End User License Agreemen... | Clause Standard | Clause Assembly | Guidance | Checklist |
Overview

An End User License Agreement (EULA) is a form of software license that comes with most commercial software applications. EULAs are commonly referred to as Shrink Wrap or Click-Through licenses, where the potential licensees are presented with the terms and conditions when installing the software, and must accept to continue or complete the installation.

Software is copyrightable under 17 U.S.C. § 107(a)(1), https://www.law.cornell.edu/uscode/text/17/102. Thus, like any form of software license the basis of a EULA is the grant of copyright license to the licensee. Because of the commercial nature of most software licensed under a EULA, expect the license to be non-exclusive and without sublicensing rights. The terms of a EULA are often similar to a Software License, with key differentiators being that EULAs have minimal support and maintenance guarantees, and will not provide any form of training in the use of the software.

When drafting a EULA, pay particular attention to the distinction between a sale and a license, to make sure the licensor’s copyright is not extinguished by the first sale doctrine. In short, the first sale doctrine means that once a copyrighted material—for instance a software CD—has been sold, the copyright owner’s exclusive rights extinguish with regards to that particular CD, so that the new owner may reproduce and distribute it freely. As the name suggests, first sale comes into play with the sale of a copyrighted good, but not with a license. Therefore, to avoid extinguishing one’s rights the licensor should take care the good is being licensed rather than sold. This is not as simple as calling the transaction a license rather than a sale, instead, courts look to see whether the transaction included use and transfer restrictions for the licensee. If so, it is more likely to be a license. If not, courts may call the transfer a sale. Compare Vernor v. Autodesk and UMG v. Augusto, and see the License Grant clause for more information.  

Guidance
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End User License Agreement

This End User License Agreement is a contract between [PARTY A NAME] ("[PARTY A ABBREVIATION]") and you ("[PARTY B ABBREVIATION] regarding the use of [PARTY A]'s [SOFTWARE NAME], further described at [URL] (the "Licensed Software").

By clicking, "I accept" or by installing, copying, or using the Licensed Software, [PARTY B] agrees to be bound by the terms of this agreement.

License

License Grant. [PARTY A] hereby grants to [PARTY B] a non-exclusive, revocable, non-sublicensable license to use the Licensed Software.

No Other Rights. [PARTY A] reserves for itself all other rights and interest not explicitly granted under this agreement.

Trial, Evaluation, and Beta. If this Agreement is for a trial, evaluation, or beta license, the licenses granted herein will terminate upon the expiration or cancellation of the trial, beta, or evaluation period or when the Services are no longer available. [PARTY B] may use the Services only for the duration of the trial or evaluation period. All such licenses are limited to one per customer per promotion or beta test. 

Permitted Uses

Installation. You may install and use the number of copies of the Software that you purchased or for which you were granted a license.

Evaluation Use. If you ordered an evaluation license, you may use the Software only for evaluation purposes and only during the applicable evaluation period. Any other use of the Software or beyond the applicable evaluation period is strictly prohibited.

Server Deployment. You may install [NUMBER OF SERVER COPIES] of copies of the Software on an internal file server for purposes of downloading and installing the Software on licensed computers within the same internal network.

Home Use. You may install a copy of the Software on a personal or home computer, provided both copies of the Software are not used at the same time.

Backup and Archival Copies. You may make one copy of the Software solely for backup or archival purposes.

Permitted Uses. [PARTY B] may install and use the Licensed Software solely for [PARTY B]'s [personal, non-commercial][internal business] use.

Restricted Uses

No Distribution, etc. [PARTY B] may not distribute, license, loan, or sell the Software or other content that is contained or displayed in it.

No Third Party Access[PARTY B] may not sell, license, or grant any access to or use of the Software to any third party.

No Time-Sharing[PARTY B] may not use or access the Software for any commercial time-sharing, rental, or service bureau purposes.

No Modification[PARTY B] may not modify, alter, or create any derivative works of the Software.

No Reverse Engineering[PARTY B] may not reverse engineer, decompile, decode, decrypt, disassemble, or derive any source code from the Software.

No Copies[PARTY B] may not make or permit the making of copies of

the Software other than as necessary for installation, back-up, archival, or disaster recovery purposes, or

the Documentation, other than a reasonable number of copies for training purposes.

No Derivative Works[PARTY B] may not create or permit the creation of derivative works from the Software.

Proprietary Notices[PARTY B] may not remove, alter, or obscure any copyright, trademark, or other proprietary rights notice on or in the Software.

No Copyright Violations[PARTY B] may not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.

Dangerous Use. The Software is not in intended for use in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control systems, life support machines, or other equipment in which failure of the Software could lead to death, personal injury, or severe physical or environmental damage.

Restricted Uses. [PARTY B] may not

distribute, license, loan, or sell the Licensed Software or other content contained or displayed in it,

modify, alter, or create any derivative works of the Licensed Software,

reverse engineer, decompile, decode, decrypt, disassemble, or derive any source code from the Licensed Software, or

remove, alter, or obscure any copyright, trademark, or other proprietary rights notice on or in the Licensed Software.

Restricted Uses. [PARTY B] will not

distribute, license, loan, or sell the Software or other content that is contained or displayed in it,

modify, alter, or create any derivative works from the Software,

reverse engineer, decompile, decode, decrypt, disassemble, or derive any source code from the Software,

remove, alter, or obscure any copyright, trademark, or other proprietary rights notice on or in the Software.

