EXHIBIT 10.49
REMEDYTEMP, INC.
SOFTWARE LICENSE AGREEMENT
This License Agreement ("AGREEMENT") is entered into as of the _____ day
of _____________, 200 _____ (the "EFFECTIVE DATE") by and between RemedyTemp,
Inc., ("REMEDY") and __________________________ ("FRANCHISEE").
For good and valuable consideration, the receipt and sufficiency of which
is acknowledged, the parties hereto, intending to be legally bound, hereby agree
to the following terms and conditions:
1. Licensed Software. The term "SOFTWARE" shall mean, collectively, the
"I/SEARCH 2000 computer software programs" described in Exhibit A, and all
related user manuals and other documentation (the "DOCUMENTATION"). The term
"Software" includes any corrections, bug fixes, enhancements, updates or
modifications to such computer software programs. This Agreement shall apply to
each copy of the Software licensed by Franchisee at each office of the
Franchisee.
2. Grant of License.
2.1 License to Use Software. Subject to the terms and conditions of
this Agreement, Remedy hereby grants to Franchisee a non-exclusive,
non-transferable right and license to install and use the Software in executable
form only on Authorized Hardware solely for purposes of supporting Franchisee's
employees in connection with Franchisee's internal business activities of the
Franchised Business (as the term is defined in the Franchise Agreement) at
Franchisee's Franchise premises.
2.2 Right to Copy Software. Franchisee may copy the Software to the
extent necessary to fulfill the foregoing license and for back-up and archival
purposes. Franchisee shall reproduce Remedy's copyright notices and other
proprietary notices on all copies of the Software, and all copies shall be
subject to all terms, conditions, and obligations of this Agreement.
2.3 Right to Copy Documentation. Franchisee may copy the
Documentation to the extent necessary to fulfill the foregoing license.
Franchisee shall reproduce Remedy's copyright notices and other proprietary
notices on all copies of the Documentation, and all copies shall be subject to
all terms, conditions, and obligations of this Agreement.
2.4 Restrictions on Use. The foregoing rights to copy, install and
use the Software shall be subject to the following restrictions:
(i) Franchisee shall not allow copies of the Software to be
made, except as specifically allowed under this Agreement;
(ii) Franchisee shall not sell, lease, sublicense, distribute,
or otherwise transfer the Software to any person, firm or entity;
(iii) Franchisee shall not modify, alter, adapt, publicly
perform or publicly display the Software or Documentation in any manner;
(iv) Franchisee shall not use, or permit the Software to be
used in a computer service bureau, time-sharing or Application Service Provider
(ASP) arrangement; and
(v) Franchisee shall not decompile, disassemble, translate,
reverse engineer or otherwise derive the source code form of any portion of the
Software.
3. System Hardware. Franchisee shall maintain, at its cost and expense,
computer hardware and related equipment designated by Remedy, in its sole
discretion, as required for use of the Software (collectively, the "AUTHORIZED
HARDWARE"). Franchisee shall have the right to purchase the Authorized Hardware
through Remedy's Franchisee hardware purchase program. In the event Franchisee
elects to purchase the Authorized Hardware independently of the Franchisee
hardware purchase program, the hardware and equipment must nevertheless comply
with the specifications at Exhibit B. Remedy may, from time-to-time, modify,
change, add or delete specifications required for computer hardware and related
equipment. Any change in specifications provided by Remedy shall, which may
require the purchase of additional equipment or the upgrade of existing
equipment, be implemented within a reasonable time after notice of such change
by Remedy and at the sole cost and expense of Franchisee.
4. Technical Support.
4.1. Installation and Software Support. Remedy agrees to provide
reasonable technical assistance to Franchisee for installation and program
support of the Software, as reasonably may be required from time-to-time by
Franchisee, the cost of which shall be included in the Annual Fee paid by
Franchisee. In the event Remedy personnel are required to travel to Franchisee
location(s), Franchisee agrees that Franchisee shall pay Remedy all costs
incurred as a result of such on-location service. Payment of all such costs
incurred shall be due and payable net thirty (30) days upon receipt of invoice.
