APPLICATION SERVICE PROVIDER AGREEMENT
THIS AGREEMENT (“Agreement”) is entered into this [date], by and between [name of Licensor], a [State] corporation with offices at [address] (“Licensor”), and [name of Licensee], a [State] corporation with offices at [address] (“Licensee”).
W I T N E S S E T H:
WHEREAS, Licensor is engaged in the business of designing and developing software applications and related services and has created and developed a software application called [name of product] that is intended to [describe function of software application] and is described in greater detail in the attached Exhibit “A” (the “Application”);
WHEREAS, Licensee maintains an Internet Web site (the “Web site”) and desires to obtain access to the Application and Licensor's application services; and
WHEREAS, Licensor is willing to enter into an agreement with Licensee whereby Licensee will obtain access to the Application on Licensor's server.
NOW, THEREFORE, in consideration of the premises and mutual covenants of this Agreement, the Parties hereto agree as follows:
1. LICENSE GRANT
A. Licensor hereby grants to Licensee, for the term of this Agreement, a non-exclusive, non-assignable, limited personal right and license to allow the Permitted Users to use the Application. Licensee may access the Application in connection with a Web site page on its Internet Web site.
B. No right of license is being conveyed to Licensee to use the Application at any other location. Licensee is prohibited from making any copies, archival or otherwise, of the Application. Licensee is further prohibited from using the Application in any manner other than as described above.
2. LICENSOR’S RESPONSIBILITIES
A. Licensor shall provide Licensee with the Application.
B. Licensor shall use reasonable efforts to make the Application available twenty-four (24) hours per day, seven (7) days a week, excluding:
i. Scheduled downtime for systems maintenance, including without limitation diagnostics, upgrades, and operations reconfiguration.
ii. Unscheduled downtime caused by other forces beyond the immediate control of Licensor, including software defects, hardware failures, or downtime caused by Licensee's network or the Internet.
3. LICENSEE’S RESPONSIBILITIES
Licensee shall not, nor permit any third party to: (A) copy the Application; (B) modify, translate, or otherwise create derivative works of the Application; (C) disassemble, decompile, or reverse-engineer the object code or source code of the Application; (D) publish, or otherwise make available to any third party, any benchmark testing information or results; or (E) export or re-export the Application in violation of any U.S. export law or regulation.
4. COMPENSATION
In consideration for the license granted hereunder and during the Initial Term of the Agreement and for each Extended Term, Licensee agrees to pay to Licensor the User Fee recited in Schedule A (the “User Fee”).
5. INTELLECTUAL PROPERTY
Licensor and its licensors (if any) exclusively own all intellectual property rights, title, and interest in any ideas, concepts, know-how, documentation or techniques Licensor provides under this Agreement, and all technology available on Licensor's Servers. Licensee agrees and acknowledges that no title to the Application or any aspect of the Application shall pass to Licensee under this Agreement.
6. PERMITTED USERS
Licensee shall identify Licensee employees who are Permitted Users and who will receive passwords and keys to use the Application for the purposes permitted by this Agreement. Licensee shall provide to Licensor a list of such Permitted Users and shall provide periodic updates as necessary. Licensee will take such actions as are necessary in order for it to maintain the confidentiality of, and prevent the unauthorized use of, each password and key, including entering into appropriate agreements with its employees who are Permitted Users. Licensee will immediately notify Licensor in writing if Licensee determines, or has reason to believe, that an unauthorized party has gained access to a password or key. Licensee authorizes Licensor to rely upon any information and/or instructions set forth in any data transmission using the assigned password or key, without making further investigation or inquiry, and regardless of the actual identity of the individual transmitting the same, in connection with the operation of Licensor. Use of the assigned password or key, whether or not authorized by Licensee, shall be solely the responsibility of and the risk of Licensee. Licensee shall indemnify, defend, and hold harmless Licensor from any claim, proceeding, loss, or damages based upon any use, misuse, or unauthorized use of Licensee's passwords and keys.
7. CONFIDENTIALITY
A. “Confidential Information” shall mean any confidential technical data, trade secret, know-how, or other confidential information disclosed by any party hereunder in writing, orally, or by drawing or other form and which shall be marked by the disclosing party as “Confidential” or “Proprietary.” If such information is disclosed orally, or through demonstration, in order to be deemed Confidential Information, it must be specifically designated as being of a confidential nature at the time of disclosure and reduced in writing and delivered to the receiving party within [number] ([#]) days of such disclosure.
B. Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is known to the receiving party at the time of disclosure or becomes known to the receiving party without breach of this Agreement; (ii) is or becomes publicly known through no wrongful act of the receiving party or any subsidiary of the receiving party; (iii) is rightfully received from a third party without restriction on disclosure; (iv) is independently developed by the receiving party or any of its subsidiaries; (v) is furnished to any third party by the disclosing party without restriction on its disclosure; (vi) is approved for release upon a prior written consent of the disclosing party; or (vii) is disclosed pursuant to judicial order, pursuant to requirement of a governmental agency, or by operation of law.
C. The receiving party agrees that it will not disclose any Confidential Information to any third party and will not use Confidential Information of the disclosing party for any purpose other than for the performance of the rights and obligations hereunder during the term of this Agreement and for a period of [number] ([#]) years thereafter, without the prior written consent of the disclosing party. The receiving party further agrees that Confidential Information shall remain the sole property of the disclosing party and that it will take all reasonable precautions to prevent employees from disclosing Confidential Information. No license shall be granted by the disclosing party to the receiving party with respect to Confidential Information disclosed hereunder unless otherwise expressly provided herein.
