This Sale of Technology Agreement (“Agreement”) is made and effective this _____________ (Date), by and between ________________________________ (“Seller”) and ___________________________________________________(“Buyer”).
Whereas, Seller has developed and owns all rights, including the copyright, to certain technology described as follows or attached by in Exhibit form: _________________________________________________________ (“Technology”).
And further, as Buyer wishes to purchase, and Seller wishes to sell, such Technology, the related goodwill and all other associated property rights, including all copyrights and all rights to enhanced, modified and updated versions and derivative works related thereto.
Therefore, in consideration of the premises and the mutual covenants contained in this Agreement, the parties agree as follows:
- Technology. Seller hereby sells, assigns, conveys and transfers to Buyer all of Seller’s right, title and interest in and to the following described technology on a nonexclusive basis:
The Technology shall include, but is not limited to:
(i) The Technology in all versions and all forms of expression thereof, including but not limited to source code, object code, flow charts, and block diagrams, and documentation, previous versions, notes, other information relating to the Technology; and all copyrights, trade secrets, patentable inventions, proprietary rights and intellectual property contained therein or connected therewith, including without limitation Seller’s copyright in the Technology;
(ii) All existing copies of the Technology in Seller’s possession or control, whether in source or object code form, and whether on magnetic storage media, paper or any other media; and
- Delivery. The Technology shall be delivered to Buyer promptly following execution of this Agreement. Seller shall from time to time, but without further consideration, execute and deliver such instruments or documents and take such other action as is reasonably necessary which Buyer may request in order to more effectively carry out this Agreement and to vest in Buyer the Technology and title thereto.
2. Purchase Price.
In consideration for the transfer of this nonexclusive Technology and the promises of Seller herein, Buyer shall pay to Seller, $ _________________ upon delivery of the Technology.
3. Representations and Warranties of Seller.
Seller represents, warrants and covenants as follows:
A. Title, Infringement. Seller has good and marketable title to the Technology, including the copyright to the Technology, and has all necessary rights to enter into this Agreement without violating any other agreement or commitment of any sort. Seller does not have any outstanding agreements or understandings, written or oral, concerning the Technology, except as identified in Section l.A.(iii) above. The Technology does not infringe or constitute a misappropriation of any trademark, patent, copyright, trade secret, proprietary right or similar property right. Seller agrees to defend, indemnify and hold Buyer, its subsidiaries, affiliates and licensees harmless against any action, suit, expense, claim, loss, or liability based on a claim that the Technology infringes or constitutes a misappropriation of any trademark, patent, copyright, trade secret, proprietary right or similar property right. Buyer shall give Seller prompt written notice of any such claim. Seller shall assume responsibility for defending any suit or proceeding brought against Buyer based on any claim that the Technology infringes or constitutes a misappropriation of any trademark, patent, copyright, trade secret, proprietary right or similar property right; provided, however, that Buyer shall give Seller prompt notice in writing of the assertion of any such claim and of the threat or institution of any such suit or proceeding, and all authority, information and assistance required for the defense of the same. Seller shall pay all damages and costs awarded against Buyer, but shall not be responsible for any cost, expense or compromise incurred without Seller’s consent.
B. No Liens. The Technology is not subject to any lien, encumbrance, mortgage or security interest of any kind. Seller’s conveyance of the nonexclusive Technology shall be free of any such interest, excepting only the interests of the third party licenses identified in Section
1.A. (iii) above, if any.
C. Authority Make this Agreement. This Agreement is a legal, valid and binding obligation of Seller. The execution and delivery of this Agreement by Seller and the performance of and compliance by Seller with the terms and conditions of this Agreement will not result in the imposition of any lien or other encumbrance on any of the Assets, and will not conflict with or result in a breach by Seller of any of the terms, conditions or provisions of any order, injunction, judgment, decree, statute, rule or regulation applicable to Seller, the Technology, or any note, indenture or other agreement, contract, license or instrument by which any of the Technology may be bound or affected. No consent or approval by any person or public authority is required to authorize or is required in connection with, the execution, delivery or performance of this Agreement by Seller.
D. No Default. There is no outstanding default by Seller or any third party license of the Technology of any material obligation in the licenses identified in Section I.A. (iii) above, if any.
4. No Brokers.
All negotiations relative to this Agreement have been carried on by Buyer directly with Seller, without the intervention of any person as the result of any act of Buyer or Seller, so far as known to either party, without the intervention of any such person, in such manner as to give rise to any valid claim against the parties hereto for brokerage commissions, finder’s fees, or other such payment.
5. Consents, Further Instruments and Cooperation.
Buyer and Seller shall each use their respective best efforts to obtain the consent or approval of each person or entity, if any, whose consent or approval shall be required in order to permit it to consummate the transactions contemplated hereby, and to execute and deliver such instruments and to take such other action as may be required to carry out the transaction contemplated by this Agreement. Seller shall execute, or cause its employees and agents to execute, any patent or copyright application or other similar document or instrument, following Buyer’s reasonable request.
