QAS® License
This License Agreement (hereinafter "Agreement") is entered into this day as
specified in the purchase order (hereinafter "Effective Date") by and
between FOUNDATIONS, Inc. (hereinafter “FOUNDATIONS” and/or
“Licensor”), with its principal place of business at 2 Executive Drive, Suite
1, Moorestown, New Jersey 08057, and Purchaser (hereinafter "Licensee").
WHEREAS, FOUNDATIONS has developed products and services;
WHEREAS, Licensee desires to license for internal use certain
FOUNDATIONS products/instruments under the terms of this
Agreement;
WHEREAS, FOUNDATIONS is willing to license such
products/instruments to Licensee for such use, upon the terms and subject
to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
promises herein and other good and valuable consideration, receipt of which
is hereby acknowledged, and intending to be legally bound, the parties have
agreed to the terms and conditions set forth below.
In consideration of the foregoing and the covenants contained in this
Agreement, the parties agree as follows:
TERM OF LICENSE
This License shall be effective from the date of purchase and shall remain in
force for twelve (12) calendar months following such effective date.
GRANT OF LICENSE
Grant of License. Subject to the limitations and obligations set forth in this
Agreement, including the obligations to pay the License Fees,
FOUNDATIONS hereby grants to Licensee a nonexclusive,
nontransferable license to use the FOUNDATIONS Products as described
herein. Specifically, the product is the FOUNDATIONS Quality Assurance
System®/QAS® (hereinafter referred to as “Instrument”) is for use of
Licensee in the program sites specified in the Purchase Order (hereinafter
referred to as “Authorized Locations”). This License allows the Instrument
herein described to be used by Licensee only in the specified Authorized
Locations (and the License granted shall not extend beyond those extend
beyond those Authorized Locations), within the Term designated, and in
accordance with the fee structure described herein; additional fees shall
apply.
Assignments and Sublicensing. Licensee shall not sell, assign, or transfer any
of its rights or obligations under this Agreement without the prior written
consent of FOUNDATIONS. In addition, Licensee will not sublicense any
products and/or portion(s) thereof.
Location. The License granted by this Agreement authorizes use of the
Instrument only at the Authorized Locations as understood and authorized
in writing by FOUNDATIONS by employees of Licensee (“Authorized
Users”).
Purpose. The License granted by this Agreement authorizes use of the
Instrument only for the intended purpose as understood by
FOUNDATIONS.
SCOPE OF LICENSE
Scope. The covenants contained in this Agreement shall apply to each
Instrument, as well as any/all updates and/or information/products
delivered to Licensee by FOUNDATIONS, including those updates and/or
information/products delivered in the course of providing Technical
Assistance requested by Licensee, that Licensee is licensing from
FOUNDATIONS or shall license in the future.
PAYMENTS FOR LICENSE
License. As consideration for the grant of the License, Licensee shall pay to
FOUNDATIONS, FOUNDATIONS’ then current rate applicable to the
Instrument for each program site designated/specified as an Authorized
Location prior to purchase. Licensee shall pay FOUNDATIONS for
additional Licenses, Instrument Upgrades, Instrument Extensions, Technical
Assistance, Assessments and Evaluations, and related products and services
at FOUNDATIONS’ then applicable rate.
Technical Assistance. Technical Assistance and/or training services for
Instrument use are not covered under this License and the rate for such
services shall be governed by a separate Agreement at Licensor’s then
applicable rate.
Additional Sites. Subject to the written permission by FOUNDATIONS,
Licensee may increase the number of program sites, in addition to the original
program site specified herein, in which to use the Instrument. Additional
program sites are those schools operated by Licensee. Additional program
sites shall be subject to the terms of this Agreement.
Additional Fees. In addition to the compensation/fees described herein,
Licensee shall pay all reasonable out-of-pocket expenses, including, but not
limited to, travel, postage, duplicating and the purchase of resource material,
reasonably incurred in connection with FOUNDATIONS’ provision of the
Instrument and the desired technical assistance. FOUNDATIONS will issue
invoices for said expenses. Licensee shall pay FOUNDATIONS within fifteen
(15) days of the date of the invoice.
Payment(s) Due. All payments must be made when due. All amounts not paid
when due are subject to a late fee of the lesser of 1.5% per month or the
maximum amount allowable by law, as well as an administrative processing
fee, not to exceed 1.0% of the outstanding balances, for each action related to
the collection of said outstanding balances.
