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MARKETING LICENSE AGREEMENT | Document Parties: EGC INFOMATICS, Inc | GUARDIAN TECHNOLOGIES INTERNATIONAL, INC You are currently viewing:
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EGC INFOMATICS, Inc | GUARDIAN TECHNOLOGIES INTERNATIONAL, INC

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Title: MARKETING LICENSE AGREEMENT
Governing Law: Virginia     Date: 4/16/2008
Industry: Textiles - Non Apparel     Law Firm: Pillsbury Winthrop     Sector: Consumer Cyclical

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MARKETING LICENSE AGREEMENT

 


 

THIS MARKETING LICENSE AGREEMENT (this “Agreement”) is entered into by and between GUARDIAN TECHNOLOGIES INTERNATIONAL, INC., a Delaware corporation (hereinafter “GUARDIAN”), and EGC INFOMATICS, Inc. (d.b.a. International Threat Detection Systems [ITDS]), a Florida corporation, for itself and its affiliate companies (hereinafter collectively referred to as “EGC”), and shall be effective as of the 1st day of November, 2007 (the “Effective Date”).

 

WITNESSETH:

WHEREAS , GUARDIAN is the owner of certain computer programs defined herein as the “Products”; and

WHEREAS , EGC is in the business of distributing and supporting computer software applications to its customers and prospects; and

WHEREAS , EGC has special knowledge concerning the business needs of its customers and prospects; and

WHEREAS , GUARDIAN wishes to appoint EGC as its non-exclusive marketing representative for the Products and authorize EGC to provide certain services relating to such marketing efforts; and

WHEREAS , EGC is willing to accept such appointment and to undertake to provide such services under the terms of this Agreement;

 

NOW, THEREFORE , the parties agree as follows:

1.

 Scope

The Products covered by this Agreement are listed on Exhibit “A” hereto and consist of computer programs and associated end-user documentation offered generally to end-users by GUARDIAN under the terms and conditions of its standard license agreement. Additional software and/or hardware applications may be added to the list of Products with the mutual consent of the parties. The current form of license agreement is attached hereto as Exhibit “B”. GUARDIAN also offers enhancement and error-correction services with respect to the Products under the terms and conditions of said agreement. GUARDIAN reserves the right to change such agreement at any time.

2.

 Appointment of EGC

Subject to the terms and conditions hereof, GUARDIAN hereby designates and appoints EGC for the term of this Agreement, as a non-exclusive representative for the solicitation of license agreements relating to the Products from prospective end-users identified by EGC. EGC hereby accepts such designation and appointment. For purposes of this Agreement the term “affiliate” shall mean any entity that directly or



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Proprietary Software License and Hardware Lease Agreement

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indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such other entity. In the case of a corporation, control shall mean, among other things, the direct or indirect ownership of more than fifty percent (50%) of its outstanding voting stock. The foregoing notwithstanding, however, for the purpose of this Agreement, GUARDIAN shall not be deemed to be an affiliate of EGC, and EGC shall not be deemed an affiliate of GUARDIAN.

3.

Duties of EGC

3.1.

EGC agrees, for the term of this Agreement, that it shall promote and market the Products to prospective end-users by:

3.1.1.

Identifying prospects that may benefit from use of the Products.

3.1.2.

Contacting such prospects and conducting presentations of the Products.

3.1.3.

Performing demonstrations of the Products to prospective end-users either on the premises of such end-users or at EGC’s facilities.

3.1.4.

Negotiating and obtaining the prospects’ execution of license agreements and service agreements.

3.1.5.

Forwarding executed license agreements and service agreements to GUARDIAN for GUARDIAN’s evaluation and acceptance.

3.1.6.

Serving as a point of contact for necessary communications between end-users and GUARDIAN with respect to the Products.

 

3.2.

EGC shall prepare and submit to GUARDIAN monthly a complete and accurate written report of its activities hereunder, including, without limitation, the following:

3.2.1.

A description of all promotional and marketing activities undertaken during the preceding month setting forth the identity and addresses of prospective end-users.

3.2.2.

A summary of the nature of contacts made with such end-users and EGC’s assessment of the results of such contacts.

3.2.3.

A listing by identity and date of all license agreements executed by prospective end-users and forwarded to GUARDIAN as a result of EGC’s activities.