Support and Maintenance. [PARTY A] will not have any obligation to provide [PARTY B] with any support, maintenance, or other services.

Support and Maintenance

Remote Support. [PARTY A] shall provide telephone and online support to [PARTY B] between 8:00 a.m. and 5:00 p.m. ([TIME ZONE]), Monday through Friday, except on national holidays.

Support Limited to [PARTY A][PARTY A] will not to required to answer support questions from persons other than [PARTY B].

Updates. [PARTY A] will have the discretion to provide [PARTY B] with updates to the Licensed Software, and the installation and use of updates will be governed by this agreement.

Updates

Right to Updates. Subject to paragraph [RIGHT TO CHARGE FOR UPDATES], [PARTY B] may choose to use any updates or upgrades (collectively, "Updates") [PARTY A] provides to the Licensed Software, but only if they have a license to use the previous version of the Licensed Software.

License to Updates. Unless [PARTY A] provides other terms in writing, [PARTY B]'s installation and use of any update will be subject to this agreement.

Right to Charge for Updates. If [PARTY B] chooses to use an Update, [PARTY A] may charge [PARTY B] for the use and installation of that Update.

Use of Previous Versions[PARTY B] may continue to use the previous versions of the Licensed Software subject to the terms of this agreement, provided that the Update and the previous version are installed on the same computers.

No Transfer of Previous Versions[PARTY B] may not transfer the previous version to a third party.

No Support Obligations for Previous Versions[PARTY A] will have no obligations to support previous versions of the Licensed Software.

Activation. The Software may require you to take certain steps to activate your Software or validate your subscription. Failure to activate or register the Software, validate the subscription, or a determination by us of fraudulent or unauthorized use of the Software may result in reduced functionality, inoperability of the Software, or a termination or suspension of the subscription. 

License Fees. [PARTY B] shall pay [PARTY A] the license fee [of $[LICENSE FEE] / listed in [ATTACHMENT]] (the "License Fee").

Royalties. In exchange for the [DELIVERABLE][PARTY B] shall pay [PARTY A] the Royalties Fees, and down payment, according to section [PAYMENT OF ROYALTIES].

Fees. [PARTY B] shall pay [PARTY A] a monthly subscription fee of $[SUBSCRIPTION FEE AMOUNT] (the "Subscription Fee") for the [DELIVERABLE] provided under this agreement.

Payment of Royalties Fees

Down Payment. On the Effective Date, [PARTY B] shall pay [PARTY A] a down payment of $[DOWN PAYMENT AMOUNT].

Fixed Royalty Rate[PARTY B] shall pay to [PARTY A] the "Royalties Fees"

equal to [ROYALTY PERCENTAGE]% of [PARTY B]'s total sales of the [Licensed Goods / Licensed Software / Licensed Method / Assigned Patents] over each [PAYMENT PERIOD] period (each period, an "Accounting Period"),

due within [14] Business Days' of the end of the applicable Accounting Period,

in immediately available funds, and

to the account [PARTY A] lists immediately below:

Account Number:

Routing Number:

Minimum Royalty Fee. Each Accounting Period, [PARTY B] shall pay [PARTY A] a minimum royalty fee equal to $[MINIMUM ROYALTY FEE AMOUNT], which will be credited against any Royalty Fees due that Accounting Period under paragraph [FIXED ROYALTY RATE].

Accounting. [PARTY B] shall send with each payment to [PARTY A] a certified accounting for the applicable Accounting Period, correctly listing the sales of the [Licensed Goods / Licensed Software / Licensed Method / Assigned Patents] over that Accounting Period.

License Fee[PARTY B] shall pay the License Fee to [PARTY A]

in an initial downpayment due on [the Effective Date / [DATE, MONTH]], and

installments of $[INSTALLMENT AMOUNTS], due every [PAYMENT PERIOD],

with each payment made

in immediately available funds, and

to the account [PARTY A] lists immediately below:

Account Number:

Routing Number:

License Fees

License Fee Paid in Full[PARTY B] shall pay the License Fee to [PARTY A]

in full,

due on [DATE, MONTH],

in immediately available funds, and

to the account [PARTY A] lists immediately below:

Account Number:

Routing Number:

Royalties Fees

Down Payment. On the Effective Date, [PARTY B] shall pay [PARTY A] a down payment of $[DOWN PAYMENT AMOUNT].

Fixed Royalty Rate. [PARTY B] shall pay to [PARTY A] the Royalty Fees

equal to [ROYALTY PERCENTAGE]% of [PARTY B]'s total sales of the [Licensed Goods / Licensed Software / Licensed Method] over each [PAYMENT PERIOD] period (each period, an "Accounting Period"),

due within [14] Business Days' of the end of the applicable Accounting Period,

in immediately available funds, and

to the account [PARTY A] lists immediately below:

Account Number:

Routing Number:

Minimum Royalty Fee. Each Accounting Period, [PARTY B] shall pay [PARTY A] a minimum royalty fee equal to $[MINIMUM ROYALTY FEE AMOUNT], which will be credited against any Royalty Fees due that Accounting Period under paragraph [FIXED ROYALTY RATE].

