Software License Agreement

Software License Agreement

AGREEMENT by and between Licensor, and the customer identified below (the "Licensee").

1. License. In accordance with the terms herein, Licensor grants to Licensee, and Licensee accepts from Licensor, a perpetual non‑exclusive and non‑transferable license to use the current version of Licensor's KashLinks Software. The Software shall initially be used only on equipment and at location(s) identified in Schedule A as “Server Locations” to operate web sites identified in Schedule A as “Domain Names”. Use of the Software may be subsequently transferred to Server Locations maintained by Licensee at other locations, provided (1) the total number of Server Locations at which the Software is used by Licensee does not exceed the number of Server Locations specified in Schedule A, (2) the total number of servers at each location does not exceed the number specified in Schedule A, and (3) Licensee provides Licensor with written notice 90 days before such transfer.

2. Copies. The license(s) granted herein include(s) the right to copy the Software in non‑printed, machine readable form in whole or in part as necessary for Licensee's own business use subject to the limitations of paragraph 1. In order to protect Licensor's intellectual property rights including rights in trade secrets, patents, and copyrights in the Software, Licensee agrees to reproduce and incorporate Licensor's trade secret, trademark, patent, and/or copyright notice in any copies in whole or in part of the Software. Licensee shall maintain no more than three backup copies of object code for the Software for each Server Location at any time.

3. Price and Payment. Licensee shall make payment to Licensor for the Software license pursuant to the fees and payment terms set forth in Schedule B.

4. Title to Software and Confidentiality. The Software and all programs developed derived therefrom and all copies thereof are proprietary to Licensor and title thereto remains in Licensor. All applicable rights to patents, copyrights, trademarks, and trade secrets in the Software or any modifications made at Licensee's request are and shall remain in Licensor. Licensee shall not sell, transfer, publish, disclose, display or otherwise make available the Software or copies thereof to others. Licensee agrees to secure and protect each module, software product, documentation and copies thereof in a manner consistent with the maintenance of Licensor's rights therein and to take appropriate action by instruction or agreement with its employees or consultants who are permitted access to each program or software product to satisfy its obligations hereunder. All copies made by the Licensee of the Software and other programs developed hereunder, including translations, compilations, partial copies with modifications and updated works, are the property of Licensor. Licensee shall not attempt to modify or reproduce the functionality of the software in any way without prior written permission of the Licensee. Licensee acknowledges that violation of any provision of this license will irreparably harm Licensor and shall be the basis for immediate termination of this License Agreement and obtaining a permanent injunction.

5. Warranty.

(a) The Licensee must notify Licensor in writing, within thirty (30) days of delivery of the Software to the Licensee (not including delivery of any subsequent modifications to the Software), of any claim of defect. If the Software is found defective by Licensor, Licensor's sole obligation under this warranty is to attempt to remedy such defect in a manner consistent with Licensor's regular business practices.

(b) THE ABOVE IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY LICENSOR. LICENSOR MAKES AND LICENSEE RECEIVES NO WARRANTY EXPRESS OR IMPLIED AND THERE ARE EXPRESSLY EXCLUDED ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE STATED EXPRESS WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF LICENSOR FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE, OR PERFORMANCE OF THE SOFTWARE SYSTEMS.

(c) If Licensee attempts any unauthorized modifications to the Software, this warranty shall immediately be terminated. Correction for difficulties or defects traceable to Licensee's errors or systems shall be billed at Licensor's standard time and material charges.

(d) Licensee agrees that Licensor's liability arising out of contract, negligence, strict liability in tort or warranty shall not exceed any amounts payable by Licensee for the Software identified above.

6. Indemnity. Licensee must notify Licensor in writing within thirty (30) days of any notification of an alleged or actual claim that the Software infringes any rights of third parties including but not limited to patents, copyrights, license, or other property rights or Licensee waives any claim of indemnification, contribution, subrogation, or otherwise against Licensor. Licensor shall have the right, at its option, to control the defense of all such claims, lawsuits and other proceedings. In no event shall Licensee settle any such claim, lawsuit or proceeding without Licensor's prior express written approval. If, as a result of any claim of infringement against any patent, copyright, license or other property right, Licensor is enjoined from using the Software, or if Licensor believes that the Software is likely to become the subject of a claim of infringement, Licensor at its option and expense may procure the right for Licensee to continue to use the Software, or replace or modify the Software so as to make it non‑infringing. If neither of these two options is reasonably practicable Licensor may discontinue the license granted herein on one month's written notice and refund to Licensee the unamortized portion of the license fees hereunder (based on straight line depreciation over the license term, such depreciation to commence on the date of this Agreement). The foregoing states the entire liability of Licensor with respect to infringement of any copyrights or patents by the Software or any parts thereof.

