ALLIED BUS230 MODULE 3 HOMEWORK ASSIGNMENT

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PART I
Directions: Please review
the License Agreement below and answer the questions. Please apply APA format in text citing,
reference list, and double-space. Limit
your word count to 2,000 words. Please
visit the Academic Resource Center for help with APA format.
If applicable, include arguments from
each side. If a criminal case exists,
you would present arguments from the prosecutor and the defense attorney. If it is a civil case, then you would argue
as a plaintiff and defense lawyer. Be
sure that your answers respond to the questions. Do not restate the problem in your
answer. Mention the facts where relevant to your analysis. If you
are asked for a recommendation, be sure to include one, but do not fail to consider
counterarguments. If your answer depends
upon essential information not set forth in the question, state what that
information is and how it affects your answer.
If facts are missing in your argument, please state what facts would be
pertinent to each party’s case; also list any facts or information that could
potentially damage a party’s case.
Read the questions carefully and attempt
to answer each directly. Clear,
well-organized, and concise writing will be rewarded. If there are ambiguities in the questions,
discuss the ambiguity and how it impacts your answer. You may consult your text, lecture notes, or
outlines that you have personally prepared.
License Agreement:
License Agreement
This
License Agreement is entered into between ABC, LLC, a California limited
liability company (“Company”), and XYZ, Inc. a Nevada corporation (“Customer”)
(collectively, the “Parties,” or individually, a “Party”). This License Agreement is effective as of the
date of last signature (“Effective Date”).

For
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Parties agree as follows:

1. Definitions

Unless the context of a provision
herein otherwise requires, words importing the singular shall include the
plural and vice-versa. The words
“include,” “includes” or “including” shall mean include without limitation,
includes without limitation or including without limitation. As used in this Agreement (as defined below),
the following terms have particular meanings as defined below.

“Agreement” means this License Agreement, together
with all related exhibits, orders and amendments.

“Confidential Information” means (i) information disclosed by a
Party relating to the Services (as defined below), product development strategy
and activity, marketing strategy, corporate assessments and strategic plans,
either present or future; pricing, financial and statistical information,
accounting information, identity of and information regarding the Parties to
this Agreement, suppliers, employees, investors, or customers; software, source
code, systems, processes, designs, schematics, methods, techniques, algorithms,
formulae, inventions, discoveries, policies, guidelines, procedures, practices,
disputes or litigation; (ii) other confidential, proprietary or trade secret information
disclosed by that Party that is identified in writing as such at the time of
its disclosure; (iii) other confidential, proprietary or trade secret
information disclosed by that Party; (iv) information relating to that Party’s
employees, contractors or customers, such as social security number
verification which, if released, would cause an unlawful or actionable invasion
of privacy; (v) the terms of this Agreement; and (vi) any compilation or
summary of information or data that is itself confidential.

“Permitted Applications” means the Customer shall use the
Services solely for the Customer’s own internal business purposes of analyzing
their position in the market.

“Services” means the software application known as
“The Best Software” as provided by Company to Customer.

2. Agreement Structure
This Agreement
contains terms and conditions applicable to the Services.
3. License

3.1 License Grant. Subject to the terms and conditions of this
Agreement, Company grants to Customer a non-exclusive, non-transferable,
limited license to use the Services solely for the Permitted Applications. There are no implied licenses under this
Agreement, and any rights not expressly granted to Customer are reserved by
Company for its own use and benefit.

3.2 License
Restrictions. Customer represents
and warrants to Company that it shall comply, and ensure that its Permitted
Users comply, with the following:

(a) Customer shall not use the Services for purposes other than the
Permitted Applications.
(b) Customer shall not share the Services with any third party.

(c) Customer shall not comingle, process or
combine any portion of the Services or permit any portion of the Services to be
comingled, processed or combined with other data or software from any other
source.

(d) Customer shall not use the Services in any way
that: (i) infringes Company’s or any third party’s copyright, patent,
trademark, trade secret or other intellectual property or proprietary rights or
rights of publicity or privacy; (ii) violates any law, statute, ordinance or
regulation; or (iii) is defamatory, trade libelous, unlawfully threatening or
unlawfully harassing.