4.2 Skill Level. Remedy assumes that Franchisee and its employees
shall have the requisite skills to access and use the Software. If either
Franchisee or its employees do not have such requisite skill, Franchisee or its
employees shall obtain the skills needed, either through Remedy training or
elsewhere, at additional cost to Franchisee.
4.3 Support Services. In consideration of the Annual License Fees,
Remedy will provide support to Franchisee for the Software licensed to
Franchisee. Remedy will make the following support services available to
Franchisee:
(i) Telephone Support. Remedy personnel will be available to
Franchisee by phone or e-mail to answer questions regarding the use of the most
current version of the Software released by Remedy, and to help Franchisee
identify, verify and resolve problems with such Software ("TELEPHONE SUPPORT").
Telephone Support will be available Monday through Friday from 9:00 a.m. to 5:00
p.m., Pacific Time, Remedy holidays excluded.
(ii) Notice of Inoperability. In the event the Software is not
operable for any reason, Franchisee shall notify the designated representative
of Remedy within twenty-four (24) hours of such inoperability, or within one (l)
business work day, whichever shall first occur.
(iii) New Releases. Remedy will provide Franchisee with copies
of any standard new versions of the Software that are released by Remedy on a
general basis. All such new versions shall be subject to the terms and
conditions of this Agreement.
4.4 Support Coordinator. Franchisee will designate, in writing, no
more that two (2) persons who will be entitled to contact Remedy for Telephone
Support. These support coordinators may be changed from time to time upon
written notice from Franchisee to Remedy. Remedy is not obligated to directly
support Franchisee's internal users except for the designated support
coordinators.
5. Hardware and Equipment Service. Franchisee shall purchase a hardware
maintenance contract with Remedy's designated vendor (the "MAINTENANCE VENDOR")
or such other Maintenance Vendor as Remedy and Franchisee shall mutually agree
upon for hardware and equipment service during the term of this Agreement. The
cost of such maintenance contract shall be set by the Maintenance Vendor.
Franchisee shall look to the Maintenance Vendor or the applicable manufacturer
of any Authorized Hardware for use with the Software for any and all warranties
and service of such items. Remedy shall not be responsible for any warranties,
service or support of any Authorized Hardware or other equipment.
6. Term of Agreement. The term of this Agreement shall be for the term or
duration of the original Franchise Agreement, or any renewal thereof, entered
into and executed by and between Franchisee and Remedy Intelligent Staffing,
Inc. (the "FRANCHISE AGREEMENT"), subject to the provisions of Section 12 of
this Agreement.
7. Fees and Payment Terms.
7.1 Annual Fee. Franchisee shall pay Remedy an annual fee in equal
installments for each of Franchisee's offices that license the Software (the
"ANNUAL FEE"). The current Annual Fee is set forth in Exhibit C. The Annual Fee
shall cover all of Franchisee's costs relating to: (1) the licensing of the
Software; (2) the licensing of the Software at Remote I/SEARCH 2000 Internet
Access Workstations (as defined in Section 7.2 below); (3) Remedy's telephone
support for software users; (4) Remedy's updates for the Software that are made
generally available to franchisees; and (5) Remedy's technical support of the
Software. The Annual Fees and any other fees owed to Remedy by Franchisee shall
be due and payable as provided in Section 7.6 hereof.
7.2 Access Workstations. The term "Remote I/SEARCH 2000 Internet
Access Workstations" shall mean the use of the Software at the following remote
locations.
i) a single Remote I/SEARCH 2000 Internet Access Workstation at the
residential home of the majority owner of the Franchised Business or Manager of
the Franchised Business;
ii) a single Remote I/SEARCH 2000 Internet Access Workstation at any
number of recruiting locations; and
iii) any number of I/SEARCH 2000 Internet Access Workstations that
use the I/SEARCH 2000 Software for no more than 90 days to establish a temporary
office or a temporary onsite location.
Any use of a Remote I/SEARCH 2000 Internet Access Workstation aside
from those uses delineated above shall be subject to a separate Annual Fee per
such use and an additional one-time server access fee for each workstation using
the I/SEARCH 2000 Software. Such one-time workstation fee shall be at the
prevailing rate, which, as of the Effective Date, is set forth in Exhibit C.
