CONFIDENTIAL
▇▇▇▇▇.▇▇▇ LICENSE AGREEMENT
This agreement, made as of the 20th day of December, 1999, (the "Effective
Date") by and between ▇▇▇▇▇.▇▇▇, a Delaware Corporation having its principal
offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(hereafter called "▇▇▇▇▇.▇▇▇"), its successors, and assigns, and ecom
▇▇▇▇.▇▇▇, Inc., a company having it principal offices at ▇▇▇▇ ▇▇▇ ▇▇▇▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereafter called "LICENSEE").
Recitals
A. ▇▇▇▇▇.▇▇▇ develops certain computer software programs which operate on
computer equipment, consisting of the "Class A Programs" (which include
proprietary application software, website creation tools, and other utilities)
all of which ▇▇▇▇▇.▇▇▇ is willing to license to LICENSEE on a non-exclusive
basis subject to the terms and conditions set forth herein. Proper operation
and use of the Class A Programs is dependent upon certain items of third party
software. Such third party software is referred to herein as the "Class B
Programs."
B. LICENSEE intends to combine such computer programs with other equipment
and/or software programs so as to create certain "LICENSEE Product(s)" and to
market such LICENSEE Product(s) to End-Users (as defined below).
Agreement
NOW, THEREFORE, in consideration of the premises hereof, and the mutual
obligations herein made and undertaken, the parties hereto agree as follows:
1. Definitions.
For the purposes of this Agreement, the definitions set forth in this Section
shall apply to the respective capitalized terms:
1.1 "Class A Programs." The Object Code form of the Programs identified as
Class A Programs on the attached Exhibit B (System Class A and Class B
Programs), which constitute the basic website creation software and management
system used on Computer Equipment. Class A Programs are to be provided to
End-Users by LICENSEE in unmodified form.
1.2 "Class B Programs." The Object Code form of the Programs identified as
Class B Programs on the attached Exhibit B (System Class A and Class B
Programs), which consist of software and other programs that ▇▇▇▇▇.▇▇▇
licenses from third parties for use with ▇▇▇▇▇.▇▇▇'s system.
1.3 "Computer Equipment." The minimum hardware required to operate the System
(including all model conversions, elements, and accessories) that are listed
in the attached Exhibit C (System Hardware Specifications).
1.4 "Derivative Work." A work based upon one or more preexisting works, such
as a computer program, or any other form in which a work may be modified,
recast, transformed, or adapted.
1.5 "Documentation." Those on-line instructions, manuals, and diagrams
pertaining to the Class A Programs furnished by ▇▇▇▇▇.▇▇▇, as may be updated
and revised from time-to-time by ▇▇▇▇▇.▇▇▇.
1.6 "End-User." A prospective customer of LICENSEE to whom LICENSEE offers
LICENSEE Products for use in the regular course of such customer's business.
1.7 "End-User License Agreement." The form of agreement to be entered into
between LICENSEE and each End-User, which grants the End-User the right and
license to use Class A and B Programs together with any additional programs
provided by LICENSEE, as part of a LICENSEE Product. Each End-User License
Agreement shall, among other things, prohibit the End-User from any copying of
the Class A or B Programs, from any transfer of any Class A or B Programs to
any third parties, and from any reverse compiling, reverse-assembly, or
reverse-engineering of the Class A or B Programs from the Object Code in which
they are distributed to End-Users. Each End-User License Agreement, which is
attached as Exhibit D (End-User License Agreement and Acceptable Use Policy),
shall also ensure that the End-User agrees to abide by ▇▇▇▇▇.▇▇▇'s Acceptable
Use Policy which is also attached in Exhibit D, and/or any modifications to
such Policy that ▇▇▇▇▇.▇▇▇ in its sole discretion may make available online
from time-to-time.
1.8 "Enhancement(s)." Computer program modifications or additions, other than
Maintenance Modifications, that may be integrated with the Programs or offered
separately by ▇▇▇▇▇.▇▇▇ and that alter the functionality of the Program or add
new functions thereto.
1.9 "Error." A defect in a Program that prevents it from functioning in
substantial conformity with the Documentation.
1.10 "LICENSEE Products." As permitted in this Agreement, one or more
combinations of Computer Equipment and Programs with other equipment and
computer software independently developed or procured by LICENSEE, to be
offered by LICENSEE, together with related services, to End-Users.
1.11 "Maintenance Modification(s)." Computer software changes to be
integrated with the Programs to correct any Errors therein, but that do not
alter the functionality of the Programs or add new functions thereto.
1.12 "MarketingTerritory." Worldwide.
1.13 "Object Code." Computer programs assembled or compiled in magnetic or
electronic binary form on software media, which are readable and usable by
machines, but not generally readable by humans without reverse-assembly,
reverse compiling, or reverse-engineering.
1.14 "Programs." The computer software, consisting of the Object Code form of
the Class A Programs and Class B Programs listed in the attached Exhibit B
(System Class A and Class B Programs), including all Maintenance Modifications
and Enhancements thereto.
1.15 "Proprietary or Confidential Information." "Proprietary or Confidential
Information" shall mean, with respect to a party hereto, all information or
material which is either (A) marked "Confidential," "Restricted," or
"Proprietary Information" or other similar marking or (B) known by the parties
to be considered confidential and proprietary. Proprietary or Confidential
Information includes, but is not limited to, the System, Programs, Source
Code, Object Code, and any trade secrets related thereto. In addition, each
of the terms and conditions of this Agreement, including pricing and royalty
information, shall constitute Proprietary or Confidential Information.
Neither party shall have any obligation with respect to Proprietary or
Confidential Information which: (i) is or becomes generally known to the
public by any means other than a breach of the obligations of a receiving
party; (ii) was previously known to the receiving party or rightly received by
the receiving party from a third party; (iii) is independently developed by
the receiving party without reference to information derived from the other
party; and (iv) subject to disclosure under court order or other lawful
process.
1.16 "Source Code." Computer programs written in higher-level programming
languages, sometimes accompanied by English language comments. Source Code is
intelligible to trained programmers and may be translated to Object Code for
operation on computer equipment through the process of compiling.
1.17 "System." The operation of the Class A Programs in combination with the
Class B Programs to provide a Web site creation system. The System is
described in more detail in the attached Exhibit A (ITOOL System).
1.18 "Third-Party License Agreements." Agreements with third party vendors
for the right and license to use the "Class B Programs" (which include
software and systems licensed by ▇▇▇▇▇.▇▇▇ from other third parties) in the
System.
1.19 "Web Zone Server Cluster." The equipment configuration identified in
Exhibit C (System Hardware Specifications).
2. License Grant - Class A Programs.
2.1 Grant. Subject to the terms and conditions of this Agreement, ▇▇▇▇▇.▇▇▇
hereby grants to LICENSEE a nonexclusive, nontransferable license to use Class
A Programs on LICENSEE's computer equipment, for use as part of LICENSEE
Products, to End-Users who have duly executed an End-User License Agreement
and Acceptable Use Policy in the Marketing Territory during the Term of this
Agreement. LICENSEE may:
a) Use the Class A Programs only at the site identified in Exhibit F (Site).
LICENSEE may change the location of the site (to another location within the
continental United States) on thirty (30) days written notice to ▇▇▇▇▇.▇▇▇;
b) Use the Class A Programs in connection with the Class B Programs for the
purpose of forming the System;
c) Use the Class A Programs for marketing and demonstration purposes and for
the training of End-Users;
d) Make one copy of the Class A Programs for backup and archival purposes.
