Forward Advantage End User Agreement

NOTICE: FORWARD ADVANTAGE, INC. (FAI) LICENSES ITS SOFTWARE TO LICENSEE ONLY UPON THE CONDITION THAT LICENSEE ACCEPT ALL OF THE TERMS CONTAINED IN THIS LICENSE AGREEMENT. PLEASE READ THE TERMS CAREFULLY BEFORE INDICATING ASSENT TO THEM. IF LICENSEE DOES NOT AGREE TO THESE TERMS, THEN FAI IS UNWILLING TO LICENSE THE SOFTWARE TO LICENSEE, IN WHICH EVENT LICENSEE SHOULD RETURN THE SOFTWARE WITH ACCOMPANYING DOCUMENTATION TO FAI WITHIN 30 DAYS OF PURCHASE FOR A REFUND.

1. License Agreement

The Software which accompanies the license (Licensed Software) is the property of FAI and is protected by the copyright laws of the United States, the State of California and other proprietary rights to FAI. While FAI continues to own the Licensed Software, Licensee has certain rights to use the Licensed Software after Licensee’s acceptance of this license. Notwithstanding the foregoing, this is a term-based Software license and shall commence on delivery of the Software and continue for the duration of the license term as indicated by the applicable Subscription Quote. At the end of such license term, if the Software license is not renewed by Licensee, then the license for this term-based Software shall terminate along with the Licensee’s rights to use said Software.

Except as may be modified by a license addendum which accompanies this license, the Licensee’s rights and obligations with respect to the use of the Licensed Software are as follows:

Licensee may:

a. use only one copy of the Licensed Software;

b. make one copy of the Licensed Software for archival purposes only. Each copy shall include in readable format any and all confidential, proprietary and copyright notices or marking contained on the original provided by FAI;

c. use other FAI software products in conjunction with the Licensed Software provided that Licensee has purchased a licensed copy of the software product to be used in conjunction with the Licensed Software;

d. Subject to written agreement by FAI, assign or transfer the Licensed Software on a permanent basis to another entity in the event of a sale, merger, or corporate re-organization of substantially all of the Licensee’s assets, and, provided that Licensee retains no copies of the Licensed Software and the assignee or transferee agrees to the terms of this agreement.

Licensee may not:

a. copy the documentation which accompanies the Licensed Software;

b. sublicense the Licensed Software;

c. use the Licensed Software to provide timesharing, service bureau, subscription or managed service, hosting, outsourcing, rental or similar services;

d. access the Licensed Software for the purpose of building a competitive product or service or copying its features or user interface;

e. reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover the source code of the Licensed Software, or create derivative works from the Licensed Software;

f. use the Licensed Software to send or store any infringing or unlawful material;

g. attempt to gain unauthorized access to, or disrupt the integrity or performance of the Licensed Software or the data contained therein;

h. alter or delete any notices contained in the Licensed Software or related documentation indicating Licensor’s proprietary rights;

i. use a previous version or copy of the Licensed Software after Licensee has received an upgraded version as a replacement of the prior version and has installed the replacement or upgraded version.

2. Limited Warranty and Disclaimer

The Licensed Software is made available under the terms of this License Agreement without express or implied warranties of any sort, including, specifically, any warranties relating to title, merchantability or fitness for a particular purpose and the performance or maintenance of the program. While every effort has been made to ensure accuracy, FAI will not be liable for technical or editorial errors or omissions contained in the system documentation. The information contained in this document is subject to change without notice.

IN NO EVENT WILL FAI BE LIABLE FOR ANY DAMAGES, INCLUDING LOSS OF DATA, LOST PROFITS, COST OF COVER OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING FROM THE USE OF THE PROGRAM OR ACCOMPANYING DOCUMENTATION, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF FAI OR AN AUTHORIZED RESELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. YOU ACKNOWLEDGE THAT THE LICENSE FEE REFLECTS THIS ALLOCATION OF RISK. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

