Terms and Conditions
Limited Software License Agreement
This Software License Agreement is between The Autism Helper Inc, an Illinois company with its principal place of business at 827 S. Crescent, Park Ridge IL (“COMPANY”) and the end user of the software product (“Licensee”).
The parties agree to the following terms.
- License Grant. The license consists of the software for teachers working with students with autism that grant access to COMPANY’S curriculum (“Software”). A Limited Software License (“LSL“) will be Licensed as a Temporary License to Licensee. Upon the issuance of this Agreement, and as long as regular payments are being processed, COMPANY hereby grants to Licensee an exclusive, temporary, non-perpetual, nontransferable, sublicensable License to use the Licensed Soft ware. Prior to Licensee sublicensing Software, Sublicensees must be approved by COMPANY. Any Sublicensee not approved by COMPANY must cease using the software immediately or COMPANY will have the option set forth in Paragraph 1.2 below.
- Unauthorized Sublicensee or Unauthorized Location. If an Unauthorized Sublicensee is found to be using the Software without COMPANY’s consent, Licensee will be given written notice of the violation. Licensee will then have three (3) business days to cure the violation and cease all processing of the Software with Unauthorized Sublicensee, unless otherwise communicated to Licensee in writing. If Licensee continues to allow Unauthorized Sublicensee to operate the Software, then Licensee is subject to a fine of $5,000 total for each location or entity found on the same day included in each notice, out of compliance, starting on Day 4 of notice. This fine will be paid within 30 days. If additional Unauthorized Sublicensee’s are found on a later date, the Licensee will be fined an additional initial fee of $5,000 on that date. COMPANY will not intentionally separate notices for separate days in order to purposefully increase the amount of the fine. If COMPANY discovers that Licensee is operating locations without approval, COMPANY will include all locations that they are aware of in the same notice. If the Unauthorized Sublicensee continues to operate with the Soft war e, then an additional fine of $1,000 for each day beginning on day 11, per location, will be imposed until the Unauthorized Sublicensee has ceased to use the software or becomes in compliance and approved, with a maximum fine amount of $20,000 per location, not including the initial $5,000 fee. The Unauthorized Sublicensee will not have access to the Software past 30 days of original notice violation. For example, if an Unauthorized Licensee is operating 5 stores with software that hasn’t been authorized by COMPANY, Licensee will be subject to an initial fine of $5,000 if notice is received on the same day, followed by $1,000 per day beginning on day 11, for each location still operating without COMPANY approval. Maximum fine amount under this example will be 5 stores multiplied by $19,000 or up to $95,000. Access will be denied by COMPANY for Unauthorized Sublicensee on day 31 of violation. The additional fees are to be paid within 30 days of notice. COMPANY holds the right to refuse to fine Licensee or lower the fine fee. If Unauthorized Sublicensee is not remedied within the first 30 days of written notice, COMPANY has the right to render the Software inoperable. Software will be made available upon COMPANY’s approval. Fines during this time are capped at $100,000 for the total occurrence. COMPANY reserves the right to fully suspend access of the Software to Licensee after Day 30 of Licensee being notified, until the Unauthorized Use has been remedied by Licensee.
Description of Limited Software License (“LSL”). In addition to these terms, there is the Permitted Uses, set forth in Paragraph 11, and Restricted Uses, set forth in Paragraph 12 below.
- Per the terms of this Agreement, Licensee is forbidden from copying the Software, unless expressly permitted, and from reverse-engineering, decompiling, or disassembling the software. Some restrictions may be limited by applicable law.
- Licensee is prohibited from transferring, sub-licensing without approval, or providing third parties with access to the software, unless the third parties are approved by COMPANY or acceptable merchants or sales agents of Licensee that would be selling to locations approved by COMPANY and/or acceptable locations, as set forth in Paragraph 1.3(d). Neither party may assign the rights and obligations of this Agreement to a third party or affiliate, without the express written approval of the other party to this Agreement, which shall not be unreasonably withheld. If allowing this would or could in any way be harmful to the other party of this Agreement, that party may deny such a request.
- License will be exclusive during the term, except for COMPANY having the rights to operate the Software.
- Licensee has the right to any modifications to the Software that are approved by COMPANY. COMPANY will approve all reasonable requests within a reasonable timeframe. COMPANY can also deny requests within a reasonable timeframe.
- Licensee will retain its License rights for the duration of this Limited Software License Agreement, even if COMPANY sells or transfers any or all its ownership rights to the Software, and such license will continue to be governed by the terms of this Agreement.
