Partner Contribution License Agreement

This Partner Contribution License Agreement (the “Agreement”) is entered into as of [Effective Date] (the “Effective Date”) between FractalWeb, LLC, a Texas limited liability company, with its principal place of business at [address] (“Fractal”), and [Partner legal name], [a ___ corporation], with its principal place of business at [address] (“Partner”). Fractal and Partner are each a “Party” and together the “Parties”.

Background

Fractal develops market segment applications on its Fractal Computing framework and makes them available to customers as a service, directly and through channel partners. Partner owns a capability that the Parties wish to include in one such application. Partner is willing to license that capability to Fractal for that application, in return for payments made as the application’s revenue is collected, on the terms below.

1. Definitions

1.1 “Partner Contribution” means the software, data, models, algorithms, rules, content, documentation and other materials described in Schedule A, in the form Partner delivers them, together with all Updates.

1.2 “Licensed Application” means the Fractal application identified in Schedule A, including its later versions, releases and configurations for the market segment named there.

1.3 “Fractal Framework” means Fractal’s Fractal Computing software stack and related tools, libraries and services, as Fractal enhances them from time to time, excluding the Partner Contribution.

1.4 “Customer” means a person or entity that subscribes to the Licensed Application, whether directly from Fractal or through a Channel Partner.

1.5 “Channel Partner” means a third party authorized by Fractal to refer, sell, resell, distribute, integrate or incorporate the Licensed Application.

1.6 “Net Revenue” means the amounts Fractal actually receives for subscriptions to the Licensed Application, less (a) taxes, duties and similar charges collected from Customers; (b) refunds, credits and chargebacks; and (c) the portion of any bundled fee attributable to other products or services, allocated in good faith in proportion to their list prices. Where a Channel Partner bills the Customer, Net Revenue is the amount Fractal receives from that Channel Partner.

1.7 “Updates” means corrections, enhancements and new versions of the Partner Contribution that Partner makes generally available or delivers under Schedule B.

1.8 “Integration Work” means the code, configuration and adaptations Fractal creates to incorporate the Partner Contribution into the Licensed Application, excluding the Partner Contribution itself.

2. License

2.1 Grant. Subject to this Agreement, Partner grants Fractal a [non-exclusive], [worldwide] license during the Term to use, reproduce, modify, adapt, integrate, host, operate, support and make the Partner Contribution available solely as part of the Licensed Application, delivered as a service to Customers, directly and through Channel Partners.

2.2 Sublicensing. Fractal may sublicense the rights in Section 2.1 (a) to Customers, solely to use the Licensed Application; (b) to Channel Partners, solely as needed to perform their channel roles for the Licensed Application, including an OEM Channel Partner’s incorporation of the Licensed Application into its own offering; and (c) to Fractal’s contractors and hosting providers, solely to perform services for Fractal. Fractal is responsible for its sublicensees’ compliance with this Agreement.

2.3 Limited to the Licensed Application. The license is specific to the Licensed Application. Fractal will not use the Partner Contribution, or any part of it, in any other application, product or service, or make it available separately from the Licensed Application, without Partner’s prior written permission. Permission to use the Partner Contribution in another application will be given, if at all, by a new or amended Schedule A signed by both Parties, with its own terms.

2.4 Restrictions. Except as this Agreement permits, Fractal will not sell, lease or distribute the Partner Contribution on its own, will not remove Partner’s proprietary notices from it, and will not reverse engineer any part of it delivered only in object code, except to the extent applicable law expressly allows.

2.5 Reserved rights. All rights not expressly granted are reserved. Except as Schedule A states an exclusivity, Partner may license the Partner Contribution to others.

3. Ownership

3.1 Partner Contribution. Partner retains all right, title and interest in the Partner Contribution, including any modifications of it that Partner makes.

3.2 Fractal Framework and Licensed Application. Fractal retains all right, title and interest in the Fractal Framework, the Licensed Application (excluding the Partner Contribution) and the Integration Work. Nothing in this Agreement grants Partner any right in the Fractal Framework.

3.3 Modifications by Fractal. Modifications of the Partner Contribution itself that Fractal makes under Section 2.1 are owned by Partner and licensed to Fractal under this Agreement. To the extent Fractal acquires any right in them, it assigns that right to Partner.

3.4 Feedback. Either Party may use suggestions and feedback the other provides about its products, without obligation, provided it does not disclose the other Party’s Confidential Information.

