SOFTWARE LICENSE AND SUPPORT AGREEMENT

THIS SOFTWARE LICENSE AND SUPPORT AGREEMENT (this “Agreement”) is an agreement by and between 360Science, Inc., a Texas corporation located at 3001 South Lamar Blvd, Suite A-101, Austin, TX 78704 (the “Licensor”) and the customer referred to in the Order Confirmation (the “Licensee”).
RECITALS

1. Licensor has developed and owns all Intellectual Property Rights in and to certain Software used in the field of Data Cleansing.
2. The Licensee wishes to license the foregoing Software from the Licensor on the terms and conditions set forth below.

AGREEMENT
1. Definitions
In this Agreement, the following expressions shall have the following meanings:

“Charging Rates” – the Licensor’s personnel charges negotiated from time to time plus any costs agreed upon in writing in respect of any materials provided.

“Documentation” – any user guides, manuals and help files contained within the Software which are applicable to the Software.

“Effective Date” – the date specified in the Order Confirmation from which rights hereunder are granted.

“Initial Activation Period” – a 30 day period commencing on the Effective Date of the Order Confirmation.

“Initial License Fee” – the Initial License Fee specified in the Order Confirmation.

“Initial License Period” – the initial License period specified in the Order Confirmation.

“Intellectual Property Rights” – all intellectual property rights, including but not limited to all copyrights, database rights, patents, registered and unregistered design rights, topography rights, trademarks and service marks, trade names, and applications for any of the foregoing, as well as all trade secrets, know-how, rights to confidence and other intellectual and industrial property rights in all parts of the world.

“License” – the license to use the Software hereby granted.

“License Pack” – the booklet or PDF file containing this Agreement and any Third Party Licenses.
“License Period” – the Initial License Period specified in the Order Confirmation, or any subsequent period of the same duration commencing on a Renewal Date.

“Module” – a specific product licensed by the Licensor to the Licensee as identified in the Order Confirmation.
“New Versions” – new releases of the Software or interim corrections, by-passes or revisions to the Software supplied pursuant to this Agreement, which in the Licensor’s reasonable opinion provide no material additional functionality to the Software.

“Order Confirmation” – the completed form entitled “Software and Data Order Confirmation”.

“Quality Assurance Checks” – procedures which are appropriate to determine that each output of data by the Software, whether in electronic or paper form, is correct for the particular purpose of the Licensee, such checking procedures to include, but not be limited to, any quality assurance procedures described in the Documentation.

“Renewal Date” means the date of expiry of the Initial License Period or of any subsequent License Period.

“Renewal Fee” means the fee specified as such in the Order Confirmation, subject to any increases pursuant to Clause 2.10 below.

“Sales Taxes” – all local, state and federal excise, sales, use, personal property, gross receipts and similar taxes (excluding taxes imposed on or measured by the Licensor’s net income) levied or imposed by any jurisdiction by reason of the transactions under this Agreement (including but not limited to the grant of the License).

“Services” – the provision by the Licensor to the Licensee of technical support services in accordance with Clause 3 below.

“Software” – the Licensed Software identified in the Order Confirmation, including any modifications thereto and updates thereof (including Upgrades and New Versions) provided by the Licensor together with any manuals or other materials supplied by the Licensor ancillary thereto.

“Third Party License” – the terms and conditions imposed by a third party in relation to the use of certain Third Party Products that may be supplied by the Licensor to the Licensee.

“Third Party Products” – software manufactured or data compiled by third parties as provided pursuant hereto by the Licensor to the Licensee. Third Party Products may  include address verification modules and software components that are subject to any open-source copyright license agreement.

“Upgrade” – an update to the Software that materially increases the functionality of the Software, which is generally marketed by Licensor as a separate product from the Software or optional module of the Software, which does not replace any part of the Software in Licensor’s product line, and which carries a separate license fee.

“Upgrade Fee” – the additional license fee payable for an Upgrade calculated in accordance with the Licensor’s then-current rate structure.

“User Parameters” – any parameters of use specified in the Order Confirmation.

“Virtual Processor” – A Processor in a virtual (or otherwise emulated) hardware system. Virtual Operating System Environments use Virtual Processors. For licensing purposes, a Virtual Processor is considered to have the same number of threads and cores as each physical processor, and require the same licensing.

“Working Hours” – 9am to 5pm CST on weekdays (excluding federal holidays).

“2.   License
2.1   On and in consideration of the terms and conditions set forth in this Agreement, including the payment of the Initial License Fee as provided in Clause 2.7, the Licensor hereby grants to the Licensee a non-exclusive, non-transferable (subject to Clause 10.4) License during the License Period, for object code only, to use the Software for its internal business purposes only. Unless specifically allowed for in the Order Confirmation, Licensee’s internal business purposes shall be deemed not to include use as a service to third parties. The Software shall be used strictly in accordance with the User Parameters and shall also be subject to any special conditions specified in the Order Confirmation.