3. Confidentiality

Licensee and FAI agree that they will take reasonable steps, at least substantially equivalent to the steps taken to protect their own proprietary information, to (i) prevent use of the other party’s Confidential Information for any purpose other than to carry out its rights and obligations hereunder, and (ii) prevent the disclosure of the other party’s Confidential Information other than its employees or contractors who must have access to such Confidential Information for such party to exercise its rights and perform its obligations hereunder and who each agree to be bound by agreements with a duty of confidentiality no less protective of confidential information than provided herein, Licensee and FAI shall be responsible to ensure that their employees, subcontractors, and consultants comply with the restrictions set forth herein. “Confidential Information” shall mean information furnished or made available directly or indirectly by the disclosing party to the receiving party which (a) is marked confidential, proprietary, or with a similar designation; (b) in the case of information given orally or visually, is reduced to a written summary marked with an appropriate restrictive legend and delivered to the receiving party within two (2) weeks after it is furnished hereunder or (c) should be reasonably understood by the receiving party to be the confidential or proprietary information of the disclosing party.

The obligations set forth in this section shall not apply with respect to any portion of the Confidential Information that: (i) was in the public domain at the time it was communicated to the receiving party; (ii) entered the public domain through no fault of the receiving party; (iii) is rightfully received by the receiving party from a third party without a duty of confidentiality; (iv) is independently developed by the receiving party without access to the Confidential Information; (v) consists of generalized ideas, concepts, know-how or techniques in intangible form that is incidentally retained in the unaided memories of persons who have had authorized access to Confidential Information (provided that this exception shall not be construed to grant to either party a license to the other party’s copyrights or patents beyond those otherwise granted in this Agreement); (vi) is disclosed under operation of law, except that the receiving party will disclose only such information as is legally required and will use reasonable efforts to obtain confidential treatment for any Confidential Information that is so disclosed and will provide the other party prompt notice of such possible disclosure prior to disclosure in order to allow an opportunity to contest such disclosure; or (vii) is disclosed with the other party’s prior written approval.

4. Term and Termination

a. Term. The term of this Agreement shall commence upon delivery of the Licensed Software to the licensee and continue for the duration of the Licensed Software term (as indicated in the applicable Subscription Quote). At the end of the Licensed Software term, if the Software license is not renewed by Licensee, then the license shall terminate. This Agreement may be canceled by FAI upon 30 days prior written notice, if Licensee is in breach of any of its material obligations hereunder and the breach is not remedied within the notice period.

b. Effect of Termination. The termination of this Agreement shall not relieve Licensee or FAI from its obligations to pay any sums accrued under this Agreement prior to such termination and the rights and obligations under any provisions hereof that contemplate performance subsequent to any termination of this Agreement, including without limitation the provisions regarding Confidentiality, Limitation of Liability, shall survive termination of this Agreement without limiting the foregoing. In no event shall any fees for the Software, including any pre-paid fees for the term-based Software, be refunded to Licensee. Upon termination of this Agreement, both Licensee and FAI shall promptly, and in any event within thirty (30) days following termination, return to the other party all property and Confidential Information belonging to the other, in all forms partial and complete, or, to the extent such return is not reasonably practical, will destroy the foregoing and provide the originating party with a certificate by an officer of the company certifying destruction.

5. Export Restrictions

a. EXPORT RESTRICTIONS. Licensee is solely responsible for complying with applicable export and import regulations, securing any necessary export or import license(s), obtaining local customs clearance and paying all duties, taxes and other charges. Licensee represents and warrants to FAI that it will not export the Software or any portion thereof in violation of applicable laws or regulations. Licensee agrees to indemnify and hold FAI harmless from and against claims, losses, costs, or liability, arising in connection with a breach of this Section.

6. GENERAL

This Agreement contains the entire agreement between FAI and Licensee with respect to the transactions contemplated by this Agreement and supersedes all prior and contemporaneous agreements, representations and understandings, whether written or oral. No modification or waiver of any provision hereof is effective unless in writing and signed by FAI and Licensee. No failure or delay by FAI or Licensee in exercising any right or remedy hereunder will operate as a waiver of same.

This Agreement is binding upon and inures to the benefit of the FAI and Licensee, their successors and permitted assigns. Neither FAI nor Licensee may assign or transfer its rights hereunder without the other party’s prior written consent.

This Agreement and the rights and obligations of the FAI and Licensee will be governed by and construed in accordance with the laws of the State of California in the United States.