(e) Customer shall: (i) obtain any necessary
licenses, certificates, permits, approvals or other authorizations required by
federal, state or local statute, law or regulation applicable to Customer’s use
of the Services; and (ii) limit use of the Services to its employees who have
been appropriately trained. Customer
shall maintain the confidentiality of any usernames and passwords issued by
Company and Customer shall not permit usernames or passwords to be shared
amongst its employees. Company may prohibit concurrent sessions with the same
username and password.

(f) Customer shall not disassemble, decompile,
manipulate or reverse engineer Company’s Confidential Information or any
portion of the Services.
4. Delivery of
Services

Company
shall deliver the Services via Company’s secure, password-protected Internet
site: BestSoftware.com. Company may discontinue, upgrade or change
the production, support, delivery and maintenance of any Services if Company
develops an upgraded version or otherwise can no longer provide such
Services.

5. Fees

5.1 Fees. Customer shall pay Company $5,000.00 per
month for access to the Services (“Monthly Fee”). Customer shall pay for all charges relating
to the use of usernames and passwords whether or not authorized by Customer. At
the end of each Company billing cycle, Company may invoice Customer for all
Fees incurred by Customer during such billing cycle.

5.2 Taxes. Fees are exclusive of sales, use, ad valorem,
personal property, and other taxes, which are the responsibility of
Customer. Company shall charge Customer
applicable sales tax. Customer shall
file all other taxes. If applicable,
Customer shall provide Company with a resale or exemption certificate in order
to notify Company how to appropriately invoice Customer for taxes.

5.3 Late Fees. If full payment
is not made within the period set forth in Section 5.1, Customer shall pay a
charge equal to 1½ percent of the balance due, not to exceed the maximum legal
limit permitted by law. If Customer
becomes 10 or more days past due and fails to pay all past due fees within 10
days of Company’s written notice of such delinquency, Company may suspend
access or delivery of any Services provided under this Agreement until all past
due charges and any related interest are paid, or terminate the Agreement; if Company
suspends access or delivery, Customer shall pay any minimum fees during any
period for which access or delivery is suspended. Company may enforce Customer’s obligation to
pay all fees through an attorney or collection agency, or Company may take legal
action. Customer shall pay all of
Company’s attorneys’ fees, agency fees, court costs and other collection costs,
including all post-judgment costs for legal services at trial and appellate
levels.

6. Reporting; Audits

6.1 Compliance
Audits. Company may audit Customer for the purpose of
ensuring Customer’s compliance with the terms and conditions of this Agreement,
upon five days prior written notice.
Company may choose the auditor in its sole discretion.

7. Term; Termination

7.1 Term
and Termination. The term of this
Agreement commences on the Effective Date and continues for a period of 12
months. Thereafter, the term of this
Agreement shall not renew unless mutually agreed upon by the parties in writing
30 days prior to the end of the then current term. This Agreement may not be terminated without
cause during their respective terms. If
either Party breaches any provision of this Agreement, the non-breaching Party
may, upon providing written notice of such breach, terminate this Agreement in
its entirety, if the breach is not cured within 30 days following such notice,
unless a shorter cure period is otherwise set forth in this Agreement.
7.2 Effects
of Termination. Upon termination of
this Agreement, all license rights granted by Company to Customer pursuant to
the Agreement terminate and Customer shall pay Company in full for all Services
accessed or delivered.

7.3 Return or Destruction of Materials.
Within 15 days of termination of this Agreement by either Party,
Customer shall: (i) return all Services and Company’s Confidential Information
(including all copies of the same) (the “Materials”) to Company at the address
set forth on the signature page of this Agreement or as specified by Company
and certify by an officer of Customer that Customer has returned all Materials;
or (ii) destroy all Materials and certify by an officer of Customer that such
Materials have been destroyed. If such
Materials are not returned or destroyed in accordance with the above, Customer
shall provide Company or its designee access to Customer’s premises for the
retrieval of all such Materials, and Customer shall pay the actual costs as
reasonably incurred by Company to retrieve such Materials. Customer shall continue paying Company fees
ordinarily and reasonably charged by Company for the Services after the
termination of this Agreement, until such time as Customer returns to Company
or destroys such Materials.

