ANY AMOUNT EXCEEDING THE TOTAL PORTION
OF THE CONTRACT PRICE ACTUALLY PAID BY LICENSEE. IN
NO EVENT SHALL LICENSOR BE LIABLE, WHETHER IN
CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE,
FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES
(INCLUDING LOST SAVINGS, LOST PROFIT OR BUSINESS
INTERRUPTION EVEN IF LICENSOR IS NOTIFIED IN ADVANCE
OF SUCH POSSIBILITY) ARISING OUT OF OR PERTAINING TO
THE SUBJECT MATTER OF THIS AGREEMENT. THIS LIMITATION
IS INDEPENDENT OF REMEDY LIMITS.
11. Notices. Notices sent to either
party shall be effective when delivered in person or
transmitted by fax machine, two (2) days after being
sent by overnight courier, or five (5) days after
being sent by first class mail postage prepaid. A
facsimile of this Agreement and notices generated in
good form by a fax machine (as well as a photocopy
thereof) shall be treated as "original" documents
admissible into evidence unless a document's
authenticity is genuinely placed in question.
12. Termination. Either party may,
in addition to other relief, terminate this Agreement
if the other party breaches any material provision
hereof and fails within ten (10) days after receipt
of notice of default to correct such default or to
commence corrective action reasonably acceptable to
the aggrieved party and proceed with due diligence to
completion. Either party shall be in default hereof
if it becomes insolvent, makes an assignment for the
benefit of its creditors, a receiver is appointed or
a petition in Bankruptcy is filed with respect to the
party and is not dismissed within thirty (30) days.
Termination shall have no effect on the parties'
rights or obligations to safeguard and respect
Confidential & Proprietary Information under
Section 8 ("Confidential & Proprietary
Information"), rights or obligations under Section 9
("Warranties"), Section 10 ("Limitation of Remedies
& Liabilities") or Section 17 ("Compliance with
Export Regulations").
13. Disputes, Choice of Law. Except
for certain emergency judicial relief authorized
under Section 8(c) ("Injunctive Relief"), all
disputes hereunder shall be submitted to a single
arbitrator who shall be a former judge or attorney
having experience in similar disputes. The
proceedings shall be conducted pursuant to the
Streamlined Arbitration Rules and Procedures and the
U.S. Arbitration Act, 9 U.S.C. Sec. 1 et seq.
("Arbitration Act"). The award of the
arbitrator shall include a written explanation of the
decision, shall be limited to remedies otherwise
available in court and shall be binding upon the
parties and enforceable in any court of competent
jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF
THE UNITED STATES AND CALIFORNIA, WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES. THE PARTIES WILL
INITIATE ANY DISPUTE RESOLUTION PROCEEDING IN SUCH
DESIGNATED STATE AND IRREVOCABLY CONSENT TO EXCLUSIVE
PERSONAL JURISDICTION AND VENUE THEREIN. The U.N.
Convention on Contracts for the International Sale of
Goods and the Unfair Contracts Act in the United
Kingdom shall not apply to this Agreement. Any claim
against Licensor will be brought within one (1) year
after it arose, or be barred.
14. Independent Contractor Status.
Each party and its employees are independent
contractors in relation to the other party with
respect to all matters arising under this Agreement.
Nothing herein shall be deemed to establish a
partnership, joint venture, association or employment
relationship between the parties. Each party shall
remain responsible, and shall indemnify and hold
harmless the other party, for the withholding and
payment of all Federal, state and local personal
income, wage, earnings, occupation, social security,
worker's compensation, unemployment, sickness and
disability insurance taxes, payroll levies or
employee benefit requirements (under ERISA, state law
or otherwise) now existing or hereafter enacted and
attributable to themselves and their respective
people.
15. Security, No Conflicts. Each
party agrees to inform the other of any information
made available to the other party that is classified
or restricted data, agrees to comply with the
security requirements imposed by any state or local
government, or by the United States Government, and
shall return all such material upon request. Each
party represents and warrants that its participation
in this Agreement does not conflict with any
contractual or other obligation of the party or
create any conflict of interest prohibited by the
U.S. Government or any other government and shall
promptly notify the other party if any such conflict
arises during the Term.
16. Insurance, Indemnity. Each party
shall maintain adequate insurance protection covering
its respective activities hereunder, including
coverage for statutory worker's compensation,
comprehensive general liability for bodily injury and
tangible property damage, as well as adequate
coverage for vehicles. Each party shall indemnify and
hold the other harmless from liability for bodily
injury, death and tangible property damage resulting
from the negligent or willfully injurious acts or
omissions of its officers, agents, employees or
representatives acting within the scope of their
work.