Milestone Payments. [PARTY B] shall pay [PARTY A] the milestone payments on the following milestones in connection with selling the [Licensed Goods / Licensed Software / Licensed Method]:

$[FIRST MILESTONE COMPENSATION AMOUNT], due on [SHORT DESCRIPTION OF FIRST MILESTONE]

$[SECOND MILESTONE COMPENSATION AMOUNT], due on [SHORT DESCRIPTION OF SECOND MILESTONE] 

$[THIRD MILESTONE COMPENSATION AMOUNT], due on [SHORT DESCRIPTION OF THIRD MILESTONE]

$[FOURTH MILESTONE COMPENSATION AMOUNT], due on [SHORT DESCRIPTION OF FOURTH MILESTONE] 

$[FIFTH MILESTONE COMPENSATION AMOUNT], due on [SHORT DESCRIPTION OF FIFTH MILESTONE] 

Accounting. [PARTY B] shall send with each payment to [PARTY A] a certified accounting for the applicable Accounting Period, correctly listing the sales of the [Licensed Goods / Licensed Software / Licensed Method] over that Accounting Period.

Royalties Fees

Sliding Scale Royalty Rate[PARTY B] shall pay to [PARTY A] the Royalties Fee

equal to the appropriate percentage according to paragraph [ROYALTIES TABLE] below, of [PARTY B]'s total sales of the [Licensed Goods / Licensed Software / Licensed Method] over each [PAYMENT PERIOD] period (each period, an "Accounting Period"),

due within [14] Business Days' of the end of the applicable Accounting Period,

in immediately available funds, and

to the account [PARTY A] lists immediately below:

Account Number:

Routing Number:

Minimum Royalty Fee. Each Accounting Period, [PARTY B] shall pay [PARTY A] a minimum royalty fee equal to $[MINIMUM ROYALTY FEE AMOUNT], which will be credited against any Royalty Fees due that Accounting Period under paragraph [SLIDING SCALE ROYALTY RATE].

Accounting. [PARTY B] shall send with each payment to [PARTY A] an accounting for the applicable Accounting Period,

correctly listing the sales of the [Licensed Goods / Licensed Software / Licensed Method] over that Accounting Period, and 

certified by [PARTY B].

Royalties Table

[FIRST BRACKET ROYALTIES PERCENTAGE]% for the first $[X] to $[X] sales

[SECOND BRACKET ROYALTIES PERCENTAGE]% for the next $[X] to [X] sales

[THIRD BRACKET ROYALTIES PERCENTAGE]% for the next $[X] to [X] sales

[FOURTH BRACKET ROYALTIES PERCENTAGE]% for the next $[X] to [X] sales

[FIFTH BRACKET ROYALTIES PERCENTAGE]% for the next $[X] to [X] sales

[INCLUDE ADDITIONAL BRACKETS OF ROYALTIES AND SALES IF NECESSARY]

Taxes. Payment amounts under this agreement do not include taxes, and [PARTY A] shall pay all Taxes applicable to payments between the parties under this agreement.

TaxesPayment amounts under this agreement do not include Taxes, and [PARTY B] shall pay all Taxes applicable to payments between the parties under this agreement. 

Taxes. Each party shall pay the Taxes arising from the party's performance of its obligations and from compensation paid to the party. 

Interest on Late Payments. Any amount not paid when due will bear interest from the due date until paid at a rate equal to [1]% per month ([12.68]% annually) or the maximum allowed by Law, whichever is less.

Late Payments

Right to Suspend. If [PARTY B] fails to make payments when due [three] times over any [six]-month period, [PARTY A] may suspend the [DELIVERABLE] until [PARTY B] pays all outstanding fees.

Interest on Late Payments. Any amount not paid when due will bear interest from the due date until paid at a rate equal to [1]% per month ([12.68]% annually) or the maximum allowed by Law, whichever is less.

Late Payments

Right to Suspend. If [PARTY B] fails to make payments when due [three] times over any [six]-month period, [PARTY A] may suspend the [DELIVERABLE] until [PARTY B] pays all outstanding fees plus a $[REINSTATEMENT FEE] reinstatement fee.

Interest on Late Payments. Any amount not paid when due will bear interest from the due date until paid at a rate equal to [1]% per month ([12.68]% annually) or the maximum allowed by Law, whichever is less.

Term. This agreement will commence on [the Effective Date / [DATE, MONTH]], and will continue for [TERM MONTHS] months unless terminated earlier (the "Term").

Term. This agreement begins on [the Effective Date / [DATE, MONTH]], and will continue until terminated (the "Term").

Term. This agreement begins on [the Effective Date] and will continue until [CONDITION / EVENT / FULFILLMENT OF ORDER / COMPLETION OF SERVICES], unless terminated earlier (the "Term").

Term

Initial Term. The initial term of this agreement begins on [the Effective Date] and will continue for [TERM YEARS] years, unless terminated earlier (the "Initial Term").

Renewal Term by Notice. [PARTY B] may renew this agreement for successive renewal terms of [RENEWAL YEARS] length ("Renewal Terms"), unless terminated earlier, by giving [PARTY A] notice of the intent to renew this agreement, at least [RENEWAL NOTICE DAYS] Business Days before the end of the Current Term.

Term Definition. "Term" means either the Initial Term or the then-current Renewal Term.