8. Confidentiality

8.1. Obligations. Neither Party shall use, disseminate,
reproduce or permit to be used, disseminated or reproduced, or in any way
disclose the other Party’s Confidential Information to any person or entity
except as required by law or as specifically permitted in this Agreement. Absent prior written consent of the other
Party, each Party shall disclose Confidential Information only to those of its
employees and independent contractors who have previously agreed to be bound by
the terms and conditions of this Agreement and its in-house and outside legal
counsel who need to know such information.
Each Party shall treat all Confidential Information disclosed to it in
connection with this Agreement as strictly confidential using commercially
reasonable measures at least equal to those used by such Party with respect to
its own Confidential Information.

8.2 Exceptions. The restrictions on use and disclosure of
Confidential Information set forth in Section 9.1 shall not apply to any
particular Confidential Information when and to the extent that the
Confidential Information: (i) is or becomes generally available to the public
through no fault of the receiving Party (or anyone acting on its behalf); (ii)
was previously rightfully known to the receiving Party free of any obligation
to keep it confidential; (iii) is subsequently disclosed to the receiving Party
by a third party who may rightfully transfer and disclose the information
without restriction and free of any obligation to keep it confidential; (iv) is
independently developed by the receiving Party or a third party without
reference or access to the disclosing Party’s Confidential Information; or (v)
is otherwise agreed upon by the Parties not to be subject to the restrictions
set forth in Section 9.1. The receiving
Party may disclose Confidential Information if required to do so as a matter of
law, regulation or court order, provided that: (i) the receiving Party shall
use all reasonable efforts to provide the disclosing Party with at least 10
days prior notice of such disclosure, (ii) the receiving Party shall disclose
only that portion of the Confidential Information that is legally required to
be furnished, and (iii) the receiving Party shall use reasonable efforts to
seek from the party to which the information must be disclosed confidential
treatment of the disclosed Confidential Information. Notwithstanding that portions of the Services
may be derived in whole or in part from publicly available sources, the
Services and any of Company’s databases used in deriving the Services are
proprietary, copyrighted and trade secrets of Company and, for the avoidance of
doubt, the restrictions on use and disclosure of the Services are not subject
to the exceptions contained in this Section 9.2.

9. Disclaimer; Injunction

9.1 Disclaimer. THE
SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES BASED ON COURSE OF DEALING OR
USAGE IN TRADE. company DOES NOT
REPRESENT OR WARRANT THAT THE SERVICES ARE COMPLETE OR FREE FROM ERROR OR WILL
BE AVAILABLE 24 HOURS PER DAY, SEVEN DAYS PER WEEK, AND DOES NOT ASSUME, AND
EXPRESSLY DISCLAIMS, ANY LIABILITY TO ANY PERSON OR ENTITY FOR LOSS OR DAMAGE
CAUSED BY ERRORS OR OMISSIONS IN THE SERVICES, WHETHER SUCH ERRORS OR OMISSIONS
RESULT FROM NEGLIGENCE, ACCIDENT, OR OTHER CAUSE. company MAKES
NO REPRESENTATIONS OR WARRANTIES ABOUT THE LEGALITY OR PROPRIETY OF THE USE OF
THE SERVICES IN ANY GEOGRAPHIC AREA.

9.2 Injunction. Customer acknowledges that the Services are
valuable commercial products, the development of which involved the expenditure
of substantial time and money. Any
violation of the Permitted Applications is a material breach of the Agreement
and entitles Company to injunctive
relief. If Customer infringe or
misappropriate any of Company’s
intellectual proprietary rights or violate the Permitted Applications, Company may not have adequate remedy in
money or damages. Customer shall not
oppose any filing for injunctive relief by Company
as Customer deems Company has met
its obligation of demonstrating that it prevails on the merits, irreparable
harm to Company exists and no other
remedy is practical. Granting of
injunctive relief shall not limit Company’s
right to seek further remedies at law or in equity and in connection with the
issuance of an injunction, Company
shall not be required to post a bond or provide an undertaking.