7.3 Other Fees. In addition to the Annual License Fees, Franchisee
shall be responsible for all installation costs, shipping costs, handling costs
and all applicable taxes on the license. Furthermore, the Annual License Fees do
not include the costs of any third-party software or the internet connections
fees required to access the system. Internet connection fees will be billed
directly to Franchisee, based upon the master contract Remedy has with an
internet service provider.
7.4 Hardware Costs. Franchisee shall pay Remedy for any and all
hardware and equipment purchased from Remedy upon installation within thirty
(30) days upon receipt of an invoice from Remedy.
7.5 Price Changes. Remedy reserves the right to change its fees for
any item or service provided by Remedy to Franchisee under this Agreement. Such
Fees may be changed form time-to-time at Remedy's sole discretion. Accordingly,
the prices for any items ordered by Franchisee under this Agreement after the
Effective Date are subject to change; provided that all fees shall be charged at
Remedy's published rates for such items in effect at the time charged.
7.6 Payments. Remedy shall invoice Franchisee for all costs of
annual license fees, annual update fees, annual support fees, and all costs for
shipping, handling and applicable state/local/federal taxes. All amounts
invoiced to Franchisee, pursuant to this paragraph, shall be deducted by Remedy
from the Franchisee's Share pursuant to the Franchise Agreement. Except as
specifically provided otherwise, all other fees shall be due in full on or
before thirty (30) days from the receipt of an invoice therefor.
7.7 Hardware Costs. Remedy shall invoice Franchisee all costs for
hardware and equipment purchased by Franchisee from Remedy. Payment shall be due
and payable to Remedy within thirty (30) days of receipt of invoice.
7.8 Late Payments. If any amount payable to Remedy under this
Agreement or otherwise is not paid when due, Remedy shall be entitled to
additional payment as specified under the Franchise Agreement.
7.9 Taxes. Franchisee shall, in addition to the other amounts
payable under this Agreement, pay all sales, use, value added or other taxes,
federal, state, local or otherwise, however designated, which are levied or
imposed by reason of the transactions contemplated by this Agreement, except for
any taxes on Remedy's income.
7.10 Security Interest. Remedy reserves a security interest in all
hardware and equipment purchased hereunder and invoiced to Franchisee and in any
proceeds thereof to secure Franchisee's payment obligations to Remedy. Upon
Remedy's request, Franchisee agrees to promptly take such actions necessary, and
execute any documents required, to perfect and maintain such security interest.
8. Ownership.
8.1 Ownership and Use of Software. The Software licensed hereunder
is solely for Franchisee's use in connection with the Franchised Business (as
defined in the Franchise Agreement) at Franchisee's franchise premises.
Franchisee understands and agrees that the Software and Documentation shall at
all times remain the sole and exclusive property of Remedy. Franchisee shall at
no time possess or have any right of ownership or proprietary interest in or to
the Software, or any portion thereof, including any copies or modifications
thereto. Franchisee further acknowledges that Franchisee has no rights in the
Software except those expressly granted in this Agreement. Accordingly, no title
to or ownership interest in any part of the Software is transferred to
Franchisee. Title to all applicable rights in patents, patent rights,
copyrights, trademarks, service marks, trade names, confidential information and
proprietary rights in the Software are and shall remain in Remedy or its
assignee. Franchisee agrees to be bound by and observe the proprietary nature of
the Software program and further, shall not take any action to jeopardize,
limit, or interfere with such proprietary information concerning the Software to
any third party. Franchisee agrees to take appropriate action by instruction or
agreement with its employees who are permitted access to the Software to fulfill
its obligations hereunder. Franchisee will take all reasonable steps to protect
the Software and Documentation from any use, reproduction, publication,
disclosure or distribution that is not specifically authorized under this
Agreement.
8.2 Title to Hardware. Title to hardware and equipment purchased
from Remedy hereunder shall transfer to Franchisee after all applicable payments
therefor have been made. Risk of loss and damage for, hardware and equipment, if
any, purchased from Remedy hereunder shall pass to Franchisee upon shipment to
Franchisee, F.O.B. manufacturer's or Remedy's facilities, whichever location
such items are shipped from.
