Licensing Agreement

PROPRIETARY INFORMATION/SOFTWARE LICENSE AGREEMENT

FOR SUBSCRIBERS OF A TRADERS ROAD, LLC

Subject to the provisions contained herein. A Traders Road, LLC (“A Traders Road, LLC”) hereby grants to its subscriber (“Subscriber”) a non-exclusive license to use the proprietary information/software products (“Licensed Program”) and materials (“Licensed Materials”) specified below.

 

SOFTWARE

 

A Traders Road, LLC will furnish one (1) copy of the Licensed Program to Subscriber in machine-readable object code form and provide one (1) copy of the Licensed Materials to Subscriber containing detailed specifications for the operation and use of the Licensed Program.

 

PRODUCT LICENSE AND SERVICE FEES

 

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Software License Fee  [***]

(See Schedule 1, Section A)

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Professional Services Fee [See Page Link]
ATR Model  http://atradersroad.com/atr-model/
ATR Newsletter  http://atradersroad.com/atr-newsletter/
Building Blocks  http://atradersroad.com/the-building-blocks/
THE HUB  http://atradersroad.com/the-hub/

(See Schedule 1, Section B

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Software Maintenance Fee [***]

(See Schedule 1. Section C)

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Total Fees Due & Payable     [***]

 

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1.  LICENSE. A Traders Road, LLC hereby grants to Subscriber a non-exclusive, non-transferable license (the “License”) to use the Proprietary Information Licensed, Program and Licensed Materials on the Designated Site, identified on Page 2 of this Agreement, subject to the terms and conditions contained herein. The term of this license is equivalent to the term of the Subscribers subscription to the services offered by A Traders Road, LLC, or otherwise as defined, commencing upon acceptance of this Agreement by A Traders Road, LLC.

 

This Agreement, the Proprietary Information, Licensed Program and Licensed Materials to which it applies, may not be assigned, sub licensed, or transferred by the Subscriber without prior written consent from A Traders Road, LLC which will not be unreasonably withheld nor delayed.

 

2. USE. A Traders Road, LLC shall be responsible for the delivery of the Proprietary Information, Licensed Program(s) together with the documentation. The Subscriber shall be

exclusively responsible for the supervision, management and control of its use of the Proprietary Information and Licensed Program(s), including without limitation; (i) assuring proper machine configurations, audit controls and operating methods: (ii) establishing adequate backup plans, based on alternative procedures and access to qualified programming personnel; and (iii) implementing sufficient recovery procedures and checkpoints to satisfy its requirements for security and accuracy of input, as well as, system restart and recovery in the event of a malfunction.

 

The Proprietary Information, Licensed Program and Licensed Materials may be used only in the furtherance of the internal operations of the Subscriber or it’s wholly owned or majority owned

subsidiaries. In no event shall the Licensed Program be used to process information by or for the benefit of third parties.

 

The Subscriber may, from time to time, change the Designated Site and/or the location thereof to any computer site of the Subscriber or a subsidiary, provided that in each case the Subscriber gives timely written notice thereof to A Traders Road, LLC. During the term of this Agreement, and at any given time, the Subscriber is authorized to use the Licensed Program on only one (1) of the Subscriber’s computers or on a cluster of computers; the Subscriber may license additional copies of the Licensed Program pursuant to the then current A Traders Road, LLC multiple installation pricing policy.

 

The Subscriber may not redistribute, copy or otherwise reproduce the Proprietary Information, Licensed Program, or any part thereof (except such copying, strictly limited in number, as is essential for system backup, testing, maintenance or recovery purposes). The Subscriber may

reproduce the Licensed Materials solely for its own internal use provided that all titles, trademarks, trade names, copyright notices, and other proprietary notices of A Traders Road, LLC are retained.

 

3. CONFIDENTIALITY. The ideas and the expressions hereof contained in any Proprietary Information, Licensed Program and Licensed Materials are confidential, proprietary information and trade secrets that the Subscriber will receive in confidence. The Subscriber shall not in any manner or form disclose, provide or otherwise make available, in whole or in part, any Proprietary Information, Licensed Program and/or Licensed Materials to any third parties except for Subscriber’s employees and consultants who are bound by appropriate non-disclosures. The obligations expressed within this Section 3 shall survive termination of this Agreement.