10. General Provisions

10.1 Agency. The Parties acknowledge that this is a
business relationship based on the express provisions of this Agreement and no
partnership, joint venture, agency, fiduciary or employment relationship is
intended or created by this Agreement.
Neither Party is the legal representative or agent of, nor has the power
or right to obligate, direct or supervise the daily affairs of the other Party,
and neither Party shall act or represent or hold itself out as such. The rights, duties, obligations and
liabilities of the Parties shall be several and not joint, each party being
individually responsible only for its obligations as set forth in this
Agreement.

10.2 Severability. If any of the provisions of this Agreement
becomes invalid, illegal or unenforceable in any respect under any law, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired.

10.3 Waiver. Any waiver is only valid to the extent
expressly set forth in writing. No
waiver by either Party of any breach by the other Party of any of the
provisions of this Agreement is deemed a waiver of any preceding or succeeding
breach of the same or any other provision.

10.4 Survival. The following sections survive termination of
this Agreement and continue in full effect until fully satisfied: 3.2 (License
Restrictions); 5 (Fees); 6 (Reporting; Audits); 7.2 (Effects of Termination);
7.3 (Return or Destruction of Materials); 8 (Confidentiality); 9.1
(Disclaimer); and 10 (General Provisions).

10.5 Execution. This Agreement or any SOW may be executed in
any number of counterparts, each of which is deemed an original, and all taken
together constitute one and the same instrument. If this Agreement is executed in
counterparts, no signatory is bound until all Parties have duly executed this
Agreement and all Parties have received a fully executed Agreement. Any signature transmitted by facsimile or
e-mail (in .pdf, .tif, .jpeg, or a similar format), or a photocopy of such
transmission, is deemed to constitute the original signature of such Party to
this Agreement. The individuals signing below represent that they are
authorized to do so by and on behalf of the Party for whom they are signing.

10.6 Governing
Law; Forum; Jury Trial; Attorneys’ Fees.
The interpretation and construction of this Agreement is governed by the
laws of the State of California. The
Parties shall submit to the exclusive jurisdiction of, and waive any venue objections
against, the courts of Southern California in any litigation arising out of
this Agreement. Each Party hereby also
waives any defenses it may have before such courts based on a lack of personal
jurisdiction or inconvenient forum. Each
of the Parties waives the right to a jury trial. The prevailing Party shall be awarded its
reasonable attorneys’ fees and costs in any lawsuit or claim arising out of or
related to this Agreement.

10.7 Uncontrollable
Acts. Either Party shall be excused
from performance of its obligations, except for Customer’s obligation to pay
the Fees for Services provided, and shall not be liable for any delay caused by
the occurrence of contingencies beyond its control including, but not limited
to: act of terrorism, war (declared or not declared), sabotage, insurrection,
riot, act of civil disobedience, act of any government, accident, fire,
explosion, flood, storm, earthquake, volcanic eruption, nuclear event, any act
of God, labor disputes, failure or delay of shippers, or unavailability of
components or equipment.

10.8 Assignment. Customer shall not assign or transfer this
Agreement or any rights or obligations under this Agreement. A change in control constitutes an assignment
under this Agreement. For purposes of
this Agreement, a “Change in Control” means: (a) any transaction in which
Customer or a Permitted Affiliate merges or consolidates with or into another
entity; (b) any transaction or series of transactions in which Customer or a
Permitted Affiliate sells or otherwise transfers more than 20 percent of its
capital stock (without regard to class or voting rights) or other securities or
ownership interests; or (c) the sale, transfer or other disposition of all or
substantially all of Customer’s or a Permitted Affiliate’s assets or the
complete liquidation or dissolution of Customer or a Permitted Affiliate. Any
unauthorized assignment or transfer shall be void and constitutes ground for
immediate termination of this Agreement by Company. This Agreement binds and inures to the
benefit of the Parties and their respective permitted successors and permitted
assigns.