Except as expressly provided herein, LICENSEE may not do any of the following:
a) Copy, translate, port, modify, or make Derivative Works of the Class A
Programs;
b) Electronically transmit the Class A Programs from one computer to another
or over a network, including the Internet;
c) Assign this license without ▇▇▇▇▇.▇▇▇'s prior written approval;
d) Rent, sell, assign, lease, sublicense, or otherwise transfer the Class A
Programs or use them in any manner not expressly authorized by this Agreement;
and
e) Derive or attempt to derive the Source Code, source files, or structure of
all or any portion of the Class A Programs by reverse engineering,
disassembly, decompilation, or any other means;
f) Provide a copy of the Class A Programs to any End-User.
2.2 Intellectual Propertv Protection. The Class A Programs contain material
that is protected by United State copyright law and trade secret law, and by
international treaty, provisions. All rights not expressly granted to
LICENSEE under this Agreement are expressly reserved by ▇▇▇▇▇.▇▇▇. LICENSEE
may not remove or modify any proprietary notice of ▇▇▇▇▇.▇▇▇ from any copy of
the Class A Programs.
2.3 Ownership. All copyrights, patents, patent rights, trade secrets,
trademarks, service marks, tradenames, moral rights and other intellectual
property and proprietary rights in the Class A Programs are and shall remain
the sole and exclusive property of ▇▇▇▇▇.▇▇▇. LICENSEE agrees that it will not
claim or assert title to the Class A Programs or attempt to transfer any title
to End-Users or any third parties.
3. Class B Programs License Agreements.
LICENSEE shall obtain at its own expense appropriate Third Party License
Agreements to use the Class B Programs in connection with the System and to
provide for the use of such programs to End-Users who have duly executed an
End-User License Agreement and Acceptable Use Policy.
4. Computer Equipment.
LICENSEE shall obtain at its own expense computer and telecommunications
hardware sufficient to satisfy the minimum Computer Equipment requirements set
forth in Exhibit C (System Hardware Specifications) for operation of the
System. Maintenance for the Computer Equipment is available through the
respective vendor(s)/manufacturer(s) of such equipment. LICENSEE shall be
responsible for negotiating and entering into any such vendor maintenance
agreements.
5. Temporary Hosting Services.
LICENSEE may take delivery of the System at any time within twelve (12) months
of the Effective Date. Prior to delivery, ▇▇▇▇▇.▇▇▇ will provide hosting
services at no additional charge for LICENSEE's End-Users ("Hosting
Services"). After delivery, ▇▇▇▇▇.▇▇▇ will provide reasonable assistance in
transitioning the End-User accounts to LICENSEE's facility. The Hosting
Services shall not commence until issuance and sale of the, LICENSEE stock has
been completed pursuant to Exhibit "E. " iTOOL. com shall have no obligation
or responsibility to continue to provide Hosting Services beyond twelve (12)
monthly from the Effective Date.
6. "Powered by ▇▇▇▇▇.▇▇▇" Logo.
At all times during the Term, LICENSEE shall maintain a "Powered by ▇▇▇▇▇.▇▇▇"
logo (to be provided by ▇▇▇▇▇.▇▇▇) on each LICENSEE (or LICENSEE reseller)
branded Web page from which an End-User can purchase LICENSEE's Products.
Such logo shall be displayed in a size not less than a "download I.E. 5.0 now"
button. LICENSEE shall include the ▇▇▇▇▇.▇▇▇ logo in all print marketing,
branding, and advertising campaigns regarding LICENSEE's Products.
7. Fees/Payment.
LICENSEE shall pay the License Fees, Monthly License (End-User) Fees,
Installation Fees, and Maintenance and Support Fees set forth in Exhibit E
(Pricing/Payment Terms). LICENSEE shall reimburse ▇▇▇▇▇.▇▇▇ for all
reasonable travel, living, telecommunication charges, and all other
out-of-pocket expenses incurred by ▇▇▇▇▇.▇▇▇ in connection with the
installation of the System, training, and in rendering any other services
under this Agreement. Payments are due when indicated. Payments not made
when due shall be subject to late charges equal to the lesser of (i) one and
one-half percent (1.5%) per month of the overdue amount or (ii) the maximum
amount permitted under applicable law.
8. Reports and Audits.
8.1 Reports.
Within thirty (30) days following the end of each calendar quarter, LICENSEE
shall provide a written report to ▇▇▇▇▇.▇▇▇ detailing all revenue received
from End-Users for use of the System.
8.2 Audits.
During the Term, LICENSEE shall keep accurate books of account and records
covering all transactions relating to this Agreement (including, but not
limited to, revenue charged by LICENSEE to End-Users for use of the System or
portion thereof). ▇▇▇▇▇.▇▇▇ and its authorized representatives shall have the
right, at all reasonable hours of the day and upon reasonable prior notice to
LICENSEE examine such books of account and records and all other documents and
materials in LICENSEE's possession or under its control (including records of
LICENSEE's parents, subsidiaries, affiliates and third parties, if they are
involved in activities which relate to this Agreement) relating to this
Agreement. ▇▇▇▇▇.▇▇▇ shall have free and full access for such purposes and for
the purpose of making extracts and copies, Should an audit by ▇▇▇▇▇.▇▇▇
establish a deficiency of more than five percent (5 %) between the amount
found to be due and the amount actually paid or reported, ▇▇▇▇▇.▇▇▇'s actual
out-of-pocket costs of the audit will be paid by LICENSEE together with the
amount of the deficiency, plus interest at the rate of one and one-half
percent (1 1/2 %) per month from the date such amount became due until the
date of payment, plus a penalty of three (3) times amount of the deficiency.
LICENSEE shall pay such amount within thirty (30) days. All such books of
account and records shall be kept available for at least three (3) years after
the termination of this Agreement. LICENSEE acknowledges and agrees that the
penalty set forth herein is reasonable under the circumstances existing as of
the date this Agreement is entered into. ▇▇▇▇▇.▇▇▇ reserves the right to audit
and review, either electronically (with or without notice) or through a review
of LICENSEE records, LICENSEE compliance with this Agreement and LICENSEE
accounts.
9.1 Non-Disclosure and Non-Use. The parties agree, both during the Term of
this Agreement and for a period of ten (10) years after termination of this
Agreement to hold each other's Proprietary or Confidential Information in
strict confidence. The parties agree not to make each other's Proprietary or
Confidential Information available in any form to any third party or to use
each other's Proprietary or Confidential Information for any purpose other
than as specified in this Agreement. Without limitation on Section 9.3
(Equitable Relief), each party agrees to take all reasonable steps to ensure
that Proprietary or Confidential Information of either party is not disclosed
or distributed by its employees, agents or consultants in violation of the
provisions of this Agreement, and LICENSEE also agrees to take all such steps
with respect to any End-Users.
9.2 Employees. Each party shall ensure that its employees, agents, and
consultants, and in the case of LICENSEE granting access to the System to
End-Users, its End-Users, shall be permitted access to the other party's
Proprietary or Confidential Information only on a need-to-know basis and are
instructed regarding, and agree in writing to act in accordance with, the
obligations of non-disclosure and non-use imposed by this Agreement. In
particular, LICENSEE shall ensure that each of its End-Users has executed the
End-User License Agreement, attached as Exhibit D (End-User License Agreement
and Acceptable Use Policy), before being granted access to the System and/or
Programs. LICENSEE shall not solicit or hire any personnel of ▇▇▇▇▇.▇▇▇
during the Term, or for a period of one (1) year following Termination
(Section 22 (Term and Termination)), without the express written consent of
▇▇▇▇▇.▇▇▇.