- One month prior to the expiration of the License, COMPANY will offer Licensee new terms for acquiring a License Renewal, using the same LSL rights and limitations as the initial License, unless both parties agree to new terms. Licensee can opt out of the License Renewal and then this Agreement is considered terminated once the Term of this Agreement ends.
- If Licensee chooses to renew the LSL with COMPANY’s new terms, COMPANY must renew Licensee’s LSL prior to 30 days of the current LSL expiring.
- COMPANY does not have the right to revoke any rights of the LSL during the Term of this Agreement, unless Licensee is in breach of this Agreement.
- COMPANY will NOT work with any of Licensee’s ISOs during the term of this Agreement.
- No other fees, except for agreed-upon License Fees, development fees, and consequential fines, will be charged to Licensee in order to use the Software. For the remainder of the Term, COMPANY may not adjust this fee without Licensee’s consent.
- For any Software requests or modifications, a Work Order will be provided to Licensee prior to beginning any updates. The Work Order must be approved by Licensee before any work is to begin that Licensee would be required to pay for. Invoices will be presented to Licensee and the invoice price shall match the Work Order price, payment of which is due upon receipt.
- Licensee will be given full access to any Software during the LSL Term. COMPANY will not intentionally disrupt Licensee’s LSL, rights, or access to the Software. COMPANY will not allow any third-party to disrupt the Software or Licensee’s access to the Software.
- Make Software Available. Within 24 hours after the Software is made available by Developers, COMPANY will make the Software available to Licensee.
- Licensee shall be responsible for all its own technical support.
- Though COMPANY will make its best effort to ensure the functionality of the Software is as expected and functioning properly, it is not responsible for the functionality of the Software.
- Additional software costs incurred by COMPANY, due to updates requested by Licensee, will be paid by Licensee.
- Renewed Support. COMPANY will provide basic Software Development Support that may be required in order to keep its Developers on retainer. Licensee will be responsible for paying a reasonable annual fee of no more than $25,000 per year for basic Software Development Support to be offered, if required. Licensee may elect to renew COMPANY’s support services at any time.
- Initial Support.
- Updates. Licensee may choose to modify, update, or upgrade the software as necessary (collectively, “Updates”) with the approval of COMPANY. COMPANY will facilitate these Updates but Licensee will bear sole responsibility of all costs charged by the Developers for any approved updates that do not originate from COMPANY. Licensee will be notified 24 hours prior to any and all updates that will occur once the LSL has been approved.
- License Fees. Licensee will pay COMPANY a License Fee set forth in the pricing agreement. Additional changes outside of the project’s scope requested by Licensee will be billed as Updates. COMPANY maintains the right to waive or impose License fees, including but not limited to monthly, compliance, processing, equipment, technology, development, high-risk, annual, audit, denial, download fees, or any other such fees deemed reasonable by COMPANY.
- Taxes. Licensee will pay all Sales Tax charged by COMPANY during the term of the Agreement.
- Interest on Late Payments. In the sole discretion of COMPANY, any amount not paid when due will bear interest from the due date until paid at a rate equal to 12% annually or 1% monthly.
- Duration of Agreement. The initial term is for twelve 12 months, beginning on the Effective Date. The term may be renewed at the discretion of COMPANY for another 24 months once the initial term expires.
COMPANY Restricted Uses. COMPANY will be in Breach of this Agreement if it engages in the following:
- Distribute, license (except for Licensing to Licensee), loan, or sell the Software or other content that is contained or displayed in the Software without notifying Licensee.
- Modify, alter, or create any derivative works from the Software, without notifying Licensee.
- The use of the Software must comply with COMPANY’s policies, which requires Licensee to:
- Maintain the confidentiality of the software data.
- Prohibit the use of the data/software other than for its benefit.
- Licensee may request updates and software checks if deemed appropriate and essential for the continuation of the business.
- Licensee is permitted to obtain access to licensed data that is permitted under the terms of this Agreement and limited in scope.
- The use of the Software must comply with COMPANY’s policies, which requires Licensee to:
Licensee Restricted Uses.
- Licensee will not, for as long as Software is Licensed, use this software for high-risk business without the explicit approval of COMPANY. High-risk locations are defined above under Paragraph 1.3, Description of Limited Software License.
- Licensee further agrees it will not:
- Reverse engineer, decompile, decode, decrypt, disassemble, or derive any source code from the Soft ware.
- Remove, alter, or obscure any copyright, trademark, or proprietary rights notice on or in the Software.
- Term. The term shall be for a period of twelve (12) months, beginning on either the Effective Date set forth below, or at the time Licensee commences use of the Software, whichever is first. (“Term”).
- Authority and Capacity. The parties have the authority and capacity to enter into this agreement.
- Execution and Delivery. The parties have duly executed and delivered this agreement.