  

The Parties acknowledge and agree that all Parties’ information that is marked “Confidential”, except as specified below, that comes to be known by reason of work under this Agreement, is confidential to each Party and will not be disclosed to unauthorized third parties. The Parties will use the same standard of care, and will bind their employees, agents or representatives to such

standard, to prevent disclosure of such confidential information as each uses to protect its own confidential information and trade secrets. Information received by either Party under this Agreement will not be considered confidential if the information: (a) is not marked “Confidential”; (b) is known to the other Party or is in the other Party’s possession at the time of executing this Agreement; (c) is in the public domain at the time of disclosure; (d) is independently developed by the other Party; or (e) is disclosed to the other Party by a third party with written approval of the first Party.

 

The obligations expressed within this Section 3 shall survive termination of this Agreement.  Any breach of this provision or any other provision of this agreement which results in any unauthorized distribution of any sort shall be subject to the following liquidated damages in the amount of Two Hundred Fifty Thousand and 00/100 ($250,000.00) dollars (USD).

 

4. WARRANTIES. A Traders Road, LLC warrants that (i) it may lawfully grant the License, (ii) neither the Proprietary Information, Licensed Program or Licensed Materials, or the use thereof within the scope of the License, infringes a patent or copyright or is claimed to be a trade secret of any person who has not consented to the granting of the License, (iii) at the time of installation, and for so long thereafter as Subscriber pays Maintenance Fees hereunder, the Licensed Program, will conform to applicable printed documentation (i.e., all Licensed Materials, including User Guides and Reference Manuals) delivered by A Traders Road, LLC to the Subscriber; (iv) neither the Licensed Program nor the Licensed Materials contain any virus, time bomb mechanism or other software or code that can disable or adversely affect any and all of the Licensed Program or the Licensed Materials or destroy any data or other software; and (v) both the Licensed Program and the Licensed Materials are Year 2000 Compliant. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. No employee or agent of A Traders Road, LLC is authorized to give a greater or different warranty.

 

5. INDEMNIFICATION. A Traders Road, LLC, at its own expense, will defend and indemnify against any action brought against the Subscriber based on a claim that any Licensed Program infringed a United States patent, copyright or trademark provided that (i) A Traders Road, LLC shall be notified promptly in writing by the Subscriber of any notice of such claim; (ii) A Traders Road, LLC shall have the sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; and (iii) the Subscriber shall permit A Traders Road, LLC, at A Traders Road, LLC’s option and expense, either to procure for the Subscriber the right to continue using the Licensed Program or modify the Licensed Program so that it becomes non-infringing.

 

6. LIABILITY. Except as provided for in Section 5 above, A Traders Road, LLCs’ liability for damages to the Subscriber for any cause whatsoever, and regardless of the form of action, shall be limited to the License Fees paid by the Subscriber hereunder with respect to the affected Licensed Program. In no event will A Traders Road, LLC be liable for any losses sustained as a result of trading any securities, any other lost profits, goodwill, or other consequential, special or indirect damages suffered by the Subscriber in connection with or arising from the performance of the Proprietary Information, Licensed Program, even if A Traders Road, LLC has been advised of the possibility of such damages. or for any claim against the Subscriber by any other party.

 

7. MAINTENANCE PLAN. Upon due and punctual payment of the applicable Maintenance

Fees, the Subscriber shall receive:

New Releases: From time to time A Traders Road, LLC may issue modified or enhanced versions of the Licensed Program, herein referred to as a “New Release”, and will provide the Subscriber with one (1) complete copy of such New Release and one (1) copy of the documentation updates. Following shipment of the New Release materials, the previous release shall remain “current”. for purposes hereof, for a period of six (6) months: thereafter only the New Release will be current. New Releases will only be issued to Subscribers who have a current Maintenance Plan in effect. A Traders Road, LLC shall have no obligation hereunder to furnish the Subscriber with separately priced components to a Licensed Program or Licensed Materials except as explicitly described in this License Agreement, unless Subscriber has entered into an additional License Agreement for such separately priced components. A Traders Road, LLC shall continue to provide maintenance to the Licensed Program so long as it continues

to make the Licensed Program commercially available.

 

Service: Upon receipt of telephone or written notice(s) from the Subscriber specifying failures or errors found in a Licensed Program, and upon receipt of such additional information as A Traders Road, LLC may request, Work Management Solutions will act in an expeditious manner to correct defects in the current release of such Licensed Program, as long as it has not been

substantially altered by Subscriber. A Traders Road, LLC is not obligated to perform investigation and/or correction of defects found by A Traders Road, LLC to be (i) in other than a current release which has not been substantially altered by the Subscriber or (ii) caused by negligence or modification of the Licensed Program or use thereof in combination with software not provided by A Traders Road, LLC.