9.3 Equitable Relief. Each party acknowledges that any use or disclosure of'
the other party's Proprietary or Confidential Information other than as
specifically provided for in this Agreement and other written agreements
between ▇▇▇▇▇.▇▇▇ and LICENSEE may result in irreparable injury and damage to
the non-using or non-disclosing party. Accordingly, each party hereby agrees
that, in the event of use or disclosure by the other party other than as
specifically provided for in this Agreement and in other written agreements
between the parties, the non-using or non-disclosing party may be entitled to
equitable relief as granted by any appropriate judicial body.
10. Expenses.
It is expressly understood and agreed that ▇▇▇▇▇.▇▇▇ is under no obligation or
requirement to reimburse LICENSEE for any expenses or costs incurred by
LICENSEE in the performance of its responsibilities under this Agreement. Any
costs or expenses incurred by LICENSEE shall be at LICENSEE's sole risk and
upon its independent business judgment that such costs and expenses are
appropriate.
11. Maintenance.
The parties' respective and sole obligations regarding maintenance and support
are set forth in Exhibit G (Maintenance and Support Obligations). LICENSEE's
sole remedy for ▇▇▇▇▇.▇▇▇'s breach of its Maintenance and Support Obligations
is set forth in Section 16 (Exclusive Remedy).
12. Training.
At no additional charge to LICENSEE, ▇▇▇▇▇.▇▇▇ shall provide Licensee's
employees with a maximum of one (1) day (8 hours per day) of training
regarding the operation of the Class A Programs. Such training shall be
conducted at mutually agreeable times at a facility designated by ▇▇▇▇▇.▇▇▇.
Additional training may be obtained from ▇▇▇▇▇.▇▇▇ at its then current rates.
13. Security Interest.
LICENSEE hereby grants ▇▇▇▇▇.▇▇▇, and ▇▇▇▇▇.▇▇▇ hereby reserves, a security
interest in and to all license rights in the Class A Programs and the System,
including any Enhancements, delivered to LICENSEE under this Agreement from
time to time, as securi.ty for the payment and performance by LICENSEE of all
its obligations and liabilities to ▇▇▇▇▇.▇▇▇ under this Agreement. LICENSEE
agrees to assist and cooperate fully with ▇▇▇▇▇.▇▇▇ in the perfection and
enforcement of such security interest.
14. LICENSEE Exemption Certiflcation.
LICENSEE hereby certifies that it either holds or will acquire prior to
offering for resale a valid LICENSEE Exemption Certificate issued by each
taxing jurisdiction or entity in the Marketing Territory where such
certificate is required as a condition for the avoidance of applicable sales
or use taxes, covering any Computer Equipment to be resold and any Programs to
be licensed under this Agreement. Prior to any shipment of LICENSEE Products
under this Agreement, LICENSEE will provide ▇▇▇▇▇.▇▇▇ with a copy of each such
certificate, thereby entitling LICENSEE to be treated by ▇▇▇▇▇.▇▇▇ as exempt
from collection of tax on such LICENSEE Products in each jurisdiction or
entity from which a certificate is obtained. LICENSEE shall promptly notify
▇▇▇▇▇.▇▇▇ of any additions, deletions, or changes to such certificates.
LICENSEE shall indemnify and hold harmless ▇▇▇▇▇.▇▇▇ from and against any
taxes, duties, tariffs, or other assessments levied by or on behalf of any
taxing jurisdiction or entity that fails to issue, or disputes the validity or
coverage of, any such exemption certificates.
15. Limited Warranty.
During the period for which LICENSEE obtains Maintenance and Support services
from ▇▇▇▇▇.▇▇▇, ▇▇▇▇▇.▇▇▇ warrants that the Class A Programs shall perform in
all material respects with the then current Documentation, provided, however,
that the Class A Programs are operated on the Computer Equipment and not
subject to misuse by LICENSEE or any End-User.
16. Exclusive Remedy.
The exclusive remedy of LICENSEE and of any End-User against ▇▇▇▇▇.▇▇▇ for
breach of any of the foregoing warranties or any other provision of the this
Agreement, including, but not limited to ▇▇▇▇▇.▇▇▇'s Maintenance and Support
Obligations, shall be to seek repair or replacement of the affected Class A
Programs, and, if such repair or replacement is not effected after reasonable
notice and opportunity for remedial action by ▇▇▇▇▇.▇▇▇, to obtain a refund of
any sales price or royalty fee paid to ▇▇▇▇▇.▇▇▇ for the affected Class A
Programs. Such repayment shall not exceed an amount equal to the total
Royalty Fees paid by LICENSEE to ▇▇▇▇▇.▇▇▇, in accordance with Exhibit E
(Pricing/Payment Terms), in the thirty (30) days immediately preceding the
breach.
17. Disclaimer of Warranties.
17.1 Class A Programs and The System.
EXCEPT AS PROVIDED IN SECTION 15 (LIMITED WARRANTY), THE CLASS A PROGRAMS, THE
SYSTEM, AND HOSTING SERVICES ARE PROVIDED TO LICENSEE AND THE END-USERS "AS
IS," WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. ▇▇▇▇▇.▇▇▇ EXPRESSLY
DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO,
THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
AND TITLE/NON-INFRINGEMENT. ▇▇▇▇▇.▇▇▇ DOES NOT WARRANT THAT THE CLASS A
PROGRAMS, THE SYSTEM, OR THE HOSTING SERVICES WILL MEET LICENSEE'S
REQUIREMENTS OR THOSE OF ITS END-USERS OR THAT THE OPERATION OF THE CLASS A
PROGRAMS AND THE SYSTEM WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS
IN THE CLASS A PROGRAMS AND THE SYSTEM WILL BE CORRECTED. ▇▇▇▇▇.▇▇▇ DOES NOT
WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE
OF THE CLASS A PROGRAMS OR THE SYSTEM OR RELATED DOCUMENTATION IN TERMS OF
THEIR CORRECTNESS, ACCURACY, QUALITY, RELIABILITY, APPROPRIATENESS FOR A
PARTICULAR TASK OR APPLICATION, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION
OR ADVICE GIVEN BY ▇▇▇▇▇.▇▇▇ OR ▇▇▇▇▇.▇▇▇'s AUTHORIZED REPRESENTATIVES SHALL
CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
17.2 All other Software and Hardware.
▇▇▇▇▇.▇▇▇ MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED WITH
REGARD TO THE CLASS B SOFTWARE, COMPUTER EQUIPMENT, OR ANY OTHER SOFTWARE OR
COMPUTER HARDWARE OBTAINED FROM THIRD PARTIES (COLLECTIVELY, THE "THIRD PARTY
ITEMS"). ▇▇▇▇▇.▇▇▇ EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED,
INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE THIRD PARTY ITEMS.
LICENSEE AND THE END-USERS SHOULD CONSULT THE RESPECTIVE
VENDORS/-MANUFACTURERS OF THE THIRD PARTY ITEMS FOR WARRANTY AND PERFORMANCE
INFORMATION. NOTHING IN THIS AGREEMENT SHALL BE INTERPRETED AS A WARRANTY,
EITHER EXPRESS OR IMPLIED, BY ▇▇▇▇▇.▇▇▇ THAT WOULD EXPAND IN ANY WAY A
VENDOR/MANUFACTURER'S STANDARD END-USER WARRANTY.
18. Limitation of Liability.
IN NO EVENT SHALL ▇▇▇▇▇.▇▇▇ BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY
INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT,
SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS,
LOSS OF GOODWILL OR BUSINESS REPUTATION, BUSINESS INTERRUPTION, LOSS OF DATA,
OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF OR CONNECTED IN ANY WAY WITH
THIS AGREEMENT, OR FOR ANY CLAIM BY ANY THIRD PARTY (INCLUDING FOR
INTELLECTUAL PROPERTY INFRINGEMENT), EVEN IF VENDOR HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF ▇▇▇▇▇.▇▇▇ TO LICENSEE FOR
ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT
(INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL NOT EXCEED THE AMOUNTS SET FORTH
IN SECTION 16 (EXCLUSIVE REMEDY).