8.3 Rights of Third Parties. Franchisee acknowledges and agrees that
its acquisition and use of the hardware, the Software and other any other items
pursuant to this Agreement may be subject to the rights of Remedy's vendors
thereof in such items and to Remedy's obligations to such persons in connection
with Remedy's acquisition of such items.
Accordingly, Franchisee agrees to execute such further instruments and documents
required by such persons to evidence or secure such persons' rights in the items
acquired by Franchisee under this Agreement.
9. No Warranty. REMEDY EXPRESSLY DISCLAIMS AND MAKES NO REPRESENTATION OR
WARRANTY OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED (EITHER IN FACT OR
BY OPERATION OF LAW), WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION LICENSED
HEREUNDER OR ANY HARDWARE OR OTHER EQUIPMENT PURCHASED OR SERVICE PROVIDED
HEREUNDER. REMEDY EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. ANY OTHER REPRESENTATIONS OR WARRANTIES MADE
BY ANY PERSON, INCLUDING EMPLOYEES OR REPRESENTATIVES OF REMEDY, WHICH ARE
INCONSISTENT HEREWITH SHALL BE DISREGARDED BY FRANCHISEE AND SHALL NOT BE
BINDING UPON REMEDY, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATIONS OR
WARRANTIES OF (i) NON-INFRINGEMENT, WORKMANLIKE EFFORT, QUALITY, ACCURACY,
TIMELINESS, COMPLETENESS, TITLE, QUIET ENJOYMENT OR SYSTEM INTEGRATION; (ii)
THAT THE SOFTWARE OR ANY PART THEREOF CONFORMS TO ANY DEMONSTRATION OR PROMISE
BY REMEDY; (iii) ARISING THROUGH COURSE OF DEALING, COURSE OF PERFORMANCE OR
USAGE OF TRADE, OR (iv) THAT ACCESS TO OR USE OF THE SOFTWARE OR ANY PART
THEREOF WILL BE UNINTERRUPTED, ERROR FREE OR COMPLETELY SECURE. THERE ARE NO
WARRANTIES THAT EXTEND BEYOND THE FACE OF THIS AGREEMENT.
10. Limitation of Liability.
10.1. Liability Limitations. REMEDY SHALL NOT BE LIABLE FOR ANY
LIABILITIES, LOSSES, OR DAMAGES, INCLUDING, WITHOUT LIMITATION, SPECIAL,
INDIRECT, OR CONSEQUENTIAL DAMAGES OR LOSS OF USE, REVENUE, OR PROFITS, IN
CONNECTION WITH OR ARISING OUT OF ANY FAILURE OR DEFECT IN OR UNAVAILABILITY OR
USE OF THE SOFTWARE OR DOCUMENTATION, OR ANY PART THEREOF, OR THE HARDWARE AND
EQUIPMENT, IF ANY, PURCHASED HEREUNDER, OR ANY SERVICES PROVIDED HEREUNDER.
REMEDY SHALL NOT HAVE ANY LIABILITY WITH RESPECT TO ANY LOSS OR DAMAGE RELATED
TO ANY (i) FAILURE OF THE SOFTWARE; OR (ii) ANY USE OF THE SOFTWARE OR THE
RESULTS OR DECISIONS MADE OR OBTAINED BY USERS OF ANY OF THE SOFTWARE OR
DOCUMENTATION. IN NO EVENT SHALL REMEDY'S AGGREGATE TOTAL LIABILITY UNDER THIS
AGREEMENT EXCEED THE LESSER OF FRANCHISEE'S ACTUAL DIRECT DAMAGES OR THE AMOUNT
FRANCHISEE ACTUALLY PAID REMEDY DURING THE SIX MONTH PERIOD IMMEDIATELY
PRECEDING THE DAMAGE-CAUSING EVENT. THE LIMITATIONS CONTAINED IN THIS SECTION
SHALL APPLY EVEN IF ANY LIMITED REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
10.2 Applicability. The limitations in this Section 10.1 shall be
deemed to apply to all causes of action and all legal theories, without regard
to whether the damages arise from (i) breach of contract, (ii) breach of
warranty, (iii) negligence or other torts, or (iv) any other cause of action,
however stated.
