thinktank

As of this day, this Software License and Services Agreement (“Agreement”) is entered into by and between , Ramage Technologies (“Licensor”), a Nevada corporation, located at 2251 S. Fort Apache, #2064 Las Vegas Nevada and you (“Licensee”).

WHEREAS, Licensee desires to obtain certain software owned or distributed by Licensor entitled Univeristy ThinkTank and thinktank, in all versions and forms (“Software”);
WHEREAS, Licensee desires to obtain maintenance services for Software from Licensor;
WHEREAS, Licensee desires to obtain other services in connection with the software from Licensor; and
WHEREAS, Licensor desires to provide such software and services pursuant to the terms and conditions set forth in this Agreement.
Now, Therefore , in consideration of the mutual covenants contained herein, the parties hereto agree as follows:

Definitions (see definitions below)

Rights in Software

• License. Effective upon Acceptance of the Software, and provided that Licensee is and remains in compliance with the terms of the Agreement, Licensor grants to Licensee a non-exclusive, non-transferable license to use the Software executable code and accompanying documentation solely for its internal operations at the address above.  

• Rights. Licensee acknowledges that the Software and its structure, organization, and source code constitute valuable trade secrets of Licensor. Licensor retains and reserves exclusive ownership of all Intellectual Property Rights in the Software, including any derivative works or modifications.

• Limitations. Licensee agrees not to (i) copy, perform, distribute, modify, adapt, alter, translate, or create derivative works from the Software; (ii) merge the Software with other software; (iii) sublicense, lease, rent, or loan the Software to any third party; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software; or (v) otherwise use the Software except as expressly allowed in this Agreement.

• Export. Licensee shall comply with all applicable export and import control laws and regulations in its use of the Software, and, in particular, Licensee shall not export or re-export the Software without all required United States and foreign government licenses. Licensee understands that access and use of the Software from outside the United States may constitute export of technology and technical data that may implicate export regulations and/or require export license.

• Government . If Licensee is an employee, contractor or agent of the United States Government, the following provision applies. The Software and documentation are comprised of “commercial computer software” and “commercial computer software documentation” as such terms as used in 48 C.F.R. 12.212 (SEPT 1995) and are provided to the Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 (JUN 1995) and 227.7202-3 (JUN 1995). Unpublished rights reserved under the copyright laws of the United States.

Acceptance.

• Acceptance. Acceptance shall take place when (i) the Software substantially conforms to the description of the Software in its documentation, or (ii) when the Software is placed in productive use by Licensee, but in no event later than sixty (60) days after delivery (“Acceptance”).

Term and Termination .

• Term. This Agreement shall commence as of the Effective Date and shall continue in effect for a period of 30 days (“Term”).

• Termination for Material Breach. Either party may terminate this Agreement upon twelve (12) hour notice.

• Effects of Termination . In the event of termination of this Agreement by Licensor for Material Breach, any amounts owed to Licensor under this Agreement before such termination will be immediately due and payable, all licenses granted in this Agreement will immediately cease to exist, and Licensee shall promptly discontinue all use of the Software, erase all copies of the Software from Licensee’s computers, and return to Licensor all copies of the Software, documentation, and any Confidential Information in Licensee’s possession or control, and certify to Licensor in writing that it has fully complied with these requirements. Notwithstanding the foregoing and if not terminated by Licensor for Material Breach and assuming all Fees have been paid by Licensor, Licensee shall perpetually retain a license to use the Software, including applicable accompanying documentation, pursuant to the terms herein. If at any time, Licensee fails to abide by the terms and conditions contained herein, Licensor retains the right to terminate the license as per the terms of this Agreement.

Fees and Charges.

• License Fees. Licensee shall pay no fees to Licensor for the Software license.  

• Maintenance Fees. Licensee shall pay Licensor no maintenance fees.

• Professional Services Fees. Licensee shall pay Professional Service Fees to Licensor as set forth in Exhibit A.

Warranty .