4.

Demonstration Rights 

GUARDIAN hereby grants to EGC a non-exclusive, non-transferable license to use during the term of this Agreement a reasonable number of “Demonstration Copies” of each Product for purposes of demonstrating the Product to prospective end-users in connection with the marketing activities. EGC shall use the Demonstration Copies for making demonstrations to prospective end-users (i) on computer systems owned or leased by EGC or (ii) on the computer system of a prospective end-user. In each case,



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EGC shall (i) control and limit the use of Products for the specific purpose authorized; (ii) accompany the prospective end-user at all times that the Product is installed at the site of such prospective end-user; and (iii) upon completion of the demonstration, remove the Product from such end-user’s computer and cause the deletion of all portions of the Product from computer files in which it resided. EGC acknowledges that the Products, including any intellectual property rights pertaining thereto, are owned by GUARDIAN and represent or contain valuable copyrights and trade secrets of GUARDIAN. EGC shall not attempt to reverse-engineer or decompile the machine-readable code in which the programs are delivered. EGC shall protect the Products from unauthorized copying, dissemination, or disclosure and from other unauthorized use.

5.

License Agreements

5.1.

EGC shall have the authority to solicit the signature of end-users on GUARDIAN’s standard form of license agreement, as such agreement may be revised from time to time by GUARDIAN and furnished to EGC, and such other license agreements as EGC and GUARDIAN may mutually agree. Additionally, upon request by an end-user, EGC may solicit the signature of such end-user on EGC’s standard form of license agreement as such agreement may be revised from time to time by EGC, provided however, such license agreement if accepted by GUARDIAN, shall be promptly assigned by EGC to GUARDIAN. Notwithstanding anything to the contrary in this Agreement, EGC shall not execute or accept on behalf of GUARDIAN any agreement solicited from an end-user under this Section 5.1, and EGC shall inform all end-users that any license agreement solicited under this Section 5.1 must be forwarded to GUARDIAN for consideration, acceptance, and execution by GUARDIAN in order for such agreement to be binding on GUARDIAN.

5.2.

Notwithstanding anything to the contrary contained in this Agreement, EGC has and shall exercise no authority to (i) make any alterations in GUARDIAN’s standard form of license agreement; (ii) make statements or representations concerning the Products that exceed or are inconsistent with the marketing materials and technical specifications provided to EGC by GUARDIAN; or (iii) bind GUARDIAN to any undertaking or performance with respect to the Products.




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6.

Ancillary Services

6.1.

EGC may also provide to end-users appropriate ancillary services in support of the Products. Such services include, without limitation, the following:

6.1.1.

Assistance with installation of the Products on end-users’ computers.

6.1.2.

Technical training of end-users’ personnel.

6.1.3.

Implementation and consulting support services to end-users with respect to the functions and operation of the Products.

6.2.

The terms, conditions, and charges for such ancillary services shall be established by EGC directly with end-users. EGC shall inform each end-user (i) that GUARDIAN’s obligations are limited to those contained in the license agreement, (ii) that any services of EGC are offered on EGC’s own accounts, and (iii) that EGC is solely responsible for such ancillary services.

6.3.

 Upon the request by EGC, and subject to Section 6.2, GUARDIAN may provide to EGC (or to an end-user on behalf of EGC) the ancillary services described in Section 6.1 in support of the Products. All such ancillary services shall be provided to EGC (or to an end-user on behalf of EGC) at rates agreed upon from time to time by EGC and GUARDIAN, provided such rates shall in no event exceed GUARDIAN’s published rate schedule, as in effect at the time such services are rendered by GUARDIAN. The parties acknowledge and agree that EGC, and not the end-user shall be responsible for payment to GUARDIAN for services provided under this Section 6.3, provided that GUARDIAN shall not be entitled to payment from EGC unless and until (and only to the extent that) EGC receives payment for such services from an end-user.

7.

Undertaking of GUARDIAN

GUARDIAN shall:

7.1.

Promote the Products as it deems appropriate with international and local advertising.

7.2.

Provide to EGC’s employees technical training with respect to the Products. GUARDIAN shall provide such training at its own cost, but EGC shall be responsible for travel and living expenses incurred by its employees.

7.3.

Provide reasonable quantities of marketing materials, including descriptive brochures and promotional materials suitable for unrestricted distribution.