11. Nondisclosure. During and after the term of this Agreement, Franchisee
shall keep confidential and shall require its officers, directors and employees
to keep the Software and Documentation confidential. Franchisee shall not
disclose the Software or Documentation or any other confidential or proprietary
materials of Remedy or its licensors that may be disclosed or provided to
Franchisee (whether any such materials are disclosed in tangible or intangible
form, and whether or not stored, compiled or memorialized, physically,
graphically, photographically or in writing) (collectively, "CONFIDENTIAL
INFORMATION"). Franchisee shall use the same degree of diligence and effort to
protect the Software and other Confidential Information from disclosure to third
parties as Franchisee uses to protect its own confidential information, but in
no event shall Franchisee use less than reasonable diligence and effort in
protecting the Software and other Confidential Information from disclosure.
Franchisee shall notify each employee having access to the Software or
Confidential Information of the nondisclosure obligations under this Agreement
and require compliance from each such employee.
12. License and Agreement Termination. In addition, Remedy shall have the
right to terminate Franchisee's license hereunder and this Agreement if
Franchisee fails to comply with the terms and conditions of this Agreement or
any Franchise Agreement. To exercise such termination rights, Remedy shall give
written notice to Franchisee of such failure and if such failure has not been
remedied within three (3) days after such notice, the Franchisee's license and
this Agreement shall terminate upon written notice from Remedy. Remedy shall
also have the right to immediately terminate Franchisee's license and this
Agreement upon written notice to Franchisee, if Franchisee breaches any of the
provisions of Section 8 or 11 hereof. In the event the Franchise Agreement by
and between Remedy and Franchisee is terminated, or the Franchise is closed or
sold by Franchisee, unless Franchisee's rights and obligations hereunder are
assigned pursuant to the provisions of Section 19 hereof, this Agreement shall
automatically terminate.
13. Consequences of Termination. Upon termination, Franchisee shall return
all copies of the Software along with all related reference and other
descriptive Documentation related thereto to Remedy. Upon Remedy's request,
Franchisee shall be solely responsible for the removal of the Software on
hardware and equipment and shall certify such removal. In the event Franchisee
ceases to do business, Remedy, in its sole discretion reserves the right to take
possession of the hardware and related equipment in order to remove all Software
and any then existing data contained in the Software. If termination occurs
prior to the end of a license term for the Software and Franchisee has paid in
advance for the license hereunder, Remedy shall refund to Franchisee a pro rata
amount of the license fee with respect to the remaining license term. In the
event of termination, all provisions of Sections 8, 9, 10, and 11 shall survive
termination of this Agreement. Furthermore, Franchisee's obligation to pay all
accrued fees shall survive the termination of the Agreement by either party for
any reason.
14. Insurance. Franchisee shall, during the term of this Agreement, be
responsible for maintaining all-risk insurance, including replacement cost in
any insurable amount as determined by Franchisee for any loss or damage to
system hardware using the Software or destruction or loss of data for use with
the Software maintained on Franchisee's system. It shall be in the sole
discretion of Franchisee to maintain business interruption insurance insuring
against interruption of business as a result of any system failure, damage or
destruction. Remedy shall not have any responsibility for maintaining any
insurance to protect Franchisee against any and all loss or damage to system
hardware, software or data contained in the system using the Software.
15. Modification and Discontinuance. All updates to Software and all
modules or options of Software are subject to change, revision, modification or
discontinuance with thirty (30) days' advance notice to Franchisees.
16. Waivers. The waiver or failure of either party to exercise in any
respect any right provided for herein shall not be deemed a waiver of any
further right thereunder. Termination of a license granted herein or of this
Agreement by either party shall not act as a waiver of any breaches of the terms
and conditions of this Agreement and shall not act as a release of either party
from any liability for breach of such party's obligations hereunder.
17. Equitable Remedies. The obligation of Franchisee under Sections 8, 11,
l2, and 13 hereof are of a special and unique character which gives them a
peculiar value to Remedy for which Remedy cannot be reasonably or adequately
compensated in damages in the event Franchisee breaches such obligations.
Therefore Remedy shall, in addition to other remedies which may be available, be
entitled to injunctive or other equitable relief in the event of the breach or
threatened breach of such obligation.