19. Limitation of Actions.
No action arising or resulting from this Agreement, regardless of its form,
may be brought by LICENSEE or any End-User more than one year after delivery
of the affected products or programs by ▇▇▇▇▇.▇▇▇ to LICENSEE.
20. Indemnification.
20.1 ▇▇▇▇▇.▇▇▇'s Indemnification. At ▇▇▇▇▇.▇▇▇'s expense as described
herein, ▇▇▇▇▇.▇▇▇ agrees to defend, indemnify, and hold harmless LICENSEE, and
LICENSEE's officers, employees, and authorized successors in interest from and
against any claim, action, proceeding, liability, loss, damage, cost, or
expense, including, without limitation, attorneys' fees as provided herein,
arising out of any claim that LICENSEE's permitted use under this Agreement of
the Class A Programs infringes upon or otherwise violates any copyright, trade
secret, trademark, or service ▇▇▇▇ of a third party (collectively,
"Infringement Claim(s)") by paying all amounts that a court finally awards or
that ▇▇▇▇▇.▇▇▇. agrees to in settlement of such Infringement Claim(s) as well
as any and all ▇▇▇▇▇.▇▇▇ authorized expenses or charges arising from such
Infringement Claim(s) (including attorneys fees) as they are incurred by
LICENSEE or any other party indemnified under this Section. LICENSEE agrees
that, if its use of the Class A Programs, or any part thereof becomes, or in
▇▇▇▇▇.▇▇▇'s opinion is likely to become, the subject of an Infringement
Claim(s), LICENSEE will permit ▇▇▇▇▇.▇▇▇ either to procure the right for
LICENSEE to continue to use the Class A Programs, or part thereof, or to
replace or modify the Class A Programs, or part thereof, with another item of
comparable quality and performance capabilities to become non-infringing. If
neither of such alternatives is reasonably possible, the infringing items
sball be returned to ▇▇▇▇▇.▇▇▇ and ▇▇▇▇▇.▇▇▇'s sole liability to LICENSEE
shall be to refund the amounts paid therefor by LICENSEE from the time such
infringement was identified. Notwithstanding the foregoing, ▇▇▇▇▇.▇▇▇ assumes
no liability or indemnity obligation for Infringement Claim(s) arising from
(i) use of the Class A Programs in combination with ▇▇▇▇▇▇▇▇.▇▇▇ approved
third party products, including hardware and software, (ii) modifications or
maintenance of the Class A Programs by a party other than ▇▇▇▇▇.▇▇▇, (iii)
misuse of the Class A Programs, and (iv) failure of LICENSEE to implement any
updates, Maintenance Modifications, or Enhancements to the Class A Programs,
if the Infringement Claim(s) would have been avoided by the use of the
updates, Maintenance Modifications, or Enhancements.
20.2 LICENSEE's Indemnification. At LICENSEE's expense as described herein,
LICENSEE agrees to defend, indemnify, and hold harmless ▇▇▇▇▇.▇▇▇, and
▇▇▇▇▇.▇▇▇'s officers, employees, and authorized successors in interest from
and against any claim, action, proceeding, liability, loss, damage, cost, or
expense, including, without limitation, attorneys' fees as provided herein,
arising out of any claim that (i) LICENSEE Products infringe upon or otherwise
violate any copyright, trade secret, trademark, or service: ▇▇▇▇ of a third
party, or (ii) representations or warranties made by LICENSEE to End-Users
that have not been approved in writing by ▇▇▇▇▇.▇▇▇, (iii) LICENSEE's use of
the Class A Programs in excess of the rights conferred in this Agreement
(collectively, "Indemnity Claim(s)") by paying all amounts that a court
finally awards or that LICENSEE agrees to in settlement of such Indemnity
Claim(s) as well as any and all LICENSEE authorized expenses or charges
arising from such Indemnity Claim(s) (including attorneys fees) as they are
incurred by ▇▇▇▇▇.▇▇▇ or any other party indemnified under this Section.
20.3 Indemnity Obligations, To qualify for such indemnity and defense under
this Section, the party seeking indemnity must: (i) give the other party
prompt written notice of the potential liability or claim; and (ii) allow the
other party to control, and fully cooperate with the other party in, the
defense and all related negotiations.
21. LICENSEE Warranties.
21.1 Authority. LICENSEE represents and warrants that it is a duly formed
corporation, organized and existing under the laws of the State of Florida and
that it has full power and authority to enter into this Agreement.
21.2 Stock. LICENSEE represents and warrants that all of the outstanding
shares of stock to be issued pursuant to this Agreement, when issued, sold and
delivered in accordance with the terms of this Agreement for the consideration
provided for herein, will be duly authorized, validly issued, fully paid and
non-assessable. LICENSEE further represents and warrants that the offer and
sale of the shares of stock to be issued pursuant to this Agreement are exempt
from the qualification requirements of the Arizona state securities laws, and
the rules thereunder, and the registration and/or qualification requirements
of all other applicable state and federal securities laws.
22. Termination and Termination.
22.1 Term. This Agreement will commence on the Effective Date and continue
in force for one (1) year, unless earlier terminated as provided herein. The
Agreement will be automatically renewed for successive one (1) year terms
unless either party, in its discretion, notifies the other party in writing to
the contrary within at least thirty (30) days prior to the expiration of the
current term. The initial one (1) year term and all subsequent renewal terms,
if any, shall be referred to herein as the "Term. "
22.2 Termination. This Agreement shall terminate:
(a) On the thirtieth (30th) day after either party gives the other notice of'
a material breach by the other of any term or condition of this Agreement,
unless the breach is cured before that day. A failure by LICENSEE to pay any
fees or royalties when due under this Agreement shall constitute a material
breach of its obligations. In the event of a LICENSEE breach of Section 2
(License Grant) or Section 9 (Confidentiality Of Information: Protection And
Security), ▇▇▇▇▇.▇▇▇ may terminate this Agreement immediately ▇▇▇▇▇.▇▇▇'s
right to terminate the Agreement as provided herein shall include the
activation of any disabling mechanisms in the System.
(b) Upon notice by either party, immediately, if (i) a receiver is appointed
for the other party or its property; (ii) the other party becomes insolvent or
unable to pay its debts as they mature in the ordinary course of business or
makes a general assignment for the benefit of its creditors; or (iii) any
proceedings (whether voluntary or involuntary) are commenced against the other
party under any bankruptcy or similar law and such proceedings are not vacated
or set aside within sixty (60) days from the date of commencement thereof.
22.3 Post-Termination. From and after termination:
(a) All past due sums owed to ▇▇▇▇▇.▇▇▇ by LICENSEE, including royalties and
other fees, shall become immediately due and payable upon the effective date
of termination.
(b) In the event that LICENSEE becomes insolvent or otherwise as outlined in
Section 22.2 of this Agreement, all LICENSEE created End-User accounts shall
default to ▇▇▇▇▇.▇▇▇ for receipt of payment, maintenance, etc. and ▇▇▇▇▇.▇▇▇
shall have no further obligation to LICENSEE.
(c) Upon notification of termination, LICENSEE shall destroy or return to
▇▇▇▇▇.▇▇▇ all copies of the Class A Programs and to certify in writing that
all known copies, including backup copies, have been destroyed.
(d) Upon notification of termination, LICENSEE shall have no further right to
use the Class A Programs.