Term

Initial Term. The initial term of this agreement will begin on [the Effective Date] and continue for [TERM MONTHS] months, unless terminated earlier (the "Initial Term").

Automatic RenewalSubject to paragraph [ELECTION NOT TO RENEW], at the end of each Term this agreement will automatically renew for a renewal term of [RENEWAL TERM MONTHS] months, unless terminated earlier ("Renewal Term").

Election Not to Renew. Either party may elect not to renew this agreement, by providing notice to the other party at least [NON-RENEWAL NOTICE PERIOD] Business Days' before the end of the Term.

Term Definition. "Term" means either the Initial Term or the then-current Renewal Term.

No Warranty

"As-Is". The [Licensed] Software is provided "as is," with all faults, defects, bugs, and errors.

No Warranty. Unless otherwise listed in this agreement,

[PARTY A] does not make any warranty regarding the [Licensed] Software, which includes that 

[PARTY A] disclaims to the [fullest] extent authorized by Law any and all [other] warranties, whether express or implied, including any implied warranties of [title, non-infringement, quiet enjoyment, integration,] merchantability or fitness for a particular purpose.

Licensed Software Ownership. Licensor will retain all ownership of the Software and all intellectual property rights in it.

Title. You acknowledge that no title to the intellectual property in the Product is transferred to you. Title, ownership, rights, and intellectual property rights in and to the Product shall remain that of [PARTY A] and/or the companies providing content.

Non-Infringement

No Infringement. The [Licensed Goods / Licensed Software / Licensed Method] does not infringe the Intellectual Property rights or other rights of any third party.

No Third Party infringement. [Except as disclosed in [PARTY A]'s Disclosure Schedule] To [PARTY A]'s Knowledge, no third party is infringing the [Licensed Goods / Licensed Software / Licensed Method].

Not in Public Domain. The [Licensed Goods / Licensed Software / Licensed Method] is not in the public domain.

Third Party Software

Acknowledgement of Third Party Software[PARTY B] hereby acknowledges that the Licensed Software might contain third party software that require additional notices or are subject to additional terms and conditions.

Third Party Software Terms. If [PARTY A] does include third party software in the Licensed Software,

[PARTY A] shall post any additional the notices and terms and conditions on [PARTY A]'s website at [URL], and

those terms and conditions are hereby incorporated into this agreement.

Conflicting Terms. If there are any conflicts between this agreement and the additional terms or conditions governing third party software, those additional terms and conditions will control in connection with third party software.

[PARTY B] Data

Collect and Use of Data[PARTY A] may collect and use technical information gathered as part of its maintenance, support, and training services, only for the purpose of improving its products and services.

Non-Disclosure[PARTY A] will not disclose this any of this information in a form that personally identifies [PARTY B] or [PARTY B]'s clients.

Government End Users

"Commercial Software". If [Licensed] Software and related documentation are supplied to or purchased by or on behalf of the United States Government,

that [Licensed] Software will be deemed to be "commercial software", as that term is used in the Federal Acquisition Regulation system, and

the rights of the United States will not exceed the minimum rights listed in FAR 52.227-19 for "restricted computer software".

All Other Terms Apply. All other terms and conditions of this agreement otherwise apply.

Export Control Laws. Each party shall obtain all Permits necessary to and otherwise comply with all Laws on export control applicable to this agreement and all transactions contemplated under this agreement.

Confidentiality Obligation. The receiving party will hold the Confidential Information in confidence.

Confidentiality 

Confidentiality Obligation. The receiving party shall hold in confidence all Confidential Information disclosed by the disclosing party to the receiving party.

Use Solely for Purpose. A receiving party may only use the Confidential Information according to the terms of this agreement[ and solely for the Purpose].

Non-Disclosure. The receiving party will not disclose Confidential Information to a third party without the disclosing party's written consent.

No Copies or Recording. The receiving party may not copy, record, or otherwise reproduce the Confidential Information without the disclosing party's written consent.

Confidentiality

Confidentiality Obligation. The receiving party shall hold in confidence all Confidential Information disclosed by the disclosing party to the receiving party.

Use Solely for Purpose. A receiving party may only use the Confidential Information according to the terms of this agreement[ and solely for the Purpose].

Confidentiality

Confidentiality Obligation. The receiving party shall hold in confidence all Confidential Information disclosed by the disclosing party to the receiving party.

Use Solely for Purpose. A receiving party may only use the Confidential Information according to the terms of this agreement[ and solely for the Purpose].

Non-Disclosure. Neither party will disclose Confidential Information to a third party without the disclosing party's written consent.

Monitoring[PARTY A] has no obligation, but reserves the right, to monitor and review your account information and history and the content and materials uploaded by you or others in the Software for the purpose of determining compliance with this Agreement or to detect illegal activity.

Termination

Termination by [PARTY A]. [PARTY A] may terminate this agreement with immediate effect if [PARTY B]s breaches any part of this agreement.

Termination by [PARTY B]. [PARTY B] may terminate this agreement if you uninstall, discontinue use of, and destroy your copies of the Licensed Software, effective when [PARTY B] delivers notice that it has done so.

Effect of Termination

Termination of Obligations. Subject to paragraph [PAYMENT OBLIGATIONS], on termination or expiration of this agreement, each party's rights and obligations under this agreement will cease immediately.