• The parties understand that, considering the current state of the art, it is not possible to entirely exclude technical software problems, to manufacture faultless software or to cure every defect. Licensor does not warrant the absence of any defects or operation in combination with other programs.
• If, during the period of (5 ) days following delivery of the Software (the “Warranty Period”), the Software is not in substantial conformity with the Software description outlined in its documentation and the Work Order, written notice thereof shall be given to Licensor promptly during the Warranty Period .
• Licensor will try to correct the Error. Instead, and in substitution thereof, Licensor may, at its own option, supply a modified or improved Software version suited for the contractually contemplated purpose or make available a by-pass solution.
• Any warranty by Licensor shall not apply to any error which is caused by Licensee, its customers or third parties, and/or any breakdown and error due to improper use, improper installation, improper handling or maintenance (unless done by Licensor), improper operating means, modifications of the Software by Licensee, use with third party software not recommended by Licensor, or any tampering with the Software.
• This section “Warranty” shall constitute Licensee’s sole and exclusive remedy for breach of the above express warranties.
• EXCEPT AS PROVIDED IN THIS SECTION, ALL SOFTWARE AND SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY FUNCTIONALITY OR ITS BEING VIRUS FREE. LICENSEE RECOGNIZES THAT THE AS IS CLAUSE OF THIS AGREEMENT IS AN IMPORTANT PART OF THE BASIS OF THIS AGREEMENT, WITHOUT WHICH LICENSOR WOULD NOT HAVE AGREED TO ENTER THIS AGREEMENT. LICENSOR DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SOFTWARE AND SERVICES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT REGARDING SOFTWARE AND SERVICES SHALL BE DEEMED A WARRANTY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY WHATSOEVER. LICENSEE ACKNOWLEDGES THAT HE OR SHE HAS RELIED ON NO WARRANTIES OR STATEMENTS OTHER THAN AS MAY BE SET FORTH HEREIN.

Relationship . Licensor’s relationship with Licensee shall be that of an independent contractor and nothing in this Agreement should be construed to create a partnership, joint venture, agency or employer-employee relationship.

Confidentiality . Both parties shall use Confidential Information only for the purposes of this Agreement and shall not disclose Confidential Information to third parties.

Indemnification.

• Up to the amount of the liability limit set forth in Section 10), Licensor will defend, at its expense, any action brought against Licensee, to the extent that such action is based on a claim of direct infringement of any duly issued patent or any copyright resulting from the supply to Licensee by Licensor, or the use by Licensee, of any Software as delivered to Licensee ("Infringement"). Licensor shall pay all damages and costs finally awarded against Licensee which are attributable to such Infringement, provided that Licensor is promptly informed in writing and furnished a copy of each communication, notice or other action relating to the alleged Infringement and is given authority, information and assistance necessary to defend or settle such claim.
• Should any portion of the Software as delivered by Licensor hereunder become, or in Licensor's opinion be likely to become the subject of a claim of Infringement, then Licensor may, at its option and expense: (i) procure for Licensee the right to use the Software free of any liability for Infringement; or (ii) replace or modify the applicable portion of the Software with a non-Infringing substitute.
• Except as otherwise covered in sections a and b in this Indemnification section, Licensee shall defend, indemnify and hold harmless Licensor from any and all claims or causes of action arising out of Licensee's use of the Software, and pay any and all damages and expenses (including reasonable attorneys fees incurred by Licensor) in connection therewith, regardless of the circumstances of the claim or damage.
• The foregoing shall constitute Licensor’s sole and exclusive obligation and Licensee’s sole and exclusive remedy for any infringement by the Software of any Intellectual Property Rights.

LIMITATION OF LIABILITY . LICENSOR SHALL NOT BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, REVENUE OR SAVINGS, LOSS OF GOODWILL, OR THE LOSS OF USE OF ANY DATA, EVEN IF LICENSOR HAD BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF. UNDER NO CIRCUMSTANCES SHALL LICENSOR’S AGGREGATE CUMULATIVE LIABILITY HEREUNDER, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY LICENSEE UNDER THIS AGREEMENT. LICENSEE ACKNOWLEDGES THAT THE FEES PAID BY HIM OR HER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT LICENSOR WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.

Legal Compliance . Licensor may suspend or terminate use of Software and this Agreement immediately upon receipt of any notice which alleges that Licensee has used the Software for any purpose that violates any local, state, federal or law of other nations, including but not limited to the posting of information that may violate third party rights, that may defame a third party, that may be obscene or pornographic, that may harass or assault others, that may violate hacking or other criminal regulations, etc. of its agents, officers, directors, contractors or employees. In such event, Licensor may disclose the Licensee’s identity and contact information, if requested by a government or law enforcement body, or as a result of a subpoena or other legal action, and Licensor shall not be liable for damages or results thereof and Licensee agrees not to bring any action or claim against this Licensor for such disclosure.

Survival . All terms of this Agreement, which by their nature are intended to survive termination of this Agreement, including without limitation, sections entitled “Payment”, “Warranty”, “Limit of Liability”, “Miscellaneous”, shall so survive termination.

