WHEREAS, Licensor has designed and developed a proprietary software operating system for automobile dealers ( “the ZEUS SOFTWARE.”) and
WHEREAS, Licensee desires to lease the ZEUS SOFTWARE for use in its business operations: and
WHEREAS, Licensor desires to lease the ZEUS SOFTWARE to Licensee.
NOW, THEREFORE in consideration of good and valuable consideration, receipt of which is acknowledged, Licensor and Licensee agree as follows (‘the Agreement”):
1. THE SOFTWARE LICENSE: Licensor shall provide to and shall install on Licensee’s system, a NON-EXCLUSIVE USEAGE LICENSE for ZEUS SOFTWARE.(the “License”).
2. INITIAL TERM AND RENEWAL: The initial term of this Agreement shall be one month commencing on the first day of the month following execution by the last to sign this Agreement, and ending on the last day of said month. The Agreement shall automatically renew for one month, on the same terms and conditions. Either Party may renew or not, with or without cause. In the event a renewal does not take place, any unpaid fees are immediately due and owing, and all ZEUS SOFTWARE, Subsequent Releases and other materials must be immediately returned by Licensee to Licensor, or Licensee shall give Licensor or its agent(s) immediate access to its premises to remove the same.
3. SUBSEQUENT RELEASES: During the term of this Agreement, Licensor, from time-to-time, may issue subsequent releases such as updates, additions to, or newly created versions of, the ZEUS SOFTWARE (”Subsequent Releases”) which Licensor may, in its sole discretion, offer to Licensee on such terms as the Licensor determines. All provided Subsequent Releases shall automatically be incorporated into this Agreement.
4. INSTALLATION OF ZEUS SOFTWARE: So long as this Agreement is in effect, all installations of ZEUS SOFTWARE and any Subsequent Releases thereof, shall be limited to equipment located as stated in Paragraph 6, below, exclusively by Licensor or its designated agent(s).
5. ZEUS SOFTWARE PROPRIETARY: Initial ZEUS SOFTWARE and any Subsequent Releases hereinafter provided to Licensee, are proprietary to Licensor and subject to all Intellectual property rights to which Licensor is entitled under the laws of the State of Illinois and the United States, obligating Licensee at all times to preserve, keep in confidence and prevent transmission by any means whatsoever, to any third party or device, information and/or documentation received from Licensor regarding the ZEUS SOFTWARE and all Subsequent Releases thereof.
6. LOCATION OF ZEUS SOFTWARE: Licensee agrees at all times to keep the ZEUS SOFTWARE, at the Licensee's principal place of business only, as listed in the opening Paragraph of this Agreement.
7. LICENSEE FEES: Licensee agrees to pay Licensor on or before the first day of each month after free trial period.
8. CHANGE OF OWNERSHIP: upon Licensee’s proposal to a change of ownership, Including transfer of the ZEUS SOFTWARE License, Licensee must not less then 45 busines days prior to completion of such change, give written notice of its plans to Licensor, who must within 15 business days from notice receipt, give its written consent, in its sole discretion. Licensor must also advise the new owner that as a condition precedent to concluding the change, the new owner must execute a new License Agreement satisfactory to Licensor, in its sole discretion, or the License will not be authorized nor included in the change of ownership transaction. If the transactions closes without securing a new license agreement with Licensor, Licensor shall be deemed a third party beneficiary with respect to any change of ownership transaction entitling it to obtain relief from a court of competent jurisdiction, including but not limited to a permanent injunction against the new owner’s use of the License acquired as part of the change of ownership and ordering the new owner to immediately return all items or things included in the License to Licensor.
9. TITLE, OWNERSHIP OF THE ZEUS SOFTWARE. Under no circumstances shall Licensee’s use of the ZEUS SOFTWARE, including any Subsequent Releases thereof, vest any right title or interest therein, in Licensee, in whole or in part, during or subsequent to the termination of this Agreement, unless Licensor shall in writing, grant, in whole or in part, any right title or interest in the ZEUS SOFTWARE, to Licensee.
10. WARRANTY: Notwithstanding anything in any provision of this Agreement to the contrary, Licensee expressly understands and accepts Licensor’s disclaimer of any representation, warranty or covenant, express or implied on which Licensee may rely, with respect to the suitability of the ZEUS SOFTWARE for Licensee's purpose. All ZEUS SOFTWARE and Subsequent Releases accepted and used by Licensee on a "WHERE IS, AS IS, WITH ALL FAULTS " basis.
11. LIABILITY OF LICENSEE : The Parties acknowledge that it is impossible to place a dollar value on damages suffered by Licensor in the event of a Licensee violation of any condition in this Agreement and therefore agree that In the event of a Licensee violation, Licensor shall be entitled to entry of a permanent injunction against Licensee, plus the sum of $1.00, plus payment by Licensee, of Licensor’s all costs of enforcing this Agreement, including reasonable attorney’s fees.
12. LIABILITY OF LICENSOR: Licensor’s liability to Licensee for any loss or damage, including consequential or incidental damages, caused or alleged to be caused, directly or indirectly, by any inadequacy, deficiency or defect in the ZEUS SOFTWARE, shall be one monthly fee, in place at the time Licensor’s liability is finally established by the appropriate adjudicative body.
13. VIOLATIONS OF THIS AGREEMENT: The occurrence of any of the following constitute violation(s) hereof:
a. the institution by or against the Licensee of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of Licensee’s debts.
b. Licensee making an assignment for the benefit of creditors.
c. Licensee’s dissolution or ceasing to do business, including any arms length sale of its business, in whole or in part, to a third party.
d.. any attempt by Licensee to copy or permanently keep any ZEUS SOFTWARE or Subsequent Releases thereof received by Licensee from Licensor, without the express written permission of Licensor, who may or may not give, in its sole discretion.
e. The Change of Ownership Provisions set forth in Paragraph 8, above.
f. and/or failure to strictly adhere to any other provision of this Agreement, shall, upon written notice by Licensor to Licensee, constitute a violation of this Agreement, and Licensor in its sole discretion may elect, and Licensee agrees not to oppose, to immediately terminate this Agreement in accordance with the provisions of Paragraph 15, below, or grant Licensee time up to 30 business days to cure the violation(s).
14.TERMINATION shall become effective upon:
1.written notice (“Termnation Notice”) from Licensor to Licensee at the address appearing inParagraph 16, below.
2.The Termination Notice shall list the violation(s) underlying the termination.
3.The Termination Notice shall be delivered via any licensed carrier, special delivery, andLicensee signed return receipt.
15.RETURN OF ZEUS SOFTWARE: Upon termination of this Agreement, Licensee agrees toimmediately return, and/or enable Licensor or its agent to retrieve all ZEUS SOFTWARE, in Licensee’spossession, including all Subsequent Releases, and any and all other information, documentation and/or materials regarding ZEUS SOFTWARE.
16. GOVERNING LAW: This Agreement shall be governed by the laws of the State of Illinois, including its conflict of laws rules.
17. SEVERABILITY: If any portion of the Agreement is found to be in violation of applicable law, then that portion and only that portion is void, and all remaining provisions shall remain in full force and effect.