23. Limitation of Representations and Use of Name by LICENSEE.
LICENSEE shall make no representations concerning ▇▇▇▇▇.▇▇▇, the System, or
any Programs, including any Maintenance modifications or Enhancements, except
as set forth in the printed documentation furnished to LICENSEE by ▇▇▇▇▇.▇▇▇.
LICENSEE shall not reproduce, reference, distribute, or utilize any trade name
or trademark of ▇▇▇▇▇.▇▇▇, except
solely for purposes of identifying ▇▇▇▇▇.▇▇▇'s products and programs, without
the prior written approval of ▇▇▇▇▇.▇▇▇.
LICENSEE shall submit to ▇▇▇▇▇.▇▇▇ for approval, prior to use, distribution,
or disclosure, any advertising, promotion, or publicity in which the trade
name or trademarks of the ▇▇▇▇▇.▇▇▇ are used, or which is otherwise undertaken
pursuant to this Agreement. ▇▇▇▇▇.▇▇▇ shall have the right to require, at its
discretion, the correction or deletion of any misleading, false, or
objectionable material from any such advertising, promotion, or publicity.
24. Independent Contractor Status.
LICENSEE is an independent contractor under this Agreement, and nothing herein
shall be construed to create a partnership, joint venture, or agency
relationship between the parties hereto with the sole exception that LICENSEE
acts as a licensing agent of ▇▇▇▇▇.▇▇▇ with respect to Class A Programs as
provided herein. LICENSEE shall have no authority to enter into agreements of
any kind on behalf of ▇▇▇▇▇.▇▇▇, other than the presentation to customers of
the End-User License Agreement and Acceptable Use Policy that protect the
intellectual property rights of Class A and Class B Programs, in strict
accordance with the terms of this Agreement, and shall have no further power
or authority to bind or obligate ▇▇▇▇▇.▇▇▇ in any manner to any End-User or
other third party.
25. Compliance With Law.
LICENSEE shall comply with all applicable laws and regulations of governmental
bodies or agencies in its performance under this Agreement.
26. Export Restrictions.
LICENSEE agrees that it will not ship, transmit, or otherwise distribute the
Class A Programs or any Derivative Work based on the Class A Programs to
another country in violation of any export controls imposed by U.S. laws or
regulations, including, but not limited to, laws and regulations governing the
export of encryption technology.
27. Assignment.
27.1 Assignment by LICENSEE. LICENSEE represents that it is acting on its
own behalf and is not acting as an agent for or on behalf of any third party,
and further agrees that it may not assign its rights or obligations under this
Agreement without the prior written consent of ▇▇▇▇▇.▇▇▇. LICENSEE
acknowledges that any attempt to assign this Agreement without such consent
from ▇▇▇▇▇.▇▇▇ will be void.
27.2 Assignment by ▇▇▇▇▇.▇▇▇. ▇▇▇▇▇.▇▇▇ may assign its rights to payments
from LICENSEE, and/or any contracted third party of LICENSEE, to any third
party. ▇▇▇▇▇.▇▇▇ may assign this Agreement to any entity acquiring or merging
with ▇▇▇▇▇.▇▇▇, or to whom ▇▇▇▇▇.▇▇▇ transfers all or substantially all of its
ITOOL product assets, or to any entity that ▇▇▇▇▇.▇▇▇ executes a contract with
that provides for such an assignment.
28. Arbitration.
Except as provided below, any controversy or claim arising out of or relating
to this Agreement, including, without limitation, the interpretation or breach
thereof, shall be submitted to a panel of three (3) arbitrators in Phoenix,
Arizona, in accordance with the Commercial Arbitration Rules of the American
Arbitration Association. Such panel shall include only those persons with
experience in the areas of information technology and software. Each party
shall choose one (1) arbitrator, and the third arbitrator shall be chosen by
the two (2) arbitrators selected by the parties. The award of the arbitrators
shall be made in writing, with findings of fact and conclusions of law. The
written decision shall be final, binding, and convertible to a court judgment
in any appropriate jurisdiction. Notwithstanding the foregoing, this Section
shall not preclude either party from seeking temporary, provisional, or
injunctive relief from any court.
29. Attorneys Fees and Costs.
In any action/arbitration brought under this Agreement, the prevailing party
shall be entitled to recover its actual costs and attorneys' fees and all
other litigation costs, including expert witness fees, and all actual
attorneys' fees and costs incurred in connection with the enforcement of a
judgment arising from any action or proceeding.
30. Notices.
All notices, demands or consents given under this Agreement will be in writing
and will be deemed given when delivered personally, or twelve (12) days after
deposit in the mail (certified or registered mail), or four (4) days after
being sent by courier, to the receiving party at the address stated on page
one of this Agreement or at such other address given by either party to the
other in writing.
31. Choice of Law/Venue.
This Agreement shall be governed by and construed in accordance with the laws
of the State of Arizona. The parties agree that the United Nations
Convention on Contracts for the International Sale of Goods (1980) is
specifically excluded from application to this Agreement. LICENSEE agrees
that all actions or proceedings arising in connection with this Agreement
shall be tried and litigated exclusively in the state or federal (if permitted
by law and a party elects to file an action in federal court) courts located
in Maricopa County, Arizona. This choice of venue is intended by the parties
to be mandatory and not permissive in nature, and to preclude the possibility
of litigation between the parties with respect to, or arising out of, this
Agreement in any jurisdiction other than that specified in this Section. Each
party waives any right it may have to assert the doctrine forum non conveniens
or similar doctrine or to object to venue with respect to any proceeding
brought in accordance with this Section.
32. Survival.
Sections 2, 7, 9, 15, 16, 17, 18, 20, 28, 29, and 31 shall survive termination
of this Agreement.
33. No Waiver.
Neither party shall by mere lapse of time without giving notice or taking
other action hereunder be deemed to have waived any breach by the other party
of any of the provisions of' this Agreement. Further, the waiver by either
party of a particular breach of this Agreement by the other party shall not be
construed as, or constitute, a continuing waiver of such breach, or of other
breaches of the same or other provisions of this Agreement.
34. Force Majeure.
Except for the payment of money as described in Section 7 and Exhibit E
(Pricing/Payment Terms) of this Agreement, neither party will be liable for
any failure or delay in performance under this Agreement which is due to any
event beyond the reasonable control of such party, including without
limitation, fire, explosion, unavailability of utilities or raw materials,
unavailability of components, telecommunications failures, Internet slowdowns
or failures, labor difficulties, war, riot, act of God, export control
regulation, laws, judgment or government instructions.
35. Severability.
If any provision of this Agreement shall be held illegal, unenforceable, or in
conflict with any law of a federal, state, or local government having
jurisdiction over this Agreement, the validity of the remaining portions or
provisions hereof shall not be affected thereby.
36. No Conflict of Interest.
LICENSEE represents and warrants that it has full power and authority to
undertake the obligations set forth in this Agreement and that it has not
entered into any other agreements, nor will it enter into any other
agreements, that would render it incapable of satisfactorily performing its
obligations hereunder, or place it in a position of conflict of interest, or
be inconsistent or in conflict with its obligations hereunder.
37. Agreement Drafted by Both Parties.
This Agreement is the result of arm's length negotiations between the parties
and shall be construed to have been drafted by all parties such that any
ambiguities in this Agreement shall not be construed against either party.
38. Entire Agreement.
Each of the parties hereto acknowledges that it has read this Agreement,
understands it, and agrees to be bound by its terms. The parties further
agree that this Agreement is the complete and exclusive state of agreement and
supersedes all proposals (oral or written), understandings, representations,
conditions, warranties, covenants, and all other communications between the
parties relating thereto. Only a writing that refers to this Agreement and is
signed by both parties may amend this Agreement.