7.4.

Evaluate the qualifications of prospective end-users who have executed license agreements and service agreements forwarded to GUARDIAN by EGC. GUARDIAN reserves the right, in its discretion, to reject license agreements and service agreements executed by prospective end-users.

7.5.

Perform all obligations of GUARDIAN under accepted license agreements, including shipment or delivery to end-users of copies of the computer programs,



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documentation, error-correction materials, and updates that constitute the Products.

7.6.

Invoice and collect amounts payable under each license agreement accepted by GUARDIAN.

8.

Compensation

8.1.

EGC shall receive a commission equal to eighteen percent (18%) of the net license fee revenue actually collected by GUARDIAN under license agreements for Products which are secured and forwarded to GUARDIAN by EGC and accepted by GUARDIAN.

The term “net license fee revenue” means the actual license fee revenue received by GUARDIAN less royalties, commissions, hardware fees or similar payments due third parties in connection with the licensing of Products. Payment of compensation to EGC shall be made by GUARDIAN within ten (10) days after receipt of payment from end-user. Cash payment shall be accompanied by a detailed accounting of the basis for such payment, identifying the source and amount of applicable revenues received by GUARDIAN. “Net license fee revenue” shall not include maintenance or service fees paid to GUARDIAN by end-users.

8.2.

Amounts payable to EGC shall be subject to a charge-back or credit in favor of GUARDIAN in the amount previously paid EGC with respect to amounts that are refunded to end-users. EGC agrees to cooperate with GUARDIAN and aid in the collection of accounts receivable under license agreements forwarded to GUARDIAN by EGC.

8.3.

EGC shall be responsible for its own expenses and costs under this Agreement, and GUARDIAN shall have no obligation to reimburse EGC for any expenses or costs incurred by EGC in the performance of its duties hereunder.

9.

Term and Termination

9.1.

The term of this Agreement shall commence upon the Effective Date and shall continue for two (2) years thereafter unless sooner terminated in accordance with the provisions hereof. This Agreement shall be automatically renewed for additional two year periods every two years unless there is an uncured default by EGC.

9.2.

GUARDIAN may terminate this Agreement upon written notice to EGC in the event of the breach of any material obligation hereunder by EGC that is not cured by EGC after receipt from GUARDIAN of thirty (30) days’ written notice calling attention to such breach and demanding cure thereof. In the event of such termination for cause, GUARDIAN’s sole obligation to EGC shall be to pay compensation accrued for net revenues collected on covered license agreements accepted by GUARDIAN prior to the date of termination.



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9.3.

Upon termination of this Agreement for any reason, EGC shall within thirty (30) days of such termination return to GUARDIAN all Demonstration Copies of the Products, and all copies of related marketing materials. EGC shall further provide to GUARDIAN copies of EGC’s prospect files.

10.

Indemnities

10.1.

GUARDIAN hereby agrees to indemnify EGC from and against any and all claims, demands, or actions arising out of any material breach by GUARDIAN of any of the terms and conditions of any license agreement with an end-user secured by EGC hereunder or any breach of GUARDIAN’s obligations hereunder.

10.2.

EGC hereby agrees to indemnify GUARDIAN from and against any and all claims, demands, or actions arising out of EGC’s activities or performance outside the express authorization provided EGC under this Agreement or any breach of EGC’s obligations hereunder.

10.3.

The indemnities contained in this Section 10 shall be conditioned upon the indemnifying party’s receiving (i) prompt written notice of any claims, demands, or actions for which indemnity is sought; (ii) cooperation in the defense by the party seeking indemnity; and (iii) control of the defense and/or settlement of such claim, demand, or action as to which indemnity is sought.

11.

Limitations of Liability  

In no event shall either party hereto be entitled to special, indirect, or consequential damages, including lost profits, for breach of this Agreement. Remedies shall be limited to claims for amounts due hereunder or for indemnification as provided for herein. However, the foregoing limitation of remedies shall not apply to any action by GUARDIAN for infringement by EGC; any action based on or with respect to unauthorized publication, disclosure, or use of confidential information or trade secrets of GUARDIAN; or any action based on GUARDIAN’s rights in copyrights, trademarks, or trade secrets or other proprietary rights in the Products.

12.

