SOFTWARE LEASE AGREEMENT
PLEASE READ THIS LEASE AGREEMENT CAREFULLY BEFORE OPENING THE SEALED
PACKAGE. BY DOWNLOADING AND INSTALLING THE SOFTWARE PACKAGE, YOU ACKNOWLEDGE
AND ACCEPT THE TERMS AND CONDITIONS OF THE SOFTWARE LEASE AGREEMENT BELOW:
This SOFTWARE LEASE AGREEMENT is entered into, by and between
TimberWolf Systems, Inc., a Texas corporation located at 10880 Cassandra Way,
Dallas, Texas 75228 (hereinafter the "Lessor"), and
_____________________________ located at
_________________________________________ (hereinafter the "Lessee"),
to lease its Software Product set forth in Exhibit A. Effective this ______ day
of ____________, 200___ upon the terms and conditions hereinafter set forth,
for the consideration stated herein.
||InternetCAD (iTools) Place and Route
SOFTWARE LOCATION: (IF OTHER THAN ABOVE ADDRESS OF CUSTOMER)
|Term of Lease
|No. of Lease Payments:
Rental Payments payable as follows:
|Insurance Costs (if applicable):
|Applicable Rental/Use Taxes to be Billed (or are included):
|Total Payment Per Period:
TERMS AND CONDITIONS
- LEASE. Lessor leases to Lessee and Lessee hereby hires and takes
from Lessor the personal property consisting of certain proprietary computer
software as set forth on the above lease schedule which shall include all
replacement parts, additions, upgrades and bug maintenance as shown in Exhibit B (hereinafter referred to
as the "Software"). The Software is and shall at all times be and
remain the sole and exclusive property of the Lessor and Lessee shall have no
right, title or interest therein or thereto except as to the use thereof
subject to the terms and conditions of this Lease.
- RENTALS. During and before the original term of the Lease, Lessee
hereby agrees to pay rent to Lessor in the amounts set forth above, without
deduction or setoff. All payments shall be made at the office of Lessor at
10880 Cassandra Way, Dallas, Texas 75228, or as otherwise directed by Lessor in
- SECURITY DEPOSIT. Lessor shall not require Lessee to pay a security
- LIMITED WARRANTY. Lessor makes no warranties (express, implied or
statutory) with respect to the Software and the accompanying written materials
including, but not limited to, any implied warranties of merchantability or
fitness for a particular purpose. In no event will Lessor be liable to Lessee
for any direct or indirect damages including loss of profits, lost savings,
loss of data, or other special incidental or consequential damages arising out
of Lessee's use of or inability to use the Software. In no event, will Lessor's
liability exceed the amount of the lease payments charged.
- TERM AND RENEWAL. The original and non-cancellable term of this
Lease shall commence on the effective date as set forth above and shall
terminate at the expiration of one (1) year. Lessee shall have the option to
renew the lease yearly, giving the lessor a thirty (30) day renewal notice
before the expiration date.
- SOFTWARE ACCEPTANCE. Lessee's execution of this Agreement
acknowledges that all Software set forth above was received and installed and
is in good and operable condition and that Lessor has fully and satisfactorily
performed all covenants and conditions to be performed by it under this Lease
- FINANCE LEASE. Lessor and Lessee agree that this Lease is a finance
lease as that term is defined in Article 2a of the Uniform Commercial Code and
Lessee hereby waives any and all rights and remedies granted to it by Sections
2a-506 through 2a-522 of the Uniform Commercial Code. Lessee further
acknowledges that this is a business and commercial lease and not intended for
household or personal use.
- PLACE OF USE. Lessee shall keep the Software at its place of
business as specified above. Lessee covenants and agrees not to allow the use
of the Software by other businesses, entities or individuals and that said
Software shall be used only on the work stations authorized by this Lease.
Lessee further covenants and agrees not to copy, rent, sublease, license,
transfer, donate, commercially exploit, reverse engineer, decompile,
disassemble (or allow the same to occur) the Software, or any part thereof.