6. Limitation of Liability.
OTHER THAN AS SET FORTH IN SECTION 3.A. OR UPON THE BREACH OF ANY WARRANTY, NEITHER BUYER NOR SELLER SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY PERFORMANCE HEREUNDER, EVEN IF SUCH PARTY HAS ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER BASED ON A THEORY OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE.
7. Buyer’s Use of the Nonexclusive Technology.
Buyer may not market, license and sell the Technology under names and trade names of its own choosing, but may develop updated and modified versions and derivative works of the Technology while still attributing authorship to Seller. Buyer shall own all nonexclusive rights and title, including copyrights, in and to updated and modified versions and derivative works of the Technology without requiring permission from Seller and without incurring payment obligations in addition to those provided herein.
8. Seller’s Use of the Assets & Buyer’s Responsibilities Thereto.
Seller retains all rights in the Technology and retains the right to use the Technology or any material relating to the Technology for any purpose, personal, commercial, or otherwise. Buyer furthermore shall maintain all information relating to the Technology or use of the Technology in confidence and shall not disclose any aspect of the Technology to any third party without the prior written consent of Seller. Buyer agrees not to participate in any activities relating to development, marketing or sale of Technology or other materials that would compete, directly or indirectly, with Buyer’s marketing or distribution of the Technology, to other potential customers.
Seller may not assign this Agreement or any obligation herein without the prior written consent of Buyer. Buyer shall not unreasonably withhold its consent to an assignment, however. This Agreement shall be binding upon and inure to the benefit of the parties named herein and their respective heirs, executors, personal representatives, successors and assigns.
10. Relationship of the Parties.
The relationship between Buyer and Seller under this Agreement is intended to be that of buyer and seller, and nothing in this Agreement is intended to be construed so as to suggest that the parties hereto are partners or joint venturers, or either party or its employees are the employee or agent of the other. Except as expressly set forth herein, neither Buyer nor Seller has any express nor implied right or authority under this Agreement to assume or create any obligations on behalf of or in the name of the other or to bind the other to any contract, agreement or undertaking with any third party.
Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by personal delivery or a recognized over night delivery service such as FedEx.
If to the Seller: _____________________________________________________.
If to the Buyer: ___________________________________________________.
12. No Waiver.
The waiver or failure of either party to exercise in any respect any right provided in this agreement shall not be deemed a waiver of any other right or remedy to which the party may be entitled.
13. Entirety of Agreement.
The terms and conditions set forth herein constitute the entire agreement between the parties and supersede any communications or previous agreements with respect to the subject matter of this Agreement. There are no written or oral understandings directly or indirectly related to this Agreement that are not set forth herein. No change can be made to this Agreement other than in writing and signed by both parties.
14. Governing Law.
This Agreement shall be construed and enforced according to the laws of the State of ____________________ and any dispute under this Agreement must be brought in this venue and no other.
15. Headings in this Agreement
The headings in this Agreement are for convenience only, confirm no rights or obligations in either party, and do not alter any terms of this Agreement.
If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
In Witness whereof, the parties have executed this Agreement as of the date first written above.
Technology Sale Agreement, Non-Exclusive
This review list is provided to help you to complete the Non-Exclusive Technology Sale Agreement and ensure that the necessary steps are taken to make it effective.
- The Sale of Technology Agreement is used to transfer nonexclusive ownership of a Technology program from the owner to a buyer for a sum of money. This is similar to an Asset Sale or Bulk Transfer Sale, except that the Seller can make the sale as often as they can do so and want to do so. You are encouraged to read the review list for that document, under the “Business Agreements” section for more information on the subject. After completing this transaction, the party selling the program retains all rights in the Technology. Make sure these terms are acceptable to you. If not, you can modify this agreement to an exclusive one and probably get more money for it from a single buyer. A nonexclusive agreement, however, often results in only slightly less money than an exclusive one, since most Buyers are not in the business of reselling technology but merely wish to have it under their possession and control for further development.
Examples of such transactions would be a retail point of sale and inventory program that a large retailer such as Home Depot would want to own outright, and get the benefit of not having to pay additional license fees as new stores roll out. The Seller would benefit by being able to resell the same program to other large customers. An exclusive license is generally sought when the buyer wants absolute control over the technology so as to include it in a proprietary program or programs it is using. An example of that is when a company such as ours, Simply Media, wishes to have the exclusive rights to certain materials we use in our CDs. This is a business decision for you to make, not a legal one.
- This Agreement is an important sales document for you and/or your corporation. You are well advised to seek legal review to be sure the legal and business aspects of the agreement work for your particular situation and venue.
- Print multiple copies of this agreement so both have at least one signed original copy each. An extra copy should be kept at your home or office with your other corporate papers, as well.
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