4. Delivery, support and Updates

4.1 Partner will deliver the Partner Contribution and its documentation as described in Schedule A, and will provide the support, maintenance and Updates described in Schedule B.

4.2 Partner will tell Fractal in writing, before delivery, of any third-party or open source software included in the Partner Contribution and its license terms. Partner will not include any component whose license would require the Fractal Framework or the Licensed Application to be disclosed, licensed or distributed in source code form.

4.3 The Parties will cooperate in good faith on the integration, testing and release of the Partner Contribution within the Licensed Application, as described in Schedule A.

5. Payment

5.1 License fee. Fractal will pay Partner the percentage of Net Revenue stated in Schedule A (the “License Fee”). No other fee is payable for the license, unless Schedule A says otherwise.

5.2 Paid as revenue is collected. The License Fee accrues only when, and to the extent that, Fractal actually receives Net Revenue. Within 30 days after the end of each [calendar quarter], Fractal will pay the License Fee on the Net Revenue it received in that period, with a statement showing, for the Licensed Application, the Net Revenue received and the License Fee calculated. No License Fee is payable on amounts invoiced but not collected. If Net Revenue on which a License Fee was paid is later refunded or credited, Fractal may deduct the corresponding License Fee from later payments.

5.3 Channel compensation. If Partner also acts as a Channel Partner for the Licensed Application, it is compensated for those roles under a separate channel partner agreement. That compensation is in addition to, and does not reduce, the License Fee.

5.4 Taxes. Each Party is responsible for its own taxes on income. Fractal may withhold taxes required by law from payments, and will provide receipts for amounts withheld.

5.5 Records and audit. Fractal will keep accurate records of Net Revenue for the Licensed Application for at least three years after the period they relate to. Once in any twelve-month period, on 30 days’ written notice, Partner may have an independent accountant, bound by confidentiality, review those records during normal business hours to verify the License Fee. If the review shows an underpayment, Fractal will pay it promptly; if the underpayment exceeds five percent for the period reviewed, Fractal will also pay the reasonable cost of the review.

6. Customer data

6.1 Customer data processed by the Licensed Application is not part of the Partner Contribution, and Partner obtains no right in it. Partner will have no access to Customer data except as Schedule B specifically provides for support, and then only under the confidentiality, security and data protection terms the Parties agree for that purpose.

6.2 Where the Licensed Application serves a regulated market segment (for example healthcare or government), each Party will comply with the laws that apply to it in that segment, and the Parties will sign any further agreement those laws require (for example a business associate agreement) before Partner receives regulated data.

7. Confidentiality

Each Party will protect the other’s Confidential Information under the Mutual Non-Disclosure Agreement between the Parties dated [date], which is incorporated in this Agreement and continues to apply for the Term and afterward as it provides. The Partner Contribution in source code form, the Fractal Framework, Net Revenue statements and the terms of this Agreement are Confidential Information.

8. Warranties

8.1 Mutual. Each Party warrants that it has the authority to enter into and perform this Agreement.

8.2 Partner. Partner warrants that: (a) it owns or has the right to license the Partner Contribution as this Agreement provides; (b) to its knowledge, the Partner Contribution, as delivered by Partner, does not infringe or misappropriate any third party’s intellectual property rights; (c) the Partner Contribution will perform substantially as described in its documentation; and (d) it will use industry-standard measures to keep the Partner Contribution free of viruses, malicious code and undisclosed means of disabling it.

8.3 Disclaimer. Except as expressly stated in this Agreement, neither Party makes any warranty, express or implied, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement.

9. Indemnification

9.1 By Partner. Partner will defend Fractal, its affiliates and their sublicensees under Section 2.2 against any third-party claim that the Partner Contribution, as delivered by Partner and used in accordance with this Agreement, infringes or misappropriates that third party’s intellectual property rights, and will pay the damages and costs finally awarded or agreed in settlement. If such a claim is made or likely, Partner may, at its option and expense, obtain the right for Fractal to continue using the Partner Contribution, modify it to be non-infringing without material loss of function, or, if neither is reasonably available, end the license for the affected part on written notice.

9.2 By Fractal. Fractal will defend Partner against any third-party claim that the Fractal Framework or the Licensed Application, excluding the Partner Contribution, infringes or misappropriates that third party’s intellectual property rights, and will pay the damages and costs finally awarded or agreed in settlement.