- USE AND RETURN OF SOFTWARE. Lessee shall exercise due and proper
care in the use of the Software. Upon expiration or termination of this Lease,
Lessee, at its sole expense, shall forthwith pack and return the Software to
Lessor at 10880 Cassandra Way, Dallas Texas 75228 or such place as may be
designated by Lessor in the same condition as when received by the Lessee,
reasonable wear and tear alone excepted.
- TAXES. Lessee shall pay all taxes and assignments (including
interest, penalties, court costs and attorneys' fees, if any) which may be
levied directly or indirectly against the Software, or any interest therein, or
with respect to the ownership, possession or use thereof, whether such taxes
are levied against Lessor or Lessee. Such taxes to be paid by the Lessee shall
include without limitation property, sales, rent, lease and use taxes and any
other tax measured by the gross rent payable hereunder but shall not include
net income or franchise taxes payable by the Lessor. If such taxes are levied
against the Lessor, it shall notify Lessee of such fact and the Lessor shall
have the right, but not the obligation, to pay any such taxes whether levied
against the Lessor or the Lessee. In such event, the Lessee shall reimburse the
Lessor therefor within twenty (20) days from receipt of invoice and upon the
failure to make such reimbursement when due, the Lessor shall have all remedies
provided herein with respect to the nonpayment of rent hereunder.
- INDEMNITY. Lessee shall indemnify and hold Lessor harmless of and
from any and all claims, losses, liabilities (including negligence, tort and
strict liability), damages, judgments, suits or legal proceedings, including
court costs, expenses and reasonable attorneys' fees, related to the use of the
Software, provided however that Lessor shall indemnify and hold Lessee harmless
to the same degree expressed herein from any claim that Lessee's use of the
Software violates the intellectual property rights of another.
- TITLE. All of the Software shall remain personal property and the
title thereto shall remain with the Lessor at all times. Lessee shall keep the
Software free from any and all judgments, liens and encumbrances. Lessee shall
give Lessor immediate notice of the attachment or other judicial process, lien
or encumbrance affecting the Software and shall indemnify and save Lessor
harmless of and from any loss or damage caused thereby.
- CONFIDENTIALITY.During the course of this Agreement, either party
may have or may be provided access to the other's proprietary items or
confidential information ("Confidential Information"). Each party
agrees to maintain the confidentiality of the other's Confidential Information
in accordance with this provision and any separate nondisclosure agreement that
expressly references the disclosure(s) between Lessor and Lessee. At a minimum,
each party agrees that it shall not make the other's Confidential Information
available to any third party without the written consent of the other and that
title and ownership of the Confidential Information provided by one party to
the other shall remain the exclusive property of that party who has the right
to possess the Confidential Information.
- RIGHT OF INSPECTION. Lessor, its agents and representatives shall
have the right at any time during usual business hours to inspect the Software
and for that purpose to have access to the location of the Software.
- NON-WAIVER. Lessor's failure at any time to require strict
performance from Lessee of any of the provisions hereof shall not waive or
diminish Lessor's right thereafter to demand strict compliance therewith or
with any other provision. Waiver of any default shall not waive any other
default. Lessor's rights hereunder are cumulative and not alternative.
- POSSESSION OF SOFTWARE. Lessor covenants to and with Lessee that
Lessor is the lawful owner of said Software and that conditioned upon Lessee's
performance of the conditions herein, Lessee shall peacefully and quietly hold
and use the Software during the term of this Lease without hindrance.