18. Representatives and Notices. All notices required to be given
hereunder shall be in writing to the parties' representatives at the addresses
set forth below. Notice shall be considered delivered and effective three (3)
working days after mailing when sent by registered or certified mail, return
receipt requested. Notice shall be deemed given on the date of service if
personally served or sent by a reputable overnight messenger service or on the
date of telecopying, if telecopied, provided that a copy of the telecopy is also
sent by United States mail. Either party, upon written notice to the other, may
change any name or address to which future notices shall be sent. Any notices
under this Agreement shall be sent to the following representatives:
If to Remedy:
Attention: Vice President, Information Technology
RemedyTemp, Inc.
101 Enterprise
Aliso Viejo, CA 92656
Telephone: ______________________________
Fax: ______________________________
If to Franchisee:
Attention: ______________________________
______________________________
______________________________
Telephone: ______________________________
Fax: ______________________________
19. Assignment. Upon the assignment by Franchisee to any person or entity
(the "Assignee") of Franchisee's rights and obligations under the Franchise
Agreement in accordance with the provisions thereof, Franchisee shall
concurrently therewith assign all of its rights and obligations under this
Agreement to the Assignee, who shall, from and after such assignment of this
Agreement, assume and perform for the express benefit of Remedy the obligations
and liabilities of Franchisee hereunder. Except as set forth in the preceding
sentence, any assignment or transfer by Franchisee of this Agreement or of
Franchisee's rights or obligations hereunder without the prior written consent
of Remedy shall be void and shall constitute an event of default hereunder. All
rights and obligations under this Agreement shall accrue to the benefit of any
successors and permitted assigns.
20. Further Assurances. Franchisee agrees to take such further actions and
to execute and deliver such further documents as may be required to evidence,
confirm or consummate the agreements set forth in this Agreement.
21. Authority. The parties by their respective signatures below
acknowledge and affirm that each is an authorized and designated representative
to execute this Agreement on behalf of their respective company.
22. Governing Law and Venue. This Agreement shall be governed by and
construed under the laws of the state in which Remedy maintains its principal
place of business, without regard to such state's rules governing conflicts of
law. Should any dispute arise under this Agreement, the parties agree that the
exclusive venue for resolution of the dispute shall be in the courts in and for
the jurisdiction in which Remedy maintains its principal place of business.
Should any legal action be instituted to enforce the terms and conditions of
this Agreement, the prevailing party shall be entitled to recover reasonable
attorneys fees and expenses incurred in both the trial and appellate levels.
23. Non-Waiver. Any failure by either party to detect, protect, or remedy
any breach of this Agreement shall not constitute a waiver or impairment of any
such term or condition, or the right of such party at any time to avail itself
of such remedies as it may have for any breach or breaches of such term or
condition.
24. Severability. If any provision hereof is declared invalid by a court
of competent jurisdiction, such provision shall be ineffective only to the
extent of such validity so that the remainder of that provision and all
remaining provisions of this Agreement will continue in full force and effect.
25. Amendments. No provision in any purchase order will supersede the
terms and conditions of this Agreement. No supplement, modification, or
amendment of this Agreement shall be binding, unless executed in writing by a
duly authorized representative of each party to this Agreement.
26. Entire Agreement. This Agreement (including the Exhibits hereto) and
the Franchise Agreement (including the Exhibits thereto) sets forth the entire
agreement and supersedes any and all prior communications and agreements, oral
or written, of the parties with respect to the subject matter of this Agreement.
No representations or statements of any kind made by either party that are not
expressly stated herein shall be binding on such party. All confidentiality
obligations, restrictions and prohibitions on use, Remedy ownership provisions,
limitations of liability, disclaimers of warranty and Sections 13-26 shall
survive any termination or expiration of this Agreement.
This Agreement is executed as of the ________ day of _____________, 200__.
Accepted and Agreed:
RemedyTemp, Inc. Remedy Franchisee
By: ___________________________________ By: ________________________________
Name: _________________________________ Name: ______________________________
Title: ________________________________ Title: _____________________________
EXHIBIT A
DESCRIPTION OF SOFTWARE
EXHIBIT B
DESCRIPTION OF AUTHORIZED HARDWARE
EXHIBIT C
PRICE LIST
Annual Fee
Workstation Fee