39. Counterparts.
This Agreement may be executed simultaneously in two or more counterparts,
each of' which will be deemed an original, but all of which together will
constitute the same Agreement.
40. Exhibit List.
The following Exhibits shall be attached to this Agreement:
Exhibit A The iTOOL System
Exhibit B System Class A and Class B Programs
Exhibit C System Hardware Specifications
Exhibit D End-User License Agreement and Acceptable Use Policy
Exhibit E Pricing/Payment Terms
Exhibit F Site
Exhibit G Maintenance and Support Obligations
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
by their authorized representatives as set forth below:
▇▇▇▇▇.▇▇▇, Inc. LICENSEE:
/s/ /s/
By: By:
Title: Title:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇ Address:
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Date:_________________
Date:_________________
Exhibit A
THE ITOOL SYSTEM
The ITOOL System includes the following features:
e-commerce capabilities
site management tools
site development tools
IEDIT (the WYSIWYG browser-based web editor)
SQL database access
Database management tools
Site creation and database creation wizards
E-mail management
Domain name tools
Automated web hosting solution
Automated billing and invoices
Automated server management
Automated DNS management
Automated customer service
Automated collections
Sales and account creation tracking
Template and site design management (database driven)
Exhibit B
SYSTEM CLASS A AND CLASS B PROGRAMS
Class A Programs of the System include:
ITOOL Version 2.0 and Version 3.0 (when released)
iEdit
iTOOL Monitor RT
Class B Programs include:
Microsoft Windows NT 4.0
Microsoft SQL Server 6.5
Cold Fusion Application Server 3.1 or Higher
Netscape Messaging Server (With Directory Server)
Media House Statistics Server 4.0
RealMedia Server
Additional image library licenses and other licenses of the LICENSEE's
choosing.
Exhibit C
SYSTEM HARDWARE SPECIFICATIONS
Recommended Hardware Specifications:
Minimum requirement for up to 2,000 accounts.
Master Server Cluster:
1. Dedicated Master ITOOL Server
Recommended Add 1 Round ▇▇▇▇▇ Master Server Per New Zone
2. Dedicated DNS Server
3. Dedicated Database Server
4. Dedicated Commerce Server
* Recommended Add I Round ▇▇▇▇▇ Commerce Server Per New
Zone
Webzone Server Cluster:
1. 1 Dedicated POP Server
2. 1 Dedicated LICENSEE Database Server
3. Dedicated LICENSEE Web Server
1 Server Per 1,000-2,000 Accounts
Up to 5 Web Servers Per Zone
Exhibit D
END-USER LICENSE AGREEMENT AND ACCEPTABLE USE POLICY
PLEASE READ THIS AGREEMENT AND POLICY CAREFULLY BEFORE USING ANY OF THE
SERVICES DESCRIBED BELOW. BY USING THE SERVICES YOU ARE ACKNOWLEDGING THAT
YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND POLICY AND THAT YOU AGREE TO
BE BOUND BY THEIR TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS
AGREEMENT AND POLICY, PROMPTLY EXIT THIS PAGE WITHOUT ACCESSING OR USING ANY
OF THE SERVICES.
1. The Service: (LICENSEE')s service (the "Service") provides the tools for
you to develop, a web site. The specific features of the Service depend on
the level of Service you select. You are responsible for providing and
maintaining all computer equipment and software and telecommunications
services necessary to access the Service. As provided in Section (LICENSEE)
currently intends to make the Service available 24 hours per day, seven days
per week, but (LICENSEE) may in its discretion and without notice limit the
availability of the Service for maintenance or other necessary activities.
(LICENSEE) makes no representation or warranty that the Service will be
uninterrupted. Subject to the terms of this Agreement, you are granted a
non-exclusive license to use the Service to develop your web site. Nothing in
this Agreement grants or transfers to you any ownership rights in the service,
including the software and other intellectual property rights related thereto.
2. Payment: For access to and use of the Service, you agree to pay the
amounts set forth in the Fee Schedule with (LICENSEE) for the level of Service
you select. The Basic Subscription Fee will be charged whether you use the
Service or not. You are responsible for any taxes, including personal
property taxes or sales taxes, resulting from your use of the Service. All
past due amounts will bear interest at the rate of 1 % per month or the
maximum amount permissible by law until paid in full. You agree to pay all
attorney and collection fees arising from efforts to collect any past due
amounts from you.
3. Customer's Responsibilities: You agree to comply with the Acceptable Use
Policy attached to this Agreement and all applicable laws and regulations,
including, but not limited to, those related to pornography, obscenity,
copyright, trademark, other intellectual property rights, data privacy,
international communications, import and export regulations and tax laws and
regulations. Otherwise, you are solely responsible for any content contained
on your Web site. You may not resell, re-market, or otherwise redistribute
the Service or any portion thereof or offer services to others for the
creation of Web sites using the Service without written permission of
(LICENSEE). You agree to notify (LICENSEE) promptly if you suspect
unauthorized use of your (LICENSEE) account. Until you notify (LICENSEE), you
remain solely responsible for such unauthorized use and any damages that may
result there from. You further agree to notify (LICENSEE) immediately in the
event you become subject to any lawful order or process that would prohibit or
limit your use of the Service.
4. Termination: (LICENSEE) may at any time and without advance notice modify
or restrict your use of the Service if (LICENSEE) determines in its sole
discretion that your use of the Service violates the Acceptable Use Policy,
any laws or regulations, any intellectual property rights of (LICENSEE) or a
third party, or any export or import regulations, is disruptive or causes a
malfunction of the Service. If you do not correct the violation within ten
days thereafter, (LICENSEE) may terminate this Agreement. (LICENSEE) may
terminate this Agreement on ten days notice for any other breach of this
Agreement if you fail to cure the breach within the ten-day period. (LICENSEE)
may otherwise terminate this Agreement for any reason or no reason on thirty
days notice and refund to you any prepaid fees.
5. Rights and Duties Upon Termination: Upon termination of this Agreement,
all rights to the Service terminate immediately. You remain liable for the
full monthly charge for the month during which your Service is suspended or
terminated and for any usage-based fees. If this Agreement is terminated by
(LICENSEE), you agree not to re-register for or otherwise access the Service
without (LICENSEE)'s prior written approval. (LICENSEE) may delete any data
files associated with your use of the Service upon termination of this
Agreement.
6. Web Site Availability: Your Web site will be accessible to third parties
via the World Wide Web portion of the Internet twenty-four (24) hours a day,
seven (7) days a week, except for scheduled maintenance and required repairs,
and except for any loss or interruption of hosting services due to causes
beyond the control of (LICENSEE) or which are not reasonably foreseeable by
(LICENSEE), including, but not limited to, interruption or failure of
teleconununication or digital transmission links and Internet slow-downs or
failures.
7. Disclaimer of Warranties: THE SERVICE IS PROVIDED AS-IS, WITH ALL FAULTS,
AND WITHOUT WARRANTY OF ANY KIND. (LICENSEE) EXPRESSLY DISCLAIMS ALL
WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
TITLE/NON-INFRINGEMENT. (LICENSEE) DOES NOT WARRANT THAT THE SERVICES WILL
MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE
UNINTERRUPTED OR ERROR-FREE. OR THAT DEFECTS IN THE SERVICES WILL BE
CORRECTED. (LICENSEE) DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING
THE USE OR THE RESULTS OF THE USE OF THE SERVICES OR RELATED DOCUMENTATION IN
TERMS OF THEIR CORRECTNESS, ACCURACY, QUALITY, RELIABILITY, APPROPRIATENESS
FOR A PARTICULAR TASK OR APPLICATION, OR OTHERWISE. NO ORAL OR WRITTEN
INFORMATION OR ADVICE GIVEN BY (LICENSEE) OR (LICENSEE)'S AUTHORIZED
REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF
THIS WARRANTY. YOU ARE ENTIRELY RESPONSIBLE FOR AND ASSUME ALL RISK FOR USE
OF THE SERVICE. YOU SHOULD NOT USE THE SERVICE IN HIGH-RISK ACTIVITIES WHERE
SUBSTANTIAL DAMAGE COULD RESULT IF AN ERROR OCCURRED. (LICENSEE) DOES NOT
WARRANT OR REPRESENT THAT ITS SECURITY PROCEDURES WILL PREVENT THE LOSS OF OR
IMPROPER ACCESS TO YOUI' DATA. (LICENSEE) IS NOT RESPONSIBLE FOR TRANSMISSION
ERRORS OR CORRUPTION OR SECURITY OF INFORMATION CARRIED OVER TELECOMMUNICATION
LINES.