10.9 Notices. Any notice or other communication
required or permitted under this Agreement is sufficiently given if delivered
in person or sent by one of the following methods: (a) facsimile or (b) commercially recognized
overnight service with tracking capabilities.
Notices to the Parties shall be sent to the address or facsimile located
in the signatory lines. Any such notice
or communication is deemed properly delivered as of (i) the date personally
delivered, (ii) sent by facsimile, or (iii) one business day after it is sent
by commercially recognized overnight service.
A Party may change its address by written notice given to the other
Party before the effective date of such change.

10.10 Headings;
Joint Drafters. Headings at the
beginning of each section and subsection are solely for convenience and shall
have no effect upon construction or interpretation of this Agreement. The Parties acknowledge that this Agreement
was prepared by both Parties jointly.

10.11 Entire
Agreement. With respect to the
Services provided under this Agreement, this Agreement constitutes the entire
agreement between the Parties and supersedes all prior and contemporaneous
agreements and understandings of the Parties.
No modifications to this Agreement are effective unless in writing and
signed by both Parties.

THE PARTIES HAVE READ, UNDERSTOOD
AND AGREED TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.

XYZ, INC.
(“CUSTOMER”)

By: ______________________________________
Authorized Signature

Name: Monica Justice

Title: Chief Financial Officer

Date: ____________________________

Address: 876
Lucky Drive
This City, California 90002

Facsimile: (987) 555-3456

ABC, LLC
(“COMPANY”)

By: _____________________________________
Authorized Signature

Name: Jeffrey Thomas

Title: Chief Executive Officer

Date: ____________________________

Address: 123 North Main Street
My City, California 90001

Facsimile: (919) 555-1030

Submit your responses to
the following:

1. What are the four requirements of a valid
contract? Explain each requirement and
why it is important.

2. Who are the parties to this License
Agreement? Is this a unilateral or
bilateral contract? Is this a formal or
informal contract? Is this an express,
implied or quasi contract? Is this an
executory or an executed contract?
Thoroughly explain your reasoning behind each answer.

3. What is the difference between an offeror and
offeree? Who is the offeror in this
License Agreement and who is the offeree?

4. What are the three elements to an effective
offer? How does an offer end?

5. What is acceptance of a contract? What are the requirements of a valid
acceptance? How would you be able to
determine if this License Agreement has been accepted?

6. What language should be included with this
License Agreement if one Party intends to sign the License Agreement and fax it
back to the other Party? Is this
language included in the License Agreement?
If so, provide the section number and a summary of the language.

7. What is consideration? What type consideration is provided for under
this License Agreement (i.e. a benefit or a detriment)? What are the Parties to the License Agreement
promising to each other? What is the
essence of their bargain? Do you think
the consideration is adequate? Why or
why not?

6. For purposes of this question only, assume
Monica Justice is only 12 years old. She
is a very ambitious 12 years old, however, and has formed her own corporation –
XYZ, Inc. Is her acceptance of this
License Agreement valid? Why or why
not? What if Monica told Jeffery Thomas
of ABC, LLC that she was 21? Is her
acceptance valid? Would a court allow
Monica to disaffirm the License Agreement?

7. For purposes of this question only, assume
Jeffrey Thomas was determined to be incompetent 1 month after signing this
License Agreement. What would a court of
law hold as to the validity of this License Agreement?

8. For purposes of this question only, assume
the software licensed under this License Agreement allowed the licensee (i.e.
the Customer) to hack into federal banking systems. After successfully using the Services to hack
into the U.S. Federal Bank, Monica Justice fled the country without paying the
Fees due under Section 5 of the License Agreement. Would the License Agreement be upheld by a
court of law? Why or why not?

PART II

Module 3 Journal
Assignment
Directions: Have you ever signed an agreement? What type of agreement was it? Were you the offeror or the offeree? What was the consideration under the
agreement? Did both parties fully
perform under the agreement? Please apply
APA format with in text citing, reference list, and double-space. Limit your word count to 400 words. Please visit the Academic Resource Center for
help with APA format.