17. Compliance with Export
Regulations. Licensee has or shall obtain in
a timely manner all necessary or appropriate
licenses, permits or other governmental
authorizations or approvals; shall indemnify and hold
Licensor harmless from, and bear all expense of,
complying with all foreign or domestic laws,
regulations or requirements pertaining to the
importation, exportation, or use of the technology to
be developed or provided herein. Licensee shall not
directly or indirectly export or re-export (including
by transmission) any regulated technology to any
country to which such activity is restricted by U.S.
regulation or statute, without the prior written
consent, if required, of the Bureau of Export
Administration of the U.S. Department of Commerce.
This provision and the assurances made herein shall
survive termination of this Agreement.
18. U.S. Government Restricted
Rights.
(a) Department of Defense.
Notwithstanding any other provision hereof, Licensee
agrees that: (i) the Licensed Product is delivered as
"Commercial Computer Software" as defined in the
Rights in Commercial Computer Software clause at
DFARS 227.7202-3; (ii) the Licensed Product has been
developed entirely at private expense; (iii) Licensee
is solely responsible for any effects or costs in
connection with modifications of the Licensed Product
independently made by or for DOD including, but not
limited to, impacts on compatibility or support; (iv)
the Licensed Product is deemed to be adequately
marked when the legend below is affixed to the
Licensed Product or its storage media perceptible
directly or with the aid of a machine or device, and
(v) for the purposes of this Section, DFARS shall
include any applicable successor or replacement
clause or regulation.
RESTRICTED RIGHTS LEGEND
Use, duplication or disclosure by the Government is
subject to restrictions as set forth in the Rights in
Commercial Computer Software clause at DFARS
227.7202-3. The contractor is Marauder Corporation
dba Bill Collector in a Box, and its address is
74-923 Hwy 111, Indian Wells, Ca 92210.
(b) Civilian Agencies.
Notwithstanding any other provision hereof, Licensee
agrees that: (i) the Licensed Product and
Documentation are "restricted computer software" as
defined in the Commercial Computer
Software--Restricted Rights clause at FAR 52.227-19;
(ii) the Licensed Product was developed entirely at
private expense; (iii) the Licensed Product is
delivered with only the specific rights set forth in
subparagraph (c)(2) of the Commercial Computer
Software--Restricted Rights clause at FAR 52.227-19;
(iv) the Licensed Product is deemed to be adequately
marked when the legend below is affixed to the
Licensed Product or its storage media:
RESTRICTED RIGHTS LEGEND
Notice- Notwithstanding any other lease or license
agreement that may pertain to, or accompany the
delivery of, this restricted computer software, the
rights of the Government regarding its use,
reproduction and disclosure are as set forth in
subparagraph (c)(2) of the Commercial Computer
Software- Restricted Rights clause at FAR
52.227-19.
Miscellaneous. This document and the
accompanying attachments specifically referenced
herein constitute the entire agreement between the
parties with respect to the subject matter hereof and
supersede all other communications, whether written
or oral. This Agreement may be modified or amended
only by a writing signed by the party against whom
enforcement is sought. Except as specifically
permitted herein, neither this Agreement nor any
rights or obligations hereunder may be transferred or
assigned by Licensee without Licensor's prior written
consent and any attempt to the contrary shall be
void. Licensor reserves all rights not specifically
granted herein. Neither party shall be liable for
delays caused by events beyond its reasonable
control, except non-payment of amounts due hereunder
shall not be excused by this provision. Any provision
hereof found by a tribunal of competent jurisdiction
to be illegal or unenforceable shall be automatically
conformed to the minimum requirements of law and all
other provisions shall remain in full force and
effect. Waiver of any provision hereof in one
instance shall not preclude enforcement thereof on
future occasions. Headings are for reference purposes
only and have no substantive effect.
IN WITNESS WHEREOF, for adequate consideration and
intending to be legally bound, the parties hereto
have caused this Agreement to be executed by their
duly authorized representatives.
Marauder Corporation dba Bill Collector in a
Box
By: Bill Collector in a Box (tm)
Name: Ryon Gambill
Title: President
Date: 1-5-2008
Administrative Contact:
Name/Title: R. Silvers
Email: rjsilvers@collection-professionals.com
Phone: 760-423-1122
PRODUCT SCHEDULE
Licensed Product Name Bill Collector in a
BoxT
Annual Support Fee: $99.00
Licensor reserves the right to increase the Annual
Support Fee annually, by up to 10 percent beyond the
previous year's Support Fee, commencing with the 1st
Support Year for the applicable Operating License.
The price protection on Support Fees described above
does not apply to any pass-through support costs on
third party products that may be licensed
hereunder.
Training Fee: $0.00
For more information, please call us directly -
we are available Monday through Friday 8am-4pm PST,
and offer limited support via email after hours and
on weekends.
Telephone Support:
1-800-650-5118
Email Support: support@billcollectorinabox.com
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