Trademarks 

Except for purposes of identification of Products, no right, title, interest, or license in or to any trademark or service mark of GUARDIAN is granted to EGC under this Agreement. EGC may on its business cards, stationery and marketing materials state that EGC is an authorized agent of GUARDIAN for the licensing of the Products.

13.

Status of EGC’s Personnel  

The parties to this Agreement are and shall remain independent contractors, and nothing herein shall be construed to create a partnership, or joint venture, between GUARDIAN and EGC. EGC shall be responsible for the wages, hours, and conditions of employment of EGC’s personnel during the term of and under this Agreement. Nothing herein shall be construed as implying that employees of EGC are employees of GUARDIAN.



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14.

Notices  

All notices, demands, or consents required or permitted under this Agreement shall be in writing and shall be delivered personally or sent by certified or registered mail to the appropriate party at the address set forth below, or at such other address as shall be given by either party to the other in writing:

 

Guardian Technologies International, Inc.

EGC INFORMATICS

516 Herndon Parkway, Suite A

1925 Brickell Ave. Suite D-1510

Herndon, Virginia  20170

Miami, Florida 33129

Attn: Bill Donovan

Attn: Angel Lorie

         President & Chief Operating Officer

         President & Chief Operating Officer

(703) 464-5495

(786) 306-8740

15.

Choice of Law  

This Agreement shall be deemed to be made in the Commonwealth of Virginia and in all respects shall be interpreted, construed, and governed by and in accordance with the laws of the Commonwealth of Virginia.

16.

Waiver of Rights  

The waiver by either party of any term or provision of this Agreement shall not be deemed to constitute a continuing waiver thereof nor of any further or additional rights such party may hold under this Agreement.

17.

No Assignment; Enforceability  

This Agreement is personal to EGC and is not assignable without the prior written consent of GUARDIAN. Any attempt to assign, transfer, or subcontract any of the rights, duties, or obligations of this Agreement without such consent is void.

18.

Dispute Resolution

18.1.

In the event that any dispute arises between GUARDIAN and EGC in connection with this Agreement, the representatives of each party responsible for the subject matter of such dispute shall use good faith efforts to resolve such dispute promptly. In the event that such dispute cannot be resolved by the parties’ representatives, the matter shall be submitted to the parties’ respective Chief Executive Officers (“CEOs”) for resolution. In the event that the CEOs cannot reach resolution of the issue (an “Unresolved Dispute”), then the matter shall be settled by binding arbitration in accordance with the provisions of Section 18.2 hereof.

18.2.

Any Unresolved Dispute, after the completion of the steps set forth above, shall be settled at the election of either party, by final and binding independent arbitration. All arbitrations pursuant to this Agreement shall be conducted before the American Arbitration Association (“AAA”) in Reston, Virginia, U.S.A., and shall be carried out in accordance with the Commercial Arbitration Rules of the AAA then in effect (the “Rules”) and the provisions of this Agreement.



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GUARDIAN and EGC shall each select one arbitrator and a third arbitrator will be selected unanimously by the arbitrators selected by GUARDIAN and EGC. If the two arbitrators selected by GUARDIAN and EGC are unable to select the third arbitrator within ten (10) days of the appointment of the two arbitrators, the parties consent to the selection of the third arbitrator by the AAA administrator. The award of the arbitrators may be enforced by any court having jurisdiction over the parties.

19.

Export Restrictions

GUARDIAN and EGC each hereby agrees to comply with all export laws and restrictions and regulations of the Department of Commerce or other United States agency or authority, and not to knowingly export, or allow the export or re-export of any Product, or any derivatives thereof, in violation of any such restrictions, laws or regulations, or, without all required licenses and authorizations to any country specified in the then current Supplement No. 1 to Section 770 of the U.S. Export Administration Regulations (or any successor supplement or regulations).

20.

General

20.1.

In the event that any provision of this Agreement shall be rendered invalid or otherwise unenforceable by any competent judicial or government authority, such invalidity or unenforceability shall not affect the validity or enforceability of any other provision of this Agreement and the invalid provision shall be deemed amended to the fullest extent allowable by applicable law to effect the purposes of said provision.

20.2.