9.3 Exclusions and procedure. Neither Party is obliged to indemnify for claims arising from the other Party’s modifications or combinations not provided or authorized by the indemnifying Party, or from use in breach of this Agreement. The indemnified Party must give prompt written notice of the claim, allow the indemnifying Party to control its defense and settlement (no settlement may impose an obligation on the indemnified Party without its consent), and reasonably cooperate at the indemnifying Party’s expense.

10. Limitation of liability

10.1 Neither Party is liable to the other for any indirect, incidental, special, consequential or punitive damages, or for lost profits or revenue, however caused, even if advised of their possibility.

10.2 Each Party’s total liability arising from this Agreement is limited to the License Fees paid or payable in the twelve months before the event giving rise to the liability.

10.3 Sections 10.1 and 10.2 do not apply to a Party’s indemnification obligations, its breach of Section 7 (Confidentiality), its infringement or misappropriation of the other Party’s intellectual property, or Fractal’s obligation to pay License Fees due.

11. Term and termination

11.1 Term. This Agreement begins on the Effective Date and continues for the initial term stated in Schedule A. It then renews automatically for successive one-year terms unless either Party gives written notice of non-renewal at least 90 days before the end of the then-current term (together, the “Term”).

11.2 Termination for breach. Either Party may terminate this Agreement by written notice if the other Party materially breaches it and does not cure the breach within 30 days after receiving written notice describing it.

11.3 Termination for insolvency. Either Party may terminate this Agreement by written notice if the other Party becomes insolvent, makes a general assignment for the benefit of creditors, or becomes subject to bankruptcy or similar proceedings that are not dismissed within 60 days.

11.4 Customer continuity. On expiry or termination (other than Partner’s termination for Fractal’s uncured breach of Section 2.3), the license continues, for each Customer subscribed at that date, until the end of that Customer’s then-current subscription term, not to exceed [twenty-four (24)] months, so that Customers are not disrupted. Fractal will continue to pay License Fees on Net Revenue received during that period.

11.5 Effect. Subject to Section 11.4, on expiry or termination Fractal will stop using the Partner Contribution and, on request, return or destroy Partner’s copies of it. Accrued payment obligations, and Sections 3, 5 (for Net Revenue received before or under Section 11.4), 7, 8.3, 9, 10, 11.4, 11.5 and 12, survive.

12. General

12.1 Governing law and venue. This Agreement is governed by the laws of the State of Texas, without regard to its conflict of laws rules. The state and federal courts located in Travis County, Texas have exclusive jurisdiction over any dispute arising from it, except that either Party may seek injunctive relief in any court of competent jurisdiction.

12.2 Assignment. Neither Party may assign this Agreement without the other’s prior written consent, except to a successor to all or substantially all of its business or assets to which this Agreement relates, provided the successor agrees in writing to be bound by it.

12.3 Publicity. Neither Party will issue a press release about this Agreement without the other’s prior written approval. Fractal may identify Partner as a contributor to the Licensed Application, and each Party may use the other’s name and logo for that purpose in accordance with the other’s reasonable trademark guidelines.

12.4 Relationship. The Parties are independent contractors. Nothing in this Agreement creates a partnership, joint venture, agency or employment relationship, and neither Party may bind the other.

12.5 Force majeure. Neither Party is liable for delay or failure to perform (other than payment obligations) caused by events beyond its reasonable control.

12.6 Export. Each Party will comply with all applicable export control and sanctions laws in performing this Agreement.

12.7 Notices. Notices must be in writing and sent to the addresses above (or as a Party later designates in writing), by hand, by a recognized courier, or by email with confirmation of receipt.

12.8 Entire agreement; order of precedence. This Agreement, its Schedules and the Mutual Non-Disclosure Agreement referred to in Section 7 are the entire agreement of the Parties on their subject and supersede all prior understandings on it. If they conflict, the body of this Agreement prevails over a Schedule, unless the Schedule expressly states that it overrides a named Section. This Agreement may be amended or waived only in a writing signed by both Parties.

12.9 Severability; waiver. If any provision is held unenforceable, it will be enforced to the maximum extent permitted and the remaining provisions remain in effect. A failure or delay in enforcing any provision is not a waiver of it.

12.10 Counterparts and electronic signature. This Agreement may be signed in counterparts and by electronic signature, each of which is an original and all of which together are one agreement.

Signed by the Parties’ authorized representatives as of the Effective Date.

Schedule A: Licensed Application and commercial terms

Schedule B: Support, maintenance and Updates