Payment Obligations. Even after termination or expiration of this agreement, each party shall

pay any amounts it owes to the other party, including payment obligations for services already rendered, work already performed, goods already delivered, or expenses already incurred, and

refund any payments received but not yet earned, including payments for services not rendered, work not performed, or goods not delivered, expenses forwarded.

No Further Liability. On termination or expiration of this agreement, neither party will be liable to the other party, except for liability

that arose before the termination or expiration of this agreement, or

arising after the termination or expiration of this agreement and in connection with sections [[CONFIDENTIALITY][TAXES], or [TERMINATION]].

Effect of Termination

Termination of Obligations. Subject to paragraph [PAYMENT OBLIGATIONS], on the expiration or termination of this agreement, each party's rights and obligations under this agreement will cease immediately.

Payment Obligations. On the expiration or termination of this agreement, each party shall

pay any amounts it owes to the other party, including payment obligations for services already rendered, work already performed, goods already delivered, or expenses already incurred, and

refund any payments received but not yet earned, including payments for services not rendered, work not performed, or goods not delivered, expenses forwarded.

Indemnification

Indemnification by [PARTY B]. [PARTY B] (as an indemnifying party) shall indemnify [PARTY A] (as an indemnified party) against all losses and expenses in connection with any proceeding arising out of

[PARTY B]'s use of the Software, and

[PARTY B]'s unauthorized customization, modification, or other alterations to the Software, including claims that its customization, modification, or other alterations infringe a third party's Intellectual Property rights, 

Mutual Indemnification. Each party (as an indemnifying party) shall indemnify the other (as an indemnified party) against all losses in connection with any proceeding arising out of the indemnifying party's willful misconduct or gross negligence.

Notice and Failure to Notify

Notice Requirement. Before bringing a claim for indemnification, the indemnified party shall

notify the indemnifying party of the indemnifiable proceeding, and

deliver to the indemnifying party all legal pleadings and other documents reasonably necessary to indemnify or defend the indemnifiable proceeding.

Failure to Notify. If the indemnified party fails to notify the indemnifying party of the indemnifiable proceeding, the indemnifying will be relieved of its indemnification obligations to the extent it was prejudiced by the indemnified party's failure.

Exclusive Remedy. The parties' right to indemnification is the exclusive remedy available in connection with the indemnifiable proceedings described in this section [INDEMNIFICATION].

Limitation on Liability

[PARTY A] Liability. [PARTY A] will not be liable for breach-of-contract damages suffered by [PARTY B] that are remote or speculative, or that [PARTY A] could not have reasonably have foreseen on entry into this agreement.

Maximum Liability. [PARTY A]'s liability under this agreement will not exceed $[MAXIMUM LIABILITY].

Limitation on Liability

[PARTY A] Liability. [PARTY A] will not be liable for breach-of-contract damages suffered by [PARTY B] that are remote or speculative, or that [PARTY A] could not reasonably have foreseen on entry into this agreement.

Maximum Liability. [PARTY A]'s liability under this agreement will not exceed $[PARTY A MAXIMUM LIABILITY].

Excluded Claims. [PARTY A] will not be liable for losses due to any claims arising out this agreement and relating to [EXCLUDED CLAIMS SCOPE].

Limitation on Liability

[PARTY B] Liability. [PARTY B] will not be liable for breach-of-contract damages suffered by [PARTY A] that are remote or speculative, or that [PARTY B] could not have reasonably have foreseen on entry into this agreement.

Maximum Liability. [PARTY B]'s liability under this agreement will not exceed $[MAXIMUM LIABILITY].

Limitation on Liability

[PARTY A] Liability. [PARTY B] will not be liable for breach-of-contract damages suffered by [PARTY A] that are remote or speculative, or that [PARTY B] could not reasonably have foreseen on entry into this agreement.

Maximum Liability. [PARTY B]'s liability under this agreement will not exceed $[PARTY A MAXIMUM LIABILITY].

Excluded Claims. [PARTY B] will not be liable for losses due to any claims arising out this agreement and relating to [EXCLUDED CLAIMS SCOPE]

Limitation on Liability

Mutual Limitation on Liability. Neither party will be liable for breach-of-contract damages that are remote or speculative, or that the breaching party could not reasonably have foreseen on entry into this agreement.

Maximum Liability

[PARTY A]'s Maximum Liability[PARTY A]'s liability under this agreement will not exceed $[MAXIMUM LIABILITY].

[PARTY B]'s Maximum Liability[PARTY B]'s liability under this agreement will not exceed [$[MAXIMUM LIABILITY]] [the total amount paid by [PARTY A] to [PARTY B] under this agreement over the [six] months preceding the claim giving rise to the liability]].

Limitation on Liability

Mutual Limitation on Liability. Neither Party will be liable for breach-of-contract damages that are remote or speculative, or that the breaching party could not have foreseen on entry into this agreement.

Maximum Liability

[PARTY A]'s Maximum Liability[PARTY A]'s liability under this agreement will not exceed $[MAXIMUM LIABILITY].

[PARTY B]'s Maximum Liability[PARTY B]'s liability under this agreement will not exceed [$[MAXIMUM LIABILITY] [the total amount paid to [PARTY B] over the six months preceding the claim giving rise to liability]].

Excluded Claims

Excluded Claims for [PARTY A][PARTY A] will not be liable for losses due to any claims arising out of this agreement and related to [PARTY A EXCLUDED CLAIMS SCOPE].