- DEFAULT. If Lessee fails to pay any rent or other amount herein
provided within five (5) days after the same is due and payable; or if Lessee
fails to observe, keep or perform any other provision of this Lease required to
be observed, kept or performed by Lessee; or if a petition is filed by or
against Lessee under the Bankruptcy Act or any amendment thereto (including a
petition for reorganization or an arrangement); or if a receiver is appointed
for Lessee and its property; or if Lessee commits an act of bankruptcy, becomes
insolvent, makes an assignment for the benefit of creditors, or offers a
composition or extension of any of its indebtedness; or if Lessee, without
Lessor's prior consent, attempts to alter, modify, translate, decompile,
disassemble, copy, sell, trade, transfer, encumber, pledge, sublease or in any
way dispose of the Software, then Lessor or its agents shall have the right to
exercise any one or more of the following remedies:
a. Declare the entire
amount of the rent hereunder immediately due and payable without notice or
demand to Lessee.
b. To sue and recover from Lessee and amount equal to the unpaid balance of
any rent or other amounts due, or to become due, during the term of this Lease
as well as reasonable attorneys' fees and other expenses incurred by Lessor in
an attempt to enforce the provisions of this Lease.
c. To sue for and recover damages for the Lessee's default.
d. To demand and take possession of the Software without demand or notice
whereever the same may be located, with or without court order. Lessee herby
waives any and all damages occasioned by such retaking of possession of such
Software. Any said taking of possession shall not constitute a termination of
this Lease and shall not relieve Lessee of its original obligations under this
Lease unless Lessor expressly so notifies Lessee in writing.
Additionally, Lessor shall have upon default such other and further remedies
and rights as may be available at law by reason of the Lessee's default.
- ATTORNEYS' FEES. In the event either the Lessor or Lessee is
required to retain the services of any attorney to enforce their rights under
this Lease, and the same results in legal action being filed, then the
prevailing party shall be entitled to all reasonable and necessary attorneys'
fees, court costs and disbursements.
- ASSIGNMENTS. Neither Lessee nor Lessor shall assign any rights or
obligations herein with regard to this Lease without the written consent of the
- RISK OF LOSS. Lessee hereby assumes and shall bear the entire risk
of loss, theft, damage and destruction of the Software from any cause
whatsoever and no loss, theft, damage or destruction of the Software shall
relieve Lessee of any obligations under this Lease and this Lease shall remain
in full force and effect. Lessee shall promptly notify Lessor in writing of any
such loss, theft, damage or destruction of the Software.
- BINDING AGREEMENT. This Lease shall be binding upon the Lessee and
its heirs, legal representatives, successors and assigns and shall inure to the
benefit of the Lessor, its successors, legal representatives and assigns.
- GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE MADE AND EXECUTED IN
DALLAS COUNTY, TEXAS AND SHALL BE INTERPRETED AND ENFORCED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF TEXAS.
- SEVERABILITY. If any provision hereof or any remedy herein provided
for is invalid under any applicable law, such provision shall be inapplicable
and deemed omitted. However, the remaining portions herein, including remaining
default remedies, shall be given full force and effect in accordance with the
intent of this document.
- NO OTHER AGREEMENTS. This instrument and the related Escrow
Agreement dated on ______________________ contains the entire agreement between
the parties hereto with respect to the subject matter contained herein. There
are no other agreements, written or unwritten, that shall bind the parties.
|TimberWolf Systems, Inc./Lessor
EXHIBIT A - SOFTWARE PROGRAM
EXHIBIT B - BUG FIXES
Program Errors will be handled as follows: Upon lessor's receipt of an
error report and test case from the lessee's designated technical contact,
lessor will take corrective action so as to remedy the reported problems within
the following time schedule.
||Within 60 days|
The bug/errors are classified by Lessee and are as follows:
- X-FATAL: Errors preventing all useful work from being done.
- A-SEVERE IMPACT: Errors which disable major functions from being
- B-DEGRADED OPERATIONS: Errors disabling only certain non-essential
- C-MINIMAL IMPACT: All other errors.
The remedies for each error classification at each level specified above
- 1ST LEVEL: Acknowledgment of receipt of error report with written
confirmation delivered to Lessee during the next business day.
- 2ND LEVEL: Patch or work-around, temporary fix, or update of major
release. Including applicable document changes.
- FINAL LEVEL: Official fix, update, or major release, including
applicable document changes. For this purpose a day is defined as a 24-hour
period, regardless of whether work is scheduled during that period.