8. Limitation of Liability: IN NO EVENT SHALL (LICENSEE) BE LIABLE TO YOU
OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING,
WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS
OF BUSINESS, LOSS OF PROFITS, LOSS OF GOODWILL OR BUSINESS REPUTATION,
BUSINESS INTERRUPTION, LOSS OF DATA, OR LOSS OF BUSINESS INFORMATION) ARISING
OUT OF OR CONNECTED IN ANY WAY WITH THIS AGREEMENT OR THE SERVICES, OR FOR ANY
CLAIM BY ANY THIRD PARTY (INCLUDING FOR INTELLECTUAL PROPERTY INFRINGEMENT),
EVEN IF (LICENSEE) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE
TOTAL LIABILITY OF (LICENSEE") TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF
ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL
NOT EXCEED THE TOTAL FEES PAID BY YOU TO (LICENSEE) IN THE THREE MONTHS PRIOR
TO THE EVENT CAUSING LIABILITY.
9. Exclusive Remedy. Your sole right and exclusive remedy for breach of this
Agreement by (LICENSEE) if you are dissatisfied for any reason with the
Service is to terminate this Agreement as provided herein.
10. Indemnity: You shall indemnify and hold (LICENSEE) harmless against any
and all liabilities, losses, damages, judgments, claims, causes of action, and
costs (including attorneys fees and disbursements) which (LICENSEE) may
hereafter incur, suffer, or be required to pay, defend, settle (subject to any
limitations set forth in this Agreement), or satisfy as a result of your use
of the Service, including the content of your Web site or any information
contained therein. To qualify for such defense and payment, (LICENSEE) must:
(i) provide you with prompt written notice of a potential third party claim;
and (ii) allow you to control, and fully cooperate with you in, the defense
and all related negotiations.
11. Choice of Law and Venue: This Agreement and Acceptable Use Policy shall be
governed by the law of Arizona. You agree that all actions or proceedings
arising in connection with this Agreement or Acceptable Use Policy shall be
tried and litigated exclusively in the state or federal (if permitted by law
and a pary elects to file an action in federal court) courts located in
Maricopa County, Arizona. This choice of venue is intended by the parties to
be mandatory and not permissive in nature, and to preclude the possibility of
litigation between the parties with respect to, or arising out of, this
Agreement or Acceptable Use Policy in any jurisdiction other than that
specified in this Section. Each party waives any right it may have to assert
the doctrine forum non conveniens or similar doctrine or to object to venue
with respect to any proceeding brought in accordance with this Section.
12. Arbitration. Except as provided below, any controversy or claim arising
out of or relating to this Agreement or Acceptable Use Policy, including,
without limitation, the interpretation or breach thereof, shall be submitted
to a panel of three (3) arbitrators in Phoenix, Arizona, in accordance with
the Commercial Arbitration Rules of the American Arbitration Association.
Such panel shall include only those persons with experience in the areas of
information technology and software. Each party shall choose one (1)
arbitrator, and the third arbitrator shall be chosen by the two (2)
arbitrators selected by the parties. The award of the arbitrators shall be
made in writing, with findings of fact and conclusions of law. The written
decision shall be final, binding, and convertible to a court judgment in any
appropriate jurisdiction. Notwithstanding the foregoing, this Section shall
not preclude either party from seeking temporary, provisional, or injunctive
relief from any court. In any action/arbitration brought under this
Agreement, the prevailing party shall be entitled to recover its actual costs
and attorneys' fees and all other litigation costs, including expert witness
fees, and all actual attorneys' fees and costs incurred in connection with the
enforcement of a judgment arising from any action or proceeding.
13. Modifications. (LICENSEE) may revise in its sole discretion this
Agreement and Acceptable Use Policy, without prior notice. Any such changes
shall be posted by (LICENSEE) on its Web site (▇▇▇.▇▇▇▇▇▇.▇▇▇). You shall be
responsible for periodically reviewing the online (LICENSEE) Hosting Agreement
and Acceptable Use Policy to apprise yourself of any changes thereto.
14. General Terms: Except as provided in this Agreement, any changes to this
Agreement must be in writing and signed by (LICENSEE) and you. Your rights
and obligations under this Agreement may not be assigned or transferred
without written permission of (LICENSEE). If any provision of this Agreement
is determined to be invalid, all other provisions will remain in force.
Notice or other communication between you and (LICENSEE) may be given by
conventional first-class mail or by e-mail. An electronic communication
appearing to be from the e-mail address you supply to (LICENSEE) establishes
you as its originator and has the same effect as a document with your written
signature on it. ▇▇▇▇▇.▇▇▇ shall be a third party beneficiary of your
obligations under this Agreement.
ACCEPTABLE USE POLICY
(LICENSEE) reserves the right in its sole discretion to remove any content for
any reason, including but not limited to, your violation of any laws or the
terms and conditions of' the Agreement for (LICENSEE) Service or this
Acceptable Use Policy. The Acceptable Use Policy below describes certain
actions relating to the content and operation of your Web site which
(LICENSEE) considers to be inappropriate and thus prohibited. The examples
identify in this list are in addition to the content identified in the
Agreement and are provided solely for your guidance. If you are unsure
whether any contemplated use or action is permitted, please contact
(LICENSEE). (LICENSEE)'s right to remove inappropriate content under this
Policy, shall not place an obligation on (LICENSEE) to monitor or exert
editorial control over your Web site.
Actions which (LICENSEE) considers inappropriate and grounds for removal of
offending material or termination of Service include, but are not limited to,
the following:
Using the Service to sell any products or services that are unlawful in
the location at which the content is posted or received or the products or
services delivered;
Using the Service to post any content that is obscene, lewd, lascivious,
pornographic, contains nudity or sexual acts, filthy, excessively violent,
harassing, or otherwise objectionable;
Using the Service to post any content that advocates, promotes or
otherwise encourages violence against any governments, organizations, groups
or individuals or which provides instruction, information or assistance in
causing or carrying out such violence;
Using the Service to post any content that holds (LICENSEE) (including
its affiliates), employees or shareholders up to public scorn or ridicule or
would in. anyway damage or impair (LICENSEE)'s reputation or goodwill;
Using the Service to post any content that violates any copyrights,
patents, trademarks, trade secrets, or other intellectual property rights of
others;
Failing to obtain all required permissions when using the Service to
receive, upload, download, display, distribute, or execute programs or perform
other works protected by intellectual property laws including copyright and
patent laws;
Deleting or altering author attributes, copyright notices, or other
copyright management information, unless expressly permitted in writing by the
author or owner;
Using the Service in a tortuous manner, including the posting of
libelous, defamatory, scandalous, threatening, harassing or private
information without the permission of the person(s) involved, or posting
content that is likely to cause emotional distress; or
Introducing viruses, worms, Trojan horses, or other harmful code on the
Internet.