Excluded Claims for [PARTY B][PARTY B] will not be liable for losses due to any claims arising out of this agreement and related to[PARTY B EXCLUDED CLAIMS SCOPE].

 Limitation on Liability

 [PARTY A] Liability. [PARTY A] will not be liable for breach-of-contract damages suffered by [PARTY B] that are remote or speculative, or that [PARTY A] could not have reasonably have foreseen on entry into this agreement.

 Maximum Liability. [PARTY A]'s liability under this agreement will not exceed the fees paid by [PARTY B] under this agreement during the 12 months preceding the date upon which the related claim arose.

Limitation on Liability

Mutual Limit on Liability. Neither party will be liable for breach-of-contract damages suffered by the other party that are remote or speculative, or that could not have reasonably been foreseen on entry into this agreement.

Maximum Liability. [PARTY A]'s liability under this agreement will not exceed the fees paid by [PARTY B] under this agreement during the 12 months preceding the date upon which the related claim arose.

Limitation on Liability

Mutual Limitation on Liability. Neither party will be liable for breach-of-contract damages that are remote or speculative, or that the breaching party could not reasonably have foreseen on entry into this agreement.

Maximum Liability[PARTY A]'s liability under this agreement will not exceed $[MAXIMUM LIABILITY].

Limitation on Liability. Neither party will be liable for breach-of-contract damages that are remote or speculative, or that the breaching party could not reasonably have foreseen on entry into this agreement.

Definitions

"Confidential Information" means all material, non-public, business-related information, written or oral, whether or not it is marked as confidential, that is disclosed or made available to the recipient, directly or indirectly, through any means of communication or observation by the disclosing party or any of its affiliates or representatives.

"Intellectual Property" means any and all of the following in any jurisdiction throughout the world

(a) trademarks and service marks, including all applications and registrations, and the goodwill connected with the use of and symbolized by the foregoing,

(b) copyrights, including all applications and registrations related to the foregoing,

(c) trade secrets and confidential know-how,

(d) patents and patent applications,

(e) websites and internet domain name registrations, and

(f) other intellectual property and related proprietary rights, interests and protections (including all rights to sue and recover and retain damages, costs and attorneys' fees for past, present, and future infringement, and any other rights relating to any of the foregoing).

"Law" means

(a) any law (including the common law), statute, bylaw, rule, regulation, ordinance, treaty, decree, judgment, and

(b) any official directive, protocol, code, guideline, notice, approval, policy, or other requirement of any governmental authority having the force of law.

"License Fee" is defined in section [LICENSE FEES].

"Licensed Software" is defined in the introduction to this agreement.

"Permits" means all material licenses, consents, franchises, permits, certificates, approvals, and authorizations, from governmental authorities or third parties necessary for the ownership and operation of the party's business.

"Taxes" includes all taxes, assessments, charges, duties, fees, levies, and other charges of a government authority, including income, franchise, capital stock, real property, personal property, tangible, withholding, employment, payroll, social security, social contribution, unemployment compensation, disability, transfer, sales, use, excise, gross receipts, stamp, value-added, and all other taxes of any kind for which a party may have any liability imposed by any government authority, whether disputed or not, any related charges, interest or penalties imposed by any government authority, and any liability for any other person as a transferee or successor by Law, contract or otherwise.

General Provisions

Entire Agreement. The parties intend that this agreement, together with all attachments, schedules, exhibits, and other documents that both are referenced in this agreement and refer to this agreement,

represent the final expression of the parties' intent relating to the subject matter of this agreement,

contain all the terms the parties agreed to relating to the subject matter, and

replace all of the parties' previous discussions, understandings, and agreements relating to the subject matter of this agreement.

Amendment. This agreement may be amended only by a written instrument executed by [TITLE OR POSITION OF AUTHORIZED INDIVIDUAL] of each party.

Amendment

Before the Effective Time. Before the Effective Time, this agreement may be amended by either the Parent Board of Directors or Company Board of Directors.

After the Effective Time.  After the Effective Time, this agreement may only be amended by the Parent Board of Directors or Company Board of Directors with the prior written approval by the Company Shareholders, if such approval is required by the [APPLICABLE STATUTE].

Method of Amendment. This agreement can be amended only by a written instrument signed on behalf of both parties. 

Amendment. This agreement can be amended only by a writing signed by both parties.

Amendment. This agreement may be amended only by written consent of the Company and Stockhoolders of at least [66%] of the outstanding shares of Common Stock. Any consent will only be effective in the specific instance and purpose for which it was given and shall not constitute continuing consent.

Amendment. This agreement may be amended only by a written instrument executed by the party against whom the amendment is to be enforced.

Amendment. [PARTY A] may amend the terms and conditions of this agreement at any time by reasonable notice, including without limitation by posting revised terms on its website at the URL [URL].

Assignment and Successors

Assignment. Neither party may assign this agreement or any of their rights or obligations under this agreement without the prior written consent of the other party.

Successors. This agreement benefits and binds the parties and their respective heirs, successors, and permitted assigns.

Assignment. Neither party may assign this agreement or any of their rights or obligations under this agreement without the other party's written consent.

Assignment

[PARTY B] Requires [PARTY A]'s Consent[PARTY B] may not assign this agreement or any of its rights or obligations under this agreement without [PARTY A]'s written consent.