Taxes/Duties. License Fee(s) do not include any (a) duties or (b) present or
future sales, use, value added, excise, or similar taxes applicable to the
Products and Services or associated expenses. Licensee is solely responsible
for all duties, fee, taxes, etc. Licensee will furnish FOUNDATIONS a
properly executed tax exemption certificate.
PROPRIETARY RIGHTS/NON-DISCLOSURE
Title, ownership rights, copyrights, intellectual property rights, etc. in the
products, including the Instrument, services, documents, forms, reports,
software and other items created by FOUNDATIONS, its employees and/or
agents, in the performance of the License under this Agreement are the
exclusive property of FOUNDATIONS. Title to such proprietary property
and all related ownership rights shall remain exclusively with
FOUNDATIONS. Licensee acknowledges such rights and ownership and will
not take any action to jeopardize, limit, or interfere in any manner with
FOUNDATIONS’ ownership of rights with respect to the products, services,
documents, forms, reports, software and other items.
Licensee further acknowledges that all information, proprietary or otherwise,
created by FOUNDATIONS, alone or in conjunction with Licensee, is
confidential and shall not be released, transferred and/or disclosed for any
reason, other than for the purpose as understood by FOUNDATIONS,
without the prior written permission of FOUNDATIONS.
SCOPE OF AGREEMENT AND ACCEPTANCE
Scope. This Agreement shall apply to each Instrument or Release of the
Instrument that Licensee is currently licensing from FOUNDATIONS or
shall license in the future.
Acceptance. The Instrument (and thereafter any corrections) shall be deemed
accepted by Licensee upon Licensee’s first use of the Instrument.
No Modification or Reverse Engineering. Licensee will not attempt to in any
way modify the Instrument.
REPRESENTATIONS AND WARRANTIES
Ownership; Sufficient Rights. FOUNDATIONS represents and warrants that
it owns or has sufficient right, title, and interest in and to the products,
specifically the Instrument, to grant the License granted by FOUNDATIONS
in this Agreement.
DISCLAIMER
ALL PRODUCTS, INCLUDING THE INSTRUMENT, ARE PROVIDED
WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, AS TO THEIR
LEGAL EFFECT AND COMPLETENESS. ITEMS SHOULD BE USED
AS A GUIDE AND ARE NOT DESIGNED TO MEET THE LAWS IN
LICENSEE’S STATE. LICENSEE ACKNOWLEDGES THAT
LICENSEE USES THIS INSTRUMENT AT ITS OWN RISK. FURTHER,
THE INSTRUMENT IS PROVIDED "AS IS" WITHOUT ANY EXPRESS
OR IMPLIED WARRANTY OF ANY KIND INCLUDING
WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR ANY
PARTICULAR PURPOSE. IN NO EVENT SHALL FOUNDATIONS, ITS
EMPLOYEES AND/OR AGENTS, BE LIABLE FOR ANY DAMAGES
WHATSOEVER (INCLUDING, AND NOT LIMITED TO, DAMAGES
FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF
INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO
USE THE MATERIALS, EVEN IF FOUNDATIONS HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOT A GUARANTEE
Licensee acknowledges that the services provided by FOUNDATIONS, which
shall be rendered in a competent, reasonable and professional manner, are not
guaranteed to effectuate an approval of Licensee’s applications and/or services
of any type. FOUNDATIONS disclaims all warranties with respect to the
technical assistance services, whether express or implied, including but not
limited to the warranty of merchantability or fitness for a particular use.
LICENSEE’S SOLE REMEDY
FOUNDATIONS’ entire liability and Licensee’s exclusive remedy shall be, at
FOUNDATIONS’ option, either (a)return of the price paid or (b)repair or
replacement of the Instrument upon its return to FOUNDATIONS; provided
FOUNDATIONS receives written notice from Licensee upon receipt of the
Instrument.
LICENSES/SERVICES FOR OTHERS
Licensee acknowledges that FOUNDATIONS shall not be restricted in any
manner from participating in other business activities, including and in
particular the provision of services to other educational entities.
CANCELLATION
Prior to Instrument/product introduction, Licensee shall have the right to
cancel this Agreement by giving FOUNDATIONS written notice, received by
FOUNDATIONS during such period, of such cancellation.
INDEPENDENT CONTRACTORS
It is understood and agreed that FOUNDATIONS, its officers, agents and
employees are not deemed to be employees of Licensee and shall act in an
independent capacity and not as officers, agents or employees of Licensee.