Force Majeure. Any party shall be excused from performing hereunder to the extent that it is prevented from performing as a result of any act or event which occurs and is beyond its reasonable control, including, without limitation, acts of God, war, weather, utility or telecommunications outages, unrest or riot, strikes any action of a governmental entity; etc. provided that the party experiencing the force majeure provides the other with prompt written notice thereof and uses reasonable efforts to remedy effects of such matter.

Miscellaneous . Either party may assign this Agreement to any successor in interest who purchases, or through change in control, owns greater than fifty percent of the assets or equity of such entity and agrees in writing to be bound by the terms and conditions herein; any other assignment shall be void. This Agreement and any dispute arising hereunder shall be construed in accordance with the laws of the State of (insert state law to apply) without regard to principles of conflict of laws. For the purpose of this Agreement, Licensee consents to the personal jurisdiction and venue of the state and federal courts located in (insert where disputes to be litigated) . If any provision of this Agreement is prohibited by law or held to be unenforceable, the remaining provisions hereof shall not be affected, and this Agreement shall continue in full force and effect as if such unenforceable provision had never constituted a part hereof, and the unenforceable provision shall be automatically amended to so as to best accomplish the objectives of such unenforceable provision within the limits of applicable law. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute the same instrument. Any waiver of a provision of this Agreement must be in writing and signed by the party to be charged. A valid waiver hereunder shall not be interpreted to be a waiver of that obligation in the future or any other obligation under this Agreement. This Agreement constitutes the entire agreement between the parties related to the subject matter hereof, supersedes any prior or contemporaneous agreement between the parties relating to the Software and shall not be changed except by written agreement signed by an officer of Licensor.

Definitions (see definitions below)

• "Acceptance" shall have the meaning described in Section 3)b)
• "Confidential Information" shall mean (i) the financial terms of this Agreement, (ii) the software, technology, ideas, formulae, know how, documentation, procedures, algorithms and trade secrets embodied in the Software, technical documentation, solution methodology, user manuals and other deliverables (including the developments and adaptations to the Software) and (iii) any information provided by either party to the other; except such information that (a) is known prior to its first receipt of such information, (b) is generally known to the public prior to its receipt, (c) after receipt, becomes available to the public other than as a result of a disclosure by either party, or (d) is required to be disclosed pursuant to an applicable law or by order of any court or governmental agency.
• "Enhancements" shall have the meaning described in Exhibit B.
• “Error” shall mean a reproducible failure of Software (as delivered by Licensor to Licensee) to perform substantially in accordance with the description of Software (as defined in the applicable Work Order) for such Software.
• “Error Correction” shall have the meaning described in Exhibit B.
• “Fees ” shall have the mean the group of fees outlined in Section 5).
• “Infringement” shall have the meaning described in Section 9)a).
• “Intellectual Property Rights” shall mean all copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contract rights, and other proprietary rights.
• “Maintenance and Support Services” shall mean the services described in Exhibit B.
• “Problem Report ” shall have the meaning described in Exhibit B.
• "Professional Services" shall mean consulting, technical and support services provided by Licensor in connection with the Software to be more particularly described in each applicable Work Order. Professional Services shall not include Maintenance and Support Services.
• "Software" shall mean the software systems, including any updates, customizations or enhancements, provided under this Agreement, described in each Work Order as delivered and as modified via the Professional Services and Maintenance and Support Services, accompanying documentation and all ideas, concepts, methods and techniques embodied therein.
• “Technical Coordinator” shall have the meaning described in Exhibit B.
• “Term” shall have the meaning described in Section 4)a)
• "Travel Expenses" shall mean food, lodging and incidental expenses incurred by Licensor in connection with the performance of Professional Services or Maintenance and Support Services.
• "Updates" shall have the meaning described in Exhibit B.
• “Warranty Period” shall have the meaning described in Section 6)b).
• “Work Order” shall mean a description of the Software licensed hereunder and/or the Professional Services to be performed by Licensor for Licensee, substantially in the form attached hereto as Exhibit A, which shall include, among other things, a description of such Software, a description of such Professional Services and/or special Maintenance Services, deliverables, contingencies, an estimated schedule for delivery and other applicable terms. Both Licensor and Licensee shall sign each Work Order. If any terms in a Work Order conflict with the terms of this Agreement, the terms of the Work Order shall supersede the terms of the Agreement solely for that project.

In Witness Whereof, the parties hereto have caused this Software License and Services Agreement to be executed as of the date on which the "Terms of Service" were accepted by te Licensee.

2007, Ramage Technologies LLC.