In operating your Web site, you agree to assume sole responsibility for the
following:
Acquiring any authorization(s) necessary for hypertext links to third
party Web sites;
Using the Web site in a manner consistent with any and all applicable
laws and regulations, whether international, national, state, or local;
The accuracy of information and materials you provide for display on the
Web site, including, without limitation, descriptive claims, warranties,
guarantees, the nature of your business, and address where your business is
located; and
Insuring your Web site does not contain any content or materials that are
obscene, threatening, malicious, or defamatory or which infringe on or violate
any applicable law or regulation or any proprietary, contract, moral, privacy,
or other third party right, or which otherwise expose Provider to civil or
criminal liability.
(LICENSEE) may revise in its sole discretion this Acceptable Use Policy,
without prior notice. Any such changes shall be posted by (LICENSEE) on its
Web site (▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇). You shall be responsible for periodically
reviewing the online (LICENSEE) End-User Agreement and Acceptable Use Policy
to apprise yourself of any changes thereto. You agree to be bound by all such
changes. ▇▇▇▇▇.▇▇▇ shall be a third party beneficiary of your obligations
under this Agreement.
Exhibit E
PRICING/PAYMENT TERMS
LICENSEE shall pay ▇▇▇▇▇.▇▇▇ for use of the System by LICENSEE and
End-Users. Payment shall be based on the following terms:
1. Initial License Fee. On the Effective Date, LICENSEE shall issue and sell
to ▇▇▇▇▇.▇▇▇ eighty thousand (80,000) shares in LICENSEE common stock (ECEC),
subject to SEC Rule 144, par value of $0.0001.
2. Annual License Fee. On the Annual Anniversary of the Effective Date,
LICENSEE shall pay to ▇▇▇▇▇.▇▇▇ an Annual License Fee, as outlined below, for
tile right to receive upgrades, revisions and enhancements to the Class A
Programs.
Enterprise Suite 50 $ 5,000
3. Monthly License Fee. LICENSEE shall pay to ▇▇▇▇▇.▇▇▇ a Monthly End-User
License Fee for each End-User account of LICENSEE based on the following
amounts.
For For For
Standard Commerce Commerce
Accounts Accounts Plus Accounts
Enterprise Suite 50 $
6.25 $12.50 $25.00
For For For Standard Conunerce Commer Accounts Accounts Plus
Account- $ 6.25 $12.50 $25.
Payment of such Monthly License Fees are due within 30 days ftom the last
day of the previous month.
2. Installation Fee. Installation hours are included with the Initial
License Fee as set fourth in Exhibit G Maintenance and Support Obligations.
In the event additional professional services are required because of delays
caused by LICENSEE or a third party, such fees shall be charged at the rate of
$120 per hour.
3. Travel and Other Expenses. The fees set forth in this Exhibit do not
include travel, living, telecommunication charges, and all other out-of-pocket
expenses incurred by ▇▇▇▇▇.▇▇▇.
LICENSEE shall reimburse ▇▇▇▇▇.▇▇▇ for all such charges and costs.
Exhibit F
SITE
The physical initial site for the System shall be at ▇▇▇▇▇.▇▇▇, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
Exhibit G
MAINTENANCE AND SUPPORT OBLIGATIONS
1. ▇▇▇▇▇.▇▇▇'s Support Obligations.
During the Term, ▇▇▇▇▇.▇▇▇ shall provide the following maintenance and support
for the Class A Programs:
1.1 ▇▇▇▇▇.▇▇▇ shall provide LICENSEE with any Maintenance
Modifications and Enhancements for the Class A Programs. Notwithstanding the
foregoing, LICENSEE shall not be entitled to receive any substantially new or
rewritten versions or releases of the Class A Programs beyond ITOOL version
3.0. LICENSEE may purchase such versions or releases at ▇▇▇▇▇.▇▇▇'s then
current prices. Professional services fees, if any, for ▇▇▇▇▇.▇▇▇'s
assistance in installing and/or implementing any Maintenance Modifications or
Enhancements are not included in the yearly support fee set forth in Exhibit
E. Such fees shall be billed by ▇▇▇▇▇.▇▇▇ at its then current rates.
1.2 Provide LICENSEE with telephone and installation support as outlined
below. ▇▇▇▇▇.▇▇▇'s telephone support is available Monday through Friday, 9
a.m. to 5 p.m. in ▇▇▇▇▇.▇▇▇'s time zone.
Enterprise Suite 50 Total of 50 Hours per year.
Additional telephone support hours are available to LICENSEE and shall be
billed by ▇▇▇▇▇.▇▇▇ at its then current rates. All telephone support calls
will be billed at a one-half (1/2)-hour minimum per call.
1.3 ▇▇▇▇▇.▇▇▇ shall not be responsible for providing maintenance and support
to LICENSEE's End-Users.
1.4 Onsite support may be obtained from ▇▇▇▇▇.▇▇▇ at its then current rates.
1.5 ▇▇▇▇▇.▇▇▇ shall not be responsible for providing maintenance and support
services for items of software and hardware that it does not provide under
this Agreement.
1.6 ▇▇▇▇▇.▇▇▇ shall not be responsible for ensuring proper production and
storage of daily backup diskettes for the System data.
2. LICENSEE's Obligations.
LICENSEE shall have the following support responsibilities:
2.1 LICENSEE shall provide ▇▇▇▇▇.▇▇▇ with free and full access to the System
for purposes of rendering support, including, where appropriate, dedicated
modem access. Any time expended because of delays caused by LICENSEE in
providing ▇▇▇▇▇.▇▇▇ with such access to the System will be billed to LICENSEE
at ▇▇▇▇▇.▇▇▇'s then current time and material rates.
2.2 LICENSEE is responsible for (1) preparing and maintaining the location of
the Computer Equipment and communications facilities in accordance with the
specifications of the appropriate ▇▇▇▇▇.▇▇▇'s, (2) securing all required
permits, inspections, and licenses, (3) providing adequate personnel to assist
▇▇▇▇▇.▇▇▇ in carrying out its duties under this Agreement, (4) installing any
updates, corrections, or Maintenance Modifications to the Licensed Software,
and (5) complying with all applicable state and federal laws.
2.3 LICENSEE shall ensure the appropriate LICENSEE personnel have been
trained in the operation, support, and management of the System.
2.4 In the event LICENSEE requests support and the problem for which
▇▇▇▇▇.▇▇▇ was called to correct is determined to have been caused by equipment
or software not provided by ▇▇▇▇▇.▇▇▇ under this Agreement, LICENSEE shall be
billed at ▇▇▇▇▇.▇▇▇'s then current time and material rates for all time and
costs incurred in responding to the support request.
2.5 In the event LICENSEE requests support and the problem for which
▇▇▇▇▇.▇▇▇ was called to correct is determined to have been caused by abuse of
the System, unauthorized modifications to the System, operators using improper
operating procedures, LICENSEE shall be billed at ▇▇▇▇▇.▇▇▇'s then current
time and material rates for all time and costs incurred in responding to the
support request.
2.6 LICENSEE shall be solely responsible for maintaining all necessary backup
and recovery procedures to prevent loss of System data.
2.7 LICENSEE shall implement updates, corrections, and Maintenance
Modifications to the System within sixty (60) days of their general
availability, unless a delay is mutually agreed upon in writing by the
parties.
2.8 LICENSEE shall obtain at LICENSEE's expense all additional equipment,
latest level of third party software as designated by ▇▇▇▇▇.▇▇▇, and
professional services required in response to federal and state regulatory
change, or relating to updates, correction, and Maintenance Modifications of
the System.
2.9 LICENSEE shall be responsible for providing all maintenance and support
to its End-Users.