D. Upon the request of the disclosing party, the receiving party will promptly return all Confidential Information furnished hereunder and all copies thereof.
E. The Parties agree that all publicity and public announcements concerning the formation and existence of this Agreement shall be jointly planned and coordinated by and among the Parties. Neither party shall disclose any of the specific terms of this Agreement to any third party without the prior written consent of the other party, which consent shall not be withheld unreasonably. Notwithstanding the foregoing, any party may disclose information concerning this Agreement as required by the rules, orders, regulations, subpoenas, or directives of a court, government, or governmental agency, after giving prior notice to the other party.
F. If a party breaches any of its obligations with respect to confidentiality and unauthorized use of Confidential Information hereunder, the non-breaching party shall be entitled to equitable relief to protect its interest therein, including but not limited to injunctive relief, as well as money damages notwithstanding anything to the contrary contained herein.
G. Except as otherwise set forth in this Agreement, neither party will make any public statement, press release, or other announcement relating to the terms of or existence of this Agreement without the prior written approval of the other, which approval shall not be unreasonably withheld.
8. TERM
This Agreement shall be effective as of the date of execution by both Parties and shall extend for the period of [number] year(s) thereafter (the “Initial Term”). This Agreement shall be automatically renewed for additional [number]-year Extended Terms unless Licensee shall provide the Licensor in writing of its intention not to renew the Agreement, said notice to be provided at least [number] days prior to the expiration of the then-in-effect Term.
9. TERMINATION
The following termination rights are in addition to the termination rights that may be provided elsewhere in the Agreement:
A. Right to Terminate upon Notice. Either party may terminate this Agreement on [number] days' written notice to the other party in the event of a breach of any provision of this Agreement by the other party, provided that, during the [number]-day period, the breaching party fails to cure such breach.
B. Licensee Right to Terminate. Licensee shall have the right to terminate this Agreement at any time on [number] months' written notice to Licensor for any reason.
10. POST-TERMINATION RIGHTS
A. Upon the expiration or termination of this Agreement, all rights granted to Licensee under this Agreement shall forthwith terminate and immediately revert to Licensor and Licensee shall discontinue all use of the Application and the like.
B. Upon expiration or termination of this Agreement, Licensor may require that Licensee transmit to Licensor, at no cost, all material relating to the Application.
11. WARRANTIES AND INDEMNITY
A. Licensor further represents and warrants that it has no actual knowledge that Licensee's use of the Application infringes any valid rights of any third party.
B. Licensor warrants that the Application will perform in accordance with the specifications provided by Licensor to Licensee, a copy of which will be added to this Agreement. THE WARRANTY PROVIDED FOR HEREIN IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, THAT MAY ARISE EITHER BY AGREEMENT BETWEEN THE PARTIES OR BY OPERATION OF LAW, INCLUDING THE WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
C. Licensee agrees to defend, indemnify, and hold Licensor, and its officers, directors, agents, and employees, harmless against all costs, expenses, and losses (including reasonable attorney's fees and costs) incurred through claims of third parties against Licensor based on its use of the Application including, but not limited to, actions founded on product liability.
D. Licensor agrees to defend, indemnify, and hold Licensee, and its officers, directors, agents, and employees, harmless against all costs, expenses, and losses (including reasonable attorney's fees and costs) incurred through claims of third parties against Licensee based on a breach by Licensor of any representation and warranty made in this Agreement.
12. IMPROVEMENTS
Any improvements or modifications made by Licensor to the Application shall be promptly made available to Licensee and shall be automatically included in this Agreement.
13. FORCE MAJEURE
Neither party will be liable for, or will be considered to be in breach of or default under, this Agreement on account of any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party's reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
14. NOTICE AND PAYMENT
A. Any notice required to be given under this Agreement shall be in writing and delivered personally to the other designated party at the above-stated address or mailed by certified, registered, or Express mail, return receipt requested or by Federal Express.
B. Either party may change the address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.
15. JURISDICTION
This Agreement shall be governed in accordance with the laws of the State of [State]. All disputes under this Agreement shall be resolved by litigation in the courts of the State of [State], including the federal courts therein, and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.
16. AGREEMENT BINDING ON SUCCESSORS
The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors, and assigns.
17. ASSIGNABILITY
Neither party may assign this Agreement or the rights and obligations hereunder to any third party without the prior express written approval of the other party which shall not be unreasonably withheld.
18. WAIVER
No waiver by either party of any default shall be deemed a waiver of prior or subsequent default of the same or of other provisions of this Agreement.
19. SEVERABILITY
If any term, clause, or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause, or provision and such invalid term, clause, or provision shall be deemed to be severed from the Agreement.
20. INTEGRATION
This Agreement constitutes the entire understanding of the Parties, and revokes and supersedes all prior agreements between the Parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the Parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents which may conflict with this Agreement.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have each caused to be affixed hereto its or his or her hand and seal the day indicated.
[Licensor]						 [Licensee]
By: 						By:
Title: 						Title:
Date: 						Date:

SCHEDULE A
1. User Fee
During the Initial Term of this Agreement, the User Fee shall be [amount] U.S. Dollars ($[#]). For each Extended Term, the User Fee shall be [amount] U.S. Dollars ($[#]).
EXHIBIT A
[Attach detailed description of the application]