 

The Maintenance Plan shall be automatically renewed on an annual basis and the Subscriber shall pay therefore according to the then current Maintenance Fee, unless the Subscriber elects to cancel the annual renewal of the Maintenance Plan, effective upon any anniversary date of the commencement of the Maintenance Plan, by providing written notice to A Traders Road, LLC no less than thirty (30) days prior to such anniversary date. A Traders Road, LLC shall deliver to Subscriber an invoice no less than sixty (60) days prior to such anniversary date. Such invoice shall be due and payable within 30 days. Subscriber may elect at the execution of this Agreement, or upon any anniversary date hereof, to purchase a Multi-Year Maintenance Plan by paying in advance to A Traders Road, LLC maintenance fees for two or more years and receiving a maintenance prepayment discount.

 

Maintenance Fees payable under this Section shall be established by A Traders Road, LLC in its sole discretion. Notwithstanding the above, for the first three years after contract execution, the annual Maintenance Fees shall not be increased. For years thereafter, any Maintenance Fee increases shall be limited to the percent change in the U.S. Department of Labor Consumer Price

Index for the calendar year prior to the renewal date of the Maintenance Plan.

 

8. PAYMENT. All Product License and Services Fees outlined above are due and payable as described in Schedule 1, Section D (“Payment Terms”). All other fees and charges hereunder are due and payable in full upon receipt of A Traders Road, LLC invoice by Subscriber. There shall be added to all charges hereunder (i) all reasonable shipping, handling, travel and other reasonable out-of-packet expenses incurred by A Traders Road, LLC in connection with this Agreement or its performance; and (ii) amounts equal to any taxes paid or payable by A Traders Road, LLC, however designated, levied, or based on this Agreement, or on any Licensed Program or Licensed Materials, its charges or its use, including without limitation, any value-added, royalty, federal, state or local sales, use, and property taxes, and any taxes or amounts in lieu thereof, exclusive, however, of taxes based on the net income of A Traders Road, LLC. Subscriber will be charged interest at the rate of one and one-half percent (1-1/2%) per month on all sums hereunder, which remain unpaid thirty (30) days after due, with such interest to commence on the due date.

 

9. GENERAL. The Subscriber acknowledges that he has read this Agreement, understands it and agrees to be bound by all terms and conditions hereof. All subsequent modifications, amendments, and waivers to this Agreement must be by written instrument, executed by authorized representatives of the parties hereto. In the event that any provision under this Agreement shall be deemed illegal or otherwise unenforceable by any applicable statute or rule of law, such provision shall be omitted and the entire Agreement shall not fail on account thereof and the remainder of the Agreement shall continue in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any other breach of any other provision hereof. A Traders Road, LLC shall not be liable for delay or failure to perform its obligations herein set forth if such delay or failure is due to any cause or condition beyond its reasonable control. This Agreement shall be binding upon and inure to the benefit of any successor of the Subscriber, who, whether by merger, purchase, or otherwise, acquires all or substantially all of the assets or business of the Subscriber.

 

Both parties agree that neither party shall solicit or hire the other party’s employees involved directly in the relationship established by this Agreement as an employee or as a consultant in the same geographical region. This provision shall remain in effect until one (1) year has passed since the date the last services were provided by A Traders Road, LLC to Subscriber. Both parties recognize that their employees are valuable resources whose loss may be damaging to their respective businesses, and therefore, violation of this restriction shall result in the violating party making an immediate restitution payment of $250,000 to the other, payable within 30 days of the start date of the hired employee or consultant.

 

All notices and other communications hereunder shall be by written instrument and shall be deemed given upon certified mailing with return receipt, addressed to the party to be notified at the address set forth on Page 2 of this Agreement, or, if to A Traders Road, LLC, addressed to Scott Landers, Member, A Traders Road, LLC, 6325 Pinnacle Circle, Mt. Olive, Alabama 35117.

 

This Agreement is governed and construed by the laws of the State of Alabama.

 

This Agreement, including all Addenda, attached hereto, represents the complete and exclusive statement of the agreements between the parties and supersedes all prior agreements and representations between them. In the event of conflict between general Terms and Conditions, Schedule 1 and the Addenda, the following order of precedence shall apply: Schedule 1, Addenda.  Terms and Conditions. This Agreement is binding upon the parties upon execution by Subscriber and acceptance by A Traders Road, LLC.

 

Note that the Subscriber is fully responsible for providing the relational database management software and other third party software and systems required for the operation of the A Traders Road, LLC software.

