Exhibit 10.4
FORM
SOFTWARE LICENSE AGREEMENT
This Software License Agreement
(Agreement) is entered into this
day of
, 2005 between Nationwide Services Company, LLC, an Ohio limited
liability company (Nationwide), with offices at One Nationwide
Plaza, Columbus, Ohio 43215 (Licensor), and Nationwide Financial
Services, Inc. and its Subsidiaries, an Ohio corporation, with
offices at One Nationwide Plaza, Columbus, Ohio 43215
(Licensee).
WHEREAS, Licensor owns the DCDirect
software core platform (Software); and
WHEREAS, Licensee is desirous of
Licensor developing Software for Licensee’s exclusive use; to
utilize such Software, and to make customizations, updates and/or
corrections; and
WHEREAS, for the good and valuable
consideration, the receipt of which is hereby acknowledged,
Licensor is willing to license the Software to Licensee;
and
WHEREAS, Licensee is willing to
accept the Software license under the conditions set forth set
forth above.
NOW, THEREFORE the parties agree as
follows:
1. LICENSE GRANTED
Subject to the terms and conditions
of this Agreement and in consideration of Licensee’s
obligation to pay monetary fees as outlined in Schedule A, such
fees which may be adjusted from time to time by mutual written
consent of the parties, Licensor hereby grants, and Licensee hereby
accepts, a perpetual, nontransferable license to use the Software
in object code form within the United States. Except for a current
license with Nationwide Global Holdings, Inc., Licensor agrees this
agreement would be exclusive to Licensee and agrees not to enter
into any future Software license obligations or licenses with any
third-parties without the prior written consent of
Licensee.
Licensor also grants permission to
Licensee to make and create customizations, updates or corrections
to the Software. The parties agree that Licensor shall continue to
own all right, title and interest in and to the Software and all
intellectual property rights embodied therein or related thereto
including, but not limited to, the source and object codes and any
customizations, updates and corrections to the Software. Except as
expressly provided herein, no intellectual property rights are
granted to Licensee by implication, estoppel, or
otherwise.
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Licensee will safeguard the Software
and its related materials with that degree of normal due care
commensurate with reasonable standards of industrial security for
the protection of trade secrets and proprietary information so that
no unauthorized use is made of them and no disclosure of any part
of their contents is made to anyone other than Licensee’s
employees, agents or consultants whose duties reasonably require
such disclosure, or as necessary in the ordinary course of
business. Licensee shall make all such persons fully aware of their
responsibility to fulfill the obligations of Licensee under this
Agreement.
2. SOFTWARE PROVIDED “AS
IS”
Licensor warrants that it has the
right to provide the Software to Licensee hereunder. Otherwise,
Licensor provides the Software to Licensee “as is.”
Licensor makes no warranties or representations that the Software
is free of errors or defects, or that it adequately performs the
functions it is intended to perform. Licensee shall test the
Software to insure its acceptability for Licensee’s purpose
prior to putting the Software in productive use.
Licensor is under no obligation to
update or correct defects or errors in the Software. If Licensor
does provide Licensee with updates or corrections, the terms and
conditions of this Agreement shall apply.
THE SOFTWARE IS PROVIDED
“AS IS” AND LICENSOR MAKES NO OTHER WARRANTIES WITH
RESPECT TO THE SOFTWARE, INCLUDING BUT NOT LIMITED TO THOSE OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
3. WARRANTIES OF LICENSEE
Related to customizations, updates and/or
corrections of Licensee to the Software, Licensee represents and
warrants that:
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(i)
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Licensee has all intellectual
property rights necessary to produce customizations, updates and/or
corrections to the Software;
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(ii)
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Licensee does not infringe the
intellectual property rights of any third party;
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(iii)
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Licensee will make any
customizations or enhancements to the Software under this Agreement
in accordance with industry standards and in a professional and
workman-like fashion;
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(iv)
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Following completion of any
customizations or enhancements to the Software, such will remain
free from material programming errors and defects in workmanship
and materials, and will substantially conform to the specifications
and any related documentation for ninety (90) days (“Warranty
Period”). If material programming errors are discovered
during the Warranty Period, Licensee shall promptly remedy such
errors at no additional expense to Licensor.
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4. PROPERTY RIGHTS AND RESTRICTIONS
ON USE
Licensee recognizes that the
Software, and customizations, updates or corrections, if any, are
the property of, and all rights thereto, are owned by Licensor.
Licensee also acknowledges that such are a trade secret of
Licensor, are valuable and confidential to Licensor, and that its
use and disclosure must be carefully and continuously
controlled.
Title to the Software, and
customizations, updates or corrections, if any, shall at all times
remain with Licensor.
Licensee shall keep the Software,
and customizations, updates and/or corrections, if any, free and
clear of any claims, liens and encumbrances attributable to the use
or possession of the Software by Licensee. Any act of Licensee,
whether voluntarily or involuntarily, purporting to create a claim
of encumbrance shall be void.
The Software is for the sole use of
Licensee and shall be used only for the purpose set forth in this
Agreement.
Licensee shall treat the Software,
and customizations, updates and/or corrections, if any, as
confidential and proprietary, and shall protect it in the same
manner that it protects the confidentiality of its own information.
While this Agreement is in effect, or while Licensee has custody
and possession of the Software, Licens