[PARTY A] May Give Notice to Assign[PARTY A] may assign this agreement or any of its rights or obligations under this agreement, by giving [PARTY B] notice.

Assignment. [PARTY B] may not assign this agreement or any of its rights or obligations under this agreement without [PARTY A]'s prior written consent. [PARTY A] may assign this agreement or any of its rights and obligations under this agreement, effective upon Notice to [PARTY B],

to any subsidiary or affiliate, or

in connection with any sale, transfer, or other disposition of all or substantially all of its business or assets but only if the assignee assumes all of [PARTY A]'s obligations.

Notices

Method of Notice. The parties shall give all notices and communications between the parties in writing by (i) personal delivery, (ii) a nationally-recognized, next-day courier service, (iii) first-class registered or certified mail, postage prepaid[, (iv) fax][, or (v) electronic mail] to the party's address specified in this agreement, or to the address that a party has notified to be that party's address for the purposes of this section.

Receipt of Notice. A notice given under this agreement will be effective on

the other party's receipt of it, or

if mailed, the earlier of the other party's receipt of it and the [fifth] business day after mailing it. 

Severability. If any part of this agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.

Waiver

Affirmative Waivers. Neither party's failure or neglect to enforce any rights under this agreement will be deemed to be a waiver of that party's rights.

Written Waivers. A waiver or extension is only effective if it is in writing and signed by the party granting it.

No General Waivers. A party's failure or neglect to enforce any of its rights under this agreement will not be deemed to be a waiver of that or any other of its rights.

No Course of Dealing. No single or partial exercise of any right or remedy will preclude any other or further exercise of any right or remedy.

Governing Law. This agreement shall be governed, construed, and enforced in accordance with the laws of the State of [GOVERNING LAW STATE], without regard to its conflict of laws rules.

Governing Law.

Applicable Law. This agreement will be governed by and construed in accordance with the substantive laws in force in:

the State of California, if a license to the Software is purchased when you are in the United States, Canada, or Mexico; or

Japan, if a license to the Software is purchased when you are in Japan, China, Korea, or other Southeast Asian country where all official languages are written in either an ideographic script (e.g., hanzi, kanji, or hanja), and/or other script based upon or similar in structure to an ideographic script, such as hangul or kana; or

England, if a license to the Software is purchased when you are in any jurisdiction not described above.

Jurisdiction. The respective courts of Santa Clara County, California when California law applies, Tokyo District Court in Japan, when Japanese law applies, and the competent courts of London, England, when the law of England applies, shall each have non-exclusive jurisdiction over all disputes relating to this agreement.

United Nations Convention on Contracts. This agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

Governing Law and Consent to Jurisdiction and Venue

Governing Law. This agreement, and any dispute arising out of the [SUBJECT MATTER OF THE AGREEMENT], shall be governed by the laws of the State of [GOVERNING LAW STATE].

Consent to Jurisdiction. Each party hereby irrevocably consents to the [exclusive, non-exclusive] jurisdiction and venue of any [state or federal] court located within [VENUE COUNTY] County, State of [VENUE STATE], in connection with any matter arising out of this [agreement / plan] or the transactions contemplated under this [agreement / plan].

Consent to Service. Each party hereby irrevocably

agrees that process may be served on it in any manner authorized by the Laws of the State of [GOVERNING LAW STATE], and 

waives any objection which it might otherwise have to service of process under the Laws of the State of [GOVERNING LAW STATE].

Equitable Relief

Acknowledgment of Irreparable Harm. The parties acknowledge that breach or threatened breach of any of the obligations in this agreement would result in irreparable harm to the non-breaching party that cannot be adequately relieved solely by monetary damages.

Intent to Allow for Equitable Remedies. Accordingly, the parties intend, and hereby agree that after such breach, the non-breaching party may request from a court any applicable equitable remedies, including injunctive relief, without the need to post any security.

Equitable Relief

Acknowledgment of Irreparable Harm. Each party acknowledges that their breach or threatened breach of their obligations under sections [CONFIDENTIALITY], [NON-COMPETITION], and [NON-SOLICITATION][INCLUDE OTHER SPECIFIC OBLIGATIONS] would result in irreparable harm to the other party that cannot be adequately relieved by money damages alone.

Intent to Allow for Equitable Remedies. Accordingly, the parties hereby acknowledge their mutual intent that after any breach of the obligations listed in the paragraph directly above, the non-breaching party may request any applicable equitable remedies from a court, including injunctive relief, without the need for that party to post any security.

Equitable Relief. The parties acknowledge that if either party violates the specific obligations of this agreement, it could lead the other party to suffer irreparable harm, that is, harm for which monetary damages would be an inadequate remedy. Further, the parties acknowledge that if in order to obtain [TYPE OF EQUITABLE RELIEF REQUESTED] the injured party was required to prove irreparable harm, the delay needed to prove irreparable harm could increase the harm the injured party would suffer. Therefore, parties intend that if either party violates the specific obligations of this agreement, then for the purposes of determining whether to grant equitable relief any court should assume that that violation would cause injured party irreparable harm.

Interpretation. Each party has had adequate opportunity to review this agreement. Any interpretation of this agreement shall be made without regard to authorship or negotiation.