 

B.    Professional Services:

 

ATR Model  http://atradersroad.com/atr-model/
ATR Newsletter  http://atradersroad.com/atr-newsletter/
Building Blocks  http://atradersroad.com/the-building-blocks/
THE HUB  http://atradersroad.com/the-hub/  

 

C.    Software Maintenance Fee:

 

Subscriber hereby purchases, as part of this Agreement, a Software

Maintenance Plan, commencing upon delivery of the Licensed Program to

Subscriber and extending for a term of one (1) year. Subscriber will pay a

software maintenance fee equal to [***] for this Software Maintenance

Plan.

 

D.    Payment Terms:

 

Fifty Percent (50%) of all Software License and Software Maintenance fees

[***] are due and payable upon contract execution; balance [***] due and

payable thirty (30) days after delivery of the Licensed Program and

Licensed Materials to Subscriber.

 

E.    License Fee Basis:

 

Subscriber acknowledges that the License Fees described herein are based on

the number of users of the Licensed Program as well as the service purchased.

The total number of licensed users is equal to the number of Active Subscriber

ID’s plus the number of unique User ID’s who do not have a Resource ID.

Each person who logs into the Licensed Program must have a unique User ID.

The sharing of User ID’s is not permitted under this Agreement. Subscriber

may be asked by A Traders Road, LLC to affirm, in writing, the number of

users on the anniversary date of this License or the Maintenance Plan.

The license fee described herein is based on a single user.

 

F.    A Traders Road, LLC Proprietary Information and Software Use & Restrictions:

 

Subscriber shall be limited to the use of the A Traders Road, LLC Software to the

modification and enhancement of the Licensed Program and Applications as

defined in this schedule. Subscriber shall not be permitted to develop other

applications without first obtaining a license for the A Traders Road, LLC

Software and paying all appropriate license and maintenance fees. The

Software shall be licensed by amendment to this Agreement if not

included in the original license parameter on Schedule 1, Section A above.

 

ADDENDUM 1

 

ACCEPTANCE PERIOD

 

For purposes of this section “License” or “Licensed Program” shall refer only to those Licenses or Licensed Programs for which refund is available.  The subscriber acknowledges that there are some Licenses and/or Licensed Programs for which refund is not available and further acknowledge that these rights enumerated below, in Addendum 1, do not apply to such Licenses and/or Licensed Programs for which refund in not available.  This License may be canceled at any time during the first forty-five (45) days following installation of the complete Licensed Program (such installation to occur within thirty (30) days of delivery of the Licensed Program), if the Licensed Program does not perform as described in the technical documentation provided as part of the Licensed Materials (i.e. User Guides and Reference Manuals), or as described in the various marketing materials which may have been provided to Subscriber. For the purposes of this Addendum, “installation of the complete Licensed Program” shall have occurred upon Subscriber’s execution of the Installation Verification form (to be provided to Subscriber upon Licensed Program delivery), and shall not include the installation of any customizations to be delivered to Subscriber.

In the event that the Licensed Program shall fail to meet the above cited conditions and Subscriber desires to terminate this License, Subscriber shall provide A Traders Road, LLC with written notice of its intent to cancel (“Cancellation Notice”), including explanation of each area of unsatisfactory performance by the Licensed Program. A Traders Road, LLC shall have forty-five (45) days after receipt of said notice in which to cure such unsatisfactory performance. Failure by A Traders Road, LLC to effect said cure within forty-five (45) days after receipt of a Cancellation Notice shall result in immediate cancellation of this License.

If Subscriber cancels this License under the provisions of this Addendum, Subscriber agrees to pay A Traders Road, LLC for any training and consulting services provided prior to cancellation, by A Traders Road, LLC, at a rate of one thousand six hundred dollars ($1,600.00) per person per day, plus reasonable and customary out-of-pocket expenses. These fees shall be the sole financial responsibility of Subscriber in the event of cancellation. In the event of cancellation, A Traders Road, LLC shall promptly refund all license and maintenance fees paid by Subscriber, pursuant to Terms and Conditions Section 8 of this Agreement, minus fees payable to A Traders Road, LLC for training and consulting services rendered, as described in this Addendum.

Acceptance (“Acceptance”) shall occur automatically at the close of business on the forty-fifth day after installation of the Licensed Program or on the seventy-fifth day after delivery of the Licensed Program, whichever comes first, in the absence of receipt by A Traders Road, LLC of any Cancellation Notice.