- Enforceability. This agreement constitutes a legal, valid, and binding obligation, enforceable against the parties according to its terms.
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.
Binding Agreements. Any current binding agreements that could potentially affect Licensee from performing under this agreement needs to be made known to COMPANY and be approved prior to signing this agreement.
Licensee must make COMPANY aware, by presenting any contract(s) via email to COMPANY prior to signing, of the obligations regarding any deal that could potentially affect COMPANY or Licensee and the rights and duties that both parties have pertaining to this Agreement, including, but not limited to, Software interference. Any failure under this paragraph constitutes a breach and allows COMPANY the option to give Licensee a 5-day written cure period prior to imposing the consequences described in this agreement.
- All agreements and applications need to be approved by COMPANY to make sure there is not a conflict of interest.
- Binding Agreements. Any current binding agreements that could potentially affect Licensee from performing under this agreement needs to be made known to COMPANY and be approved prior to signing this agreement.
No Breach. Neither party‘ s execution, delivery, or performance of its obligations under this Agreement will breach or result in a default under:
- its articles, bylaws, or any unanimous shareholders agreement,
- any Law to which it is subject,
- any judgment, order, or decree of any Governmental Authority to which it is subject, or
- any agreement to which it is a party or by which it is bound.
- No Disputes or Proceedings. There are no Legal Proceedings pending, threatened, or foreseeable against either party that would affect that party’s ability to complete its obligations under this agreement.
- No Bankruptcy. Neither party has taken or authorized any proceedings related to that party’s bankruptcy, insolvency, liquidation, dissolution, or winding up.
- Ownership of Intellectual Property. COMPANY is the owner of all Intellectual Property rights included in the Software and has the exclusive right to grant the License for the Software.
- Maintenance of Intellectual Property. COMPANY will properly maintain all its Intellectual Property rights Licensed under the Software, including paying all applicable development and maintenance fees. Any nonpayment of fees by COMPANY to any Developers that would jeopardize the Software, or cause prolonged interruption to the Software, is a Breach of this Agreement and COMPANY will be responsible to damages caused to Licensee.
- No Prior Grant or Transfer. COMPANY has not granted and will not grant any License to any third party that would conflict with the Software under this agreement.
- No Infringement. To COMPANY’s knowledge, the Software does not infringe the Intellectual Property rights or other rights of any third party.
- No Third-Party Infringement. To COMPANY’s knowledge, no third party is infringing its Intellectual Property rights in the Soft ware.
- Not in Public Domain. The Software is not in the public domain.
- Mutual Representations
- “As-ls”. The Licensed Software is provided “as is,” with all faults, defects, bugs, and errors. COMPANY will make its best effort to render the Software functional but makes no guarantees.
- No Warranty. Unless otherwise listed in this agreement, COMPANY does not make any warranty regarding the Licensed Software, except for maintaining its full rights to the Software and to License the Software to Licensee.
- Intellectual Property. COMPANY retains 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. COMPANY is the only Company authorized to continue to operate and use the software other than the Licensee during the term of this agreement.
- Audits. COMPANY holds the right to impose reasonable requests to verify that the LSL is being used within the terms of this Agreement. Reasonable requests will not be cumbersome, but requests are to be honored as they are enforceable within the terms of this Agreement.
- Confidentiality Obligations. The parties continue to be bound by the terms of the non-disclosure agreement between the parties, and, under these terms, Licensee is not required to give COMPANY any sensitive data, including technical knowledge.
- Termination with Notice. COMPANY may terminate this agreement with a 30-day cure period if Licensee fails to make agreed payments. The 30-day notice must be given to Licensee via email, text, and registered mail, at the email address, phone number, and address provided, informing Licensee that the LSL will be terminated in 30 days unless Licensee satisfies all payment obligations. Communication must also include any outstanding account balances.
Early Termination. Early termination will be granted if Licensee provides COMPANY with a written notice of early termination 60 days prior to termination; in this event, a fee of $500 will be incurred by Licensee in addition to the agreed upon price listed in agreement, due on the day of or prior to the date of termination.
- Regardless of termination under this paragraph, the Parties are still obligated to refrain from interfering with the deals/locations that each party currently has processing.
Effect of Termination or Expiration.
Payment Obligations. Even after termination or expiration of this agreement, each party will pay:
- any amount(s) it owes to the other party, including payment obligations for services already rendered, work already performed, goods already delivered, or expenses already incurred, and
- any payments received but not yet earned, including payments for services not rendered, work not performed, or goods not delivered, expenses forwarded.
- No Further Liability. On termination or expiration of this agreement, neither party will be liable to the other party, except for liability that arose before the termination or expiration of this agreement.