Interpretation

References to Specific Terms

Accounting Principles. Unless otherwise specified, where the character or amount of any asset or liability, item of revenue, or expense is required to be determined, or any consolidation or other accounting computation is required to be made, that determination or calculation will be made in accordance with the generally accepted accounting principles defined by the professional accounting industry in effect in the United States ("GAAP").

Currency. Unless otherwise specified, all dollar amounts expressed in this agreement refer to American currency.

"Including." Where this agreement uses the word "including," it means "including without limitation," and where it uses the word "includes," it means "includes without limitation."

"Knowledge." Where any representation, warranty, or other statement in this agreement, or in any other document entered into or delivered under this agreement,] is expressed by a party to be "to its knowledge," or is otherwise expressed to be limited in scope to facts or matters known to the party or of which the party is aware, it means:

the then-current, actual knowledge of the directors and officers of that party, and

the knowledge that would or should have come to the attention of any of them had they investigated the facts related to that statement and made reasonable inquiries of other individuals reasonably likely to have knowledge of facts related to that statement.

Statutes, etc. Unless specified otherwise, any reference in this agreement to a statute includes the rules, regulations, and policies made under that statute and any provision that amends, supplements, supersedes, or replaces that statute or those rules or policies.

Number and Gender. Unless the context requires otherwise, words importing the singular number include the plural and vice versa; words importing gender include all genders.

Headings. The headings used in this agreement and its division into sections, schedules, exhibits, appendices, and other subdivisions do not affect its interpretation.

Internal References. References in this agreement to sections and other subdivisions are to those parts of this agreement.

Calculation of Time. In this agreement, a period of days begins on the first day after the event that began the period and ends at 5:00 p.m. [TIME ZONE] Time on the last day of the period. If any period of time is to expire, or any action or event is to occur, on a day that is not a Business Day, the period expires, or the action or event is considered to occur, at 5:00 p.m. [TIME ZONE] Time on the next Business Day.

Construction of Terms. The parties have each participated in settling the terms of this agreement. Any rule of legal interpretation to the effect that any ambiguity is to be resolved against the drafting party will not apply in interpreting this agreement.

Conflict of Terms. If there is any inconsistency between the terms of this agreement and those in any schedule to this agreement or in any document entered into under this agreement, the terms of [this agreement/[SPECIFIED AGREEMENTS]] will prevail. The parties shall take all necessary steps to conform the inconsistent terms to the terms of [this agreement / [SPECIFIED AGREEMENTS].

Force Majeure. Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for payment obligations.

20.10. Force Majeure

(a) No Liability. Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for payment obligations.

(b) Best Efforts to Cure. In the event of a threatened default or default as a result of any cause beyond its reasonable control, the defaulting party shall nonetheless exercise its best efforts to avoid and cure such default.

(c) Right to Terminate. In the event such an event prevents performance thereunder for a period in excess of ninety (90) days, then the non-defaulting party may elect to terminate this Agreement and/or cancel or suspend any Purchase Orders thereunder by a written notice to the defaulting party.

Force Majeure. A party shall not be liable for any failure of or delay in the performance of this agreement for the period that such failure or delay is

 beyond the reasonable control of a party,

 materially affects the performance of any of its obligations under this agreement, and

 could not reasonably have been foreseen or provided against, but

will not be excused for failure or delay resulting from only general economic conditions or other general market effects.

Survival. The parties' obligations under sections [CONFIDENTIALITY OBLIGATIONS], [NON-COMPETITION OBLIGATION], and [EFFECT OF TERMINATION] will survive the [TERMINATION, EXPIRATION, CLOSING DATE] of this agreement.

Survival

Survival of Core Clauses. The parties' obligations under sections [CONFIDENTIALITY OBLIGATIONS], [NON-COMPETITION OBLIGATION], and [EFFECT OF TERMINATION] will survive the [expiration or termination of this agreement / closing].

Survival of Representations, Warranties, and Covenants. The representations, warranties, and covenants of the parties contained in this agreement or in any certificate delivered by them under this agreement will survive the [TERMINATION, EXPIRATION, CLOSING DATE] of this agreement for [SURVIVAL TIME PERIOD] months.

Survival of Indemnification Obligations. The parties' indemnification obligations under the [INDEMNIFICATION CLAUSE] will survive the [TERMINATION, EXPIRATION, CLOSING DATE] of this agreement with respect to any claims the indemnified party has notified the indemnifying party of before the termination of the survival period listed above.

Survival

Survival of Core Clauses. The parties' obligations under sections [CONFIDENTIALITY OBLIGATIONS], [NON-COMPETITION OBLIGATION], and [EFFECT OF TERMINATION] will survive the [expiration or termination of this agreement / closing].

Survival of Representations, Warranties, and Covenants. The representations, warranties, and covenants of the parties contained in this agreement or in any certificate delivered by them under this agreement will survive the [TERMINATION, EXPIRATION, CLOSING DATE] of this agreement for [SURVIVAL TIME PERIOD] months.

Signed:

(President) or (Chairman)

This agreement has been signed by the parties.

[PARTY A NAME]

Name: [PARTY A SIGNATORY NAME]

Title: [PARTY A SIGNATORY TITLE]

[PARTY B NAME]

Name: [PARTY B SIGNATORY NAME]

Title: [PARTY B SIGNATORY TITLE]