GUARDIAN and EGC shall each be excused for any failure or delay in performing any of their respective obligations under this Agreement, if such delay or failure is caused by any act of God, any accident, explosion, fire, storm, riot, embargo, war, any failure or delay of transportation, shortage of or inability to obtain supplies, equipment, fuel or labor or any other circumstance or event beyond the reasonable control of the party relying upon such circumstance or event.

20.3.

The parties agree that this Agreement is the complete and exclusive statement thereof between the parties and that it supersedes and merges all prior proposals and understandings and all other agreements, whether oral or written, between the parties relating to the subject matter hereof. This Agreement may not be modified or altered except by a written instrument duly executed by the parties hereto.

 



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IN WITNESS WHEREOF , the parties have caused this Agreement to be executed as set forth below.

 

Guardian Technologies International, Inc.

 

EGC Informatics, Inc.


/s/ William J. Donovan

 


/s/ Angel Lorie, Jr.

William J. Donovan

 

Angel Lorie, Jr.

President & Chief Operating Officer

 

President & Chief Operating Officer

Date:  11/2/07

 

Date:  11/1/07

 

 

 



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Guardian Technologies International, Inc.

Proprietary Software License and Hardware Lease Agreement

Confidential and Proprietary



EXHIBIT A


Guardian Technologies automatic threat identification and alert system, PinPoint™ is incorporated into an intelligent image informatics engine ( 3i ) resident on a standard Pentium 4 based microprocessor. The PinPoint™ 3i system can be configured with various options and ordered under the commercial terms of a Perpetual License, Rental or Transactional based terms.



1.

Perpetual License:  

A “Perpetual License” is granted to an end user organization pursuant to an end user license agreement.  The end user shall pay Guardian the following amount(s) with respect to Products delivered under a Perpetual License.


Product Description

License Fee per Scanning Device

 

1-99 Licenses

100-499 Licenses

500+ Licenses

PinPoint 3i Engine

 

 

 

PinPoint Module Metal

 

 

 

PinPoint Module Explosives

 

 

 



Annual fees for Support Services

Shall be in addition to the foregoing Perpetual License fees.  Each end user of a Perpetual License shall pay an annual fee for Support Services of 20% of the then-applicable price for the number of Perpetual Licenses held by such license holder beginning in year two and for every year after the Perpetual License is in use.



2.

Rental License:  

A “Rental License” is a license granted to an end user organization pursuant to an end user license agreement under which the end user pays a monthly license fee and the license expires at the end of a three-year license term.  The end user organization shall pay Guardian the following amount(s) with respect to Products delivered to an end user under a Rental License:







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Proprietary Software License and Hardware Lease Agreement

Confidential and Proprietary




Product Description

Monthly Rental per Scanning Device For Three Years

 

1-99 Licenses

100-499 Licenses

500+ Licenses

PinPoint 3i Engine

 

 

 

PinPoint Module Metal

 

 

 

PinPoint Module  Explosives

 

 

 


Guardian and the end user organization may agree to extend the term of the Rental License for successive additional periods of one (1) year each after the expiration of the initial three (3) year period.


Guardian has the right, upon notice, to increase the prices set forth above for Rental Licenses no more than once in any calendar year by a percentage equal to the percentage change during the preceding twelve (12) month period in the Consumer Price Index for All Urban Consumers (CPI-U) for the U.S. City Average for All Items compiled by the U.S. Bureau of Labor Statistics (or a successor country index thereto).


The Prices set forth above include Annual Support Services during the term of the Rental License.  



3.

Transactional License:

A “Transactional License” is a license granted to an end user organization pursuant to an end user license agreement under which the end user pays a per passenger fee and the license expires at the end of a three-year license term.  The end user organization shall pay Guardian the monthly total fees based upon the following per passenger fee with respect to Products delivered to an end user under the Transactional License:




Product Description

Transaction Fee Per Passenger for a Term of Three Years

PinPoint 3i Engine

 

·

PinPoint Module Metal

 

·

PinPoint Module  Explosive

 


The Prices set forth above include Annual Support Services during the term of the Rental License.  



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Proprietary Software License and Hardware Lease Agreement

Confidential and Proprietary



The end user organization may also elect to increase the fee to cover administrative expenses.




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Guardian Technologies International, Inc.

Proprietary Software License and Hardware Lease Agreement

Confidential and Proprietary


EXHIBIT B


PROPRIETARY SOFTWARE LICENSE AND HAR


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