- Payment Obligations. Even after termination or expiration of this agreement, each party will pay:
- In the event COMPANY breaches the Agreement and is unable to cure within 30 days, then Licensee possesses the exclusive remedy of entitlement to a refund of any remaining payments owed on the Software. To exercise this remedy, Licensee must release its right to use the Software, which is deemed a termination event under the License. COMPANY agrees that in this event, it will communicate to Licensee in writing regarding any Sale, Transfer, Licensing of Software, or any other action that would grant third-party rights to the Software, no less than 60 days PRIOR to any agreement being signed by COMPANY. The penalty for failure to comply will be $250,000 PLUS the entire amount of money that is agreed to be paid to COMPANY by the party that wants to acquire the rights to the Software. Licensee must be given the exact terms of what the agreement will be as well as the option to meet those same. All penalties imposed on COMPANY from Licensee are null if Licensee provides an express, clear, written, with no room for interpretation, approval of any Sale, Transfer, Licensing of Software, or any other action that would grant a third-party right to the Software. This clause is a perpetual clause. Any breach of agreement at any point, will still incur a fine on the party that breached agreement.
- If Licensee is in breach, it is subject to fines imposed within this Agreement, both during the term of this agreement and once it has expired.
- Return of Property. On termination or expiration of this agreement, or on the other party’s request, each party will return to the other party all of the information and other property, including Intellectual Property, both originals and copies, received from the other party.
Indemnification by Licensee. Licensee (as an indemnifying party) shall indemnify COMPANY (as an indemnified party) against all losses and expenses in connection with any proceeding arising out of:
- Licensee’s use of the Software,
- The use of the Software by the customers of Licensee, and
- Licensee’s unauthorized customization, modification, or other alterations to the Software, including claims that its customization, modification, or other alterations infringe a third party’s Intellectual Property rights.
- Indemnification by Licensee. Licensee (as an indemnifying party) shall indemnify COMPANY (as an indemnified party) against all losses and expenses in connection with any proceeding arising out of:
- Mutual Indemnification. Each party (as an indemnifying party) shall indemnify the other (as an indemnified party) against all losses in connection with any proceeding arising out of the indemnifying party’s willful misconduct or gross negligence.
- Nondisclosure. For a period of sixty (60) months from Effective Date, Licensee shall hold in trust and confidence, and not disclose to others or use for their own benefit or for the benefit of another, any Proprietary Information that is disclosed. Licensee shall disclose Proprietary Information received under this Agreement to person within its organization only if such persons (i) have a need to know and (ii) are bound in writing to protect the confidentiality of such Proprietary Information. This paragraph shall survive and continue after any expiration or termination of this Agreement and shall bind Licensee, its employees, agents, representatives, successors, heirs and assigns. The undertakings and obligations of Licensee under this Agreement shall not apply to any Proprietary Information which: (a) is described in an issued patent anywhere in the world, is disclosed in a printed publication available to the public, or is otherwise in the public domain through no action or fault of Recipient; (b) is generally disclosed to third parties without restriction on such third parties, or is approved for release by written authorization; (c) if not designated “confidential” at the time of first disclosure hereunder, or is not later designated in writing within thirty (30) days from disclosure to be of a secret, confidential or proprietary nature; or (d) is shown within ten (10) days from disclosure, by underlying documentation to have been known by Licensee before receipt and/or to have been developed by Licensee completely independent of any disclosure.
- Integrated Agreement. This Agreement constitutes the entire understanding of the parties and supersedes any other agreement between them, written or oral.
- Signed in Counterparts. This agreement may be signed in any number of counterparts.
- All Counterparts Original. Each counterpart is an original.
- Counterparts Form One Document. Together, all counterparts form one single document.
- Amendment. This agreement can be amended only in writing and agreed upon by both parties.
- Assignment. Neither party may assign this agreement or any of their rights or obligations under this agreement without the other party’s written consent, which shall not be unreasonably withheld.
Governing Law and Consent to Jurisdiction and Venue
- Governing Law. This agreement, and any dispute arising, shall be governed by the laws of the State of Illinois.
- Consent to Jurisdiction. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of Cook County, Illinois in connection with any matter arising out of this agreement or the transactions contemplated under this agreement.
- Written Waivers. A waiver or extension is only effective if it is in writing and signed by the party granting it.
- No General Waivers. A party’s failure or neglect to enforce any of its rights under this agreement will not be deemed to be a waiver of that or any other of its rights.
- No Course of Dealing. No single or partial exercise of any right or remedy will preclude any other further exercise of such right or remedy.
- Severability. If any part of this agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.