7. Termination. Licensor shall have the right to terminate this agreement and license(s) granted herein:

(a) Upon ten days' written notice in the event that Licensee, its officers or employees violates any provision of this License Agreement including, but not limited to, confidentiality and payment;

(b) In the event Licensee (i) terminates or suspends its business; (ii) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute or (iii) becomes insolvent or becomes subject to direct control by a trustee, receiver or similar authority.

In the event of termination by reason of the Licensee's failure to comply with any part of this agreement, or upon any act which shall give rise to Licensor's right to terminate, Licensor shall have the right, at any time, to terminate the license(s) and take immediate possession of the Software and documentation and all copies wherever located, without demand or notice. Within five (5) days after termination of the license(s), Licensee will return to Licensor the Software in the form provided by Licensor or as modified by the Licensee whether authorized or unauthorized, or upon request by Licensor destroy the Software and all copies, and certify in writing under oath or affirmation that they have been destroyed. Termination under this paragraph shall not relieve Licensee of its obligations regarding confidentiality of the Software.

Without limiting any of the above provisions, in the event of termination as a result of the Licensee's failure to comply with any of its obligations under this License Agreement, the Licensee shall continue to be obligated for any payments due. Termination of the license(s) shall be in addition to and not in lieu of any equitable remedies available to Licensor.

(d) LICENSEE RECOGNIZES THAT TERMINATION OF THIS AGREEMENT AS A RESULT OF THE LICENSEE’S FAILURE TO COMPLY WITH ANY OF ITS OBLIGATIONS UNDER THIS LICENSE AGREEMENT, WILL RESULT IN IMMEDIATE AND IRREPARABLE HARM TO LICENSOR. IN THE EVENT OF SUCH TERMINATION, LICENSEE EXPRESSLY AUTHORIZES LICENSOR TO SEEK CANCELLATION AND/OR TRANSFER OF ANY OF LICENSEE’S REGISTERED DOMAIN NAMES BEFORE ANY REGISTRATION AUTHORITY OR IN ANY COURT OF LAW. LICENSEE FURTHER EXPRESSLY AUTHORIZES ANY DOMAIN NAME REGISTRATION AUTHORITY TO EFFECT SUCH TRANSFER OF ANY AND ALL DOMAIN NAMES REGISTERED IN THE NAME OF LICENSEE TO LICENSOR.

8. Taxes. Licensee shall, in addition to the other amounts payable under this License Agreement, pay all sales and other taxes, federal, state, or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this License Agreement. Without limiting the foregoing, Licensee shall promptly pay to Licensor an amount equal to any such items actually paid, or required to be collected or paid by Licensor.

9. Licensed Locations. Use of the Software by the Licensee at any location or for any domain name other than those described above in paragraph I shall be the basis for immediate termination of this License Agreement. Termination of the License Agreement shall be in addition to and not in lieu of any equitable remedies available to Licensor as specified in paragraph 7.

10. Custom Modifications. All custom modifications to the Software, not including assisting Licensee in implementation of the Software for a particular application, website, or domain, shall be undertaken by Licensor at its then current time and materials charges. For each custom modification requested, Licensee shall provide written specifications to Licensor, which shall be mutually agreed upon prior to commencement of such custom modification effort.

11. General.

(a) Each party acknowledges that it has read this Agreement, it understands it, and agrees to be bound by its terms, and further agrees that this is the complete and exclusive statement of the Agreement between the parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the parties relating to this Agreement. This Agreement may not be modified or altered except by written instrument duly executed by both parties.

(b) Dates or times by which Licensor is required to make performance under this license shall be postponed automatically to the extent that Licensor is prevented from meeting them by causes beyond its reasonable control.

(d) No action, regardless of form, arising out of this Agreement may be brought by Licensee more than two years after the cause of action has arisen.

(e) If any provision of this Agreement is invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted.

(f) The Licensee may not assign or sub‑license, without the prior written consent of Licensor, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part.

(g) Licensor shall have the right to collect from Licensee its reasonable expenses incurred in enforcing this agreement including attorney's fees.

(h) The waiver or failure of Licensor to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder.

(i) Licensee consents to personal jurisdiction in any judicial district in which any one or more of Licensee’s servers, web sites, or domains having the Software is accessible.

LICENSOR: LICENSEE:

Name:__________________________ Name:__________________________

(Print) (Print)

Address:_______________________ Address:_______________________

Signature:_____________________ Signature:_____________________

Title:_________________________ Title:_________________________

Date:__________________________ Date:__________________________