INDEMNIFICATION
Licensee shall indemnify, defend, and hold harmless FOUNDATIONS, its
officers, agents and employees, from any and all claims, demands, suits, and
actions, including, but not limited to, attorney’s fees, litigation expenses, and
court costs, connected therewith, brought against FOUNDATIONS, its
officers, agents, and employees, arising as a result of any direct or indirect,
willful or negligent action or omission of Licensee, its officers, agents and
employees.
Licensee agrees to release and discharge FOUNDATIONS, its officers, agents
and employees, from any and all liability in connection with, arising out of or
from, relating to or resulting from the acts and/or omissions of any third
parties including, but not limited to, any services provided in connection with
this Agreement.
INJUNCTIVE RELIEF
Licensee understands and agrees that FOUNDATIONS will suffer irreparable
harm in the event Licensee breaches any of Licensee’s obligations under this
Agreement and monetary damages will be inadequate to compensate
FOUNDATIONS for such breach. Accordingly, Licensee agrees that, in the
event of a breach or threatened breach by Licensee of any of the provisions of
this Agreement, FOUNDATIONS, in addition to and not in limitation of any
other rights, remedies or damages available to FOUNDATIONS at law or in
equity, shall be entitled to a permanent injunction in order to prevent or to
restrain any breach by Licensee, or by Licensee’s agents/representatives and
any/all persons directly and/or indirectly acting for or with Licensee.
ACCOUNTING FOR PROFITS
Licensee covenants and agrees that if Licensee shall violate any of Licensee’s
obligations, promises or agreements under this Agreement, FOUNDATIONS
shall be entitled to an accounting and repayment of all profits, compensations,
commissions, remunerations and/or benefits which Licensee directly and/or
indirectly realized and/or may realize as a result of, growing out of, or in
connection with any such violations. Additionally, Licensee shall be responsible
for future earnings/profits not realized by FOUNDATIONS due to breach by
Licensee. Such remedies shall be in addition to and not in limitation of any
injunctive relief or other rights or remedies to which FOUNDATIONS is or
may be entitled at law, in equity or under this Agreement.
REASONABLENESS
Licensee has carefully read and considered the provisions contained herein
and, having done so, agrees that the restrictions set forth herein are fair and
reasonable and are reasonably required for the protection of the interests of
FOUNDATIONS, Licensee, employees, agents, and other individuals and
entities associated with the parties.
GOVERNING LAW
This Agreement shall be governed by and construed in all respects in
accordance with the laws of the State of New Jersey.
SEVERABILITY
The provisions of this Agreement shall be deemed severable, and the
invalidity or unenforceability of any one or more of the provisions hereof
shall not affect the validity or enforceability of the other provisions hereof.
NO WAIVER
No term or provision hereof shall be deemed waived by FOUNDATIONS
and/or Licensee unless such waiver and/or consent shall be in writing
signed by both FOUNDATIONS and Licensee.
NOTICES
Any notice required to be given hereunder shall be sufficient if in writing,
and sent by certified or registered mail, return receipt requested, first class,
postage prepaid, in the case of Licensee to the address as specified in the
Purchase Order and in the case of FOUNDATIONS to its principal office
in the State of New Jersey at Moorestown West Corporate Center, 2
Executive Drive, Suite 1, Moorestown, New Jersey 08057, Attention:
Director of Evaluation.
HEADINGS
The headings and other captions in this Agreement are for convenience and
reference only and shall not be used in interpreting, construing or enforcing
any of the provisions of this Agreement.
GENDER
The use of gender herein contained shall be deemed to be or include the
other gender, wherever appropriate.
SURVIVAL
All obligations created by this Agreement shall survive change or
termination of the parties' business/other relationship(s).
The provisions of this Agreement shall apply to, bind and inure to the
benefit of FOUNDATIONS and Licensee, and their respective heirs,
successors, legal representative and assigns.
INTEGRATION
This Agreement supersedes any and all other agreements, whether written
or oral, regarding the FOUNDATIONS Quality Assurance System License
described herein, by and between Licensee and FOUNDATIONS and any
and all such prior agreements are hereby cancelled effective as of the date of
this Agreement. Licensee acknowledges that it has not relied upon any
promise(s) made by any member of FOUNDATIONS, and/or by any
individual connected with FOUNDATIONS.
AGREEMENT
Licensee, by virtue of purchasing and accepting delivery of the product,
agrees to all terms contained herein.