2.2.  Third Party Products may be subject to associated Third Party Licenses, in which case copies of the Third Party Licenses are included in the License Pack. Unless specifically allowed in the Order Confirmation, Third Party Products may be used solely as integrated within the Software.

2.3   The Licensee shall be entitled to purchase from the Licensor any available Upgrades at the Licensor’s then current prevailing prices.  Such additional licensing and any associated fees shall be agreed upon in writing by the parties. The License of any Upgrade made available to the Licensee shall terminate immediately, and the Licensee shall have no further rights with respect thereto, if payment of the associated Upgrade Fee by the Licensee is not made by the due date in the invoice therefor. The Licensor will notify Licensee in writing when terminating the License for the Upgrade for this reason.

2.4   Any use of the Software otherwise than in accordance with Clause 2.1 shall be only with the Licensor’s prior written consent in its sole discretion, and shall be subject to payment by the Licensee of an additional license fee agreed to by the parties.

2.5   The Licensee agrees not to alter, modify, reverse engineer, decompile, disassemble, de-encrypt, create any derivative work of, copy rent, electronically distribute (including but not limited to telephone, cable, or broadcast signals), or market by interactive cable, remote processing services, micro-mainframe link-ups, or multi-user local area network machines, (other than as expressly provided herein) the Software or any portion thereof.  In particular, the Licensee shall not (i) permit any third party to use the Software or (ii) allow access to or use of the Software other than on the Licensee’s own hardware, whether by the Licensee or its employees or by any third party, other than as expressly provided herein.

2.6   On return of the Order Confirmation signed by the Licensee, the Licensor shall make available to the Licensee a temporary activation code which will enable use of the Software by the Licensee for the Initial Activation Period. Notwithstanding the foregoing, all other terms and provisions of this Agreement shall continue to be in force during the Initial Activation Period, and afterwards as applicable.

2.7   The Initial License Fee and all Sales Taxes are due for payment by the end of the Initial Activation Period, unless other payment terms are set forth in the Order Confirmation. Notwithstanding the foregoing, any Sales Taxes assessed after the Initial Activation Period shall be paid by the Licensee promptly after such assessment (including any Sales Taxes which are initially paid on the Licensee’s behalf by the Licensor).

2.8   If payment of the Initial License Fee and all Sales Taxes then assessed have not been received by the Licensor by the end of the Initial Activation Period, at the discretion of the Licensor, the Software will cease to function on or after the expiry of such period until such time as payment is received.

2.9   In the event of non-payment of the Initial License Fee as described in Clause 2.8 above, the Licensee shall remain liable to pay the entire Initial License Fee, notwithstanding the fact that the Software has ceased to function pending payment. Once the Initial License Fee has been paid, Licensor shall restore full functionality to the Software.

2.10 The Licensee may extend this License before the expiry of any License Period by paying the Renewal Fee. The Licensor shall be entitled to increase the Renewal Fee with effect from the next License Period, subject to 60 days’ prior written notice to the Licensee; provided that any such increase shall be limited to the greater of the increase in the CPI compounded annually since the last such increase and any increase in royalties imposed by a Third Party on the Licensor.  For the avoidance of doubt, the Licensee shall not be obliged to extend the License. The Licensor shall issue a valid invoice for the extension of the License at least 30 days prior to the next Renewal Date.

2.11 Subject to Clause 2.7, if the Licensee fails to timely pay any sum due under this Agreement and there is no good faith dispute regarding such sum, the Licensor shall be entitled to charge daily interest on all overdue amounts from the date of such failure until payment at the maximum rate allowed by law, or, if there is no such maximum rate, at eighteen (18) per cent per annum.

2.12 For the purposes of this Agreement, time of payment by the Licensee shall be of the essence.

3.   Services
3.1   In consideration of the payment of the Initial License Fee or Renewal Fee and any other fees payable pursuant hereto by the Licensee to the Licensor, the Licensor shall provide to the Licensee the services set out in Clauses 3.2 to 3.3.

3.2   The Licensor shall supply to the Licensee free of charge any available New Versions, and the Licensee undertakes to implement any New Versions supplied by the Licensor as soon as practicable or to notify the Licensor of reasons why it will not do so.

3.3   The Licensor shall provide a telephone and email advice line during Working Hours for technical support, through which the Licensor shall use its reasonable endeavors to ensure that the Software (including New Versions and Upgrades) performs substantially in accordance with the Documentation by diagnosing and correcting any inherent material defect, error or other non-conformity in the Software, and to answer the Licensee’s questions about usage of the Software.

3.4   The Licensor does not provide technical support for the following:

1. The systems (software or hardware) on which the Software is running;
2. Any other software, hardware or data interacting with the Software; or

iii. Any modifications made to the Software, other than those made by the Licensor.

3.5   Licensor will provide such support for up to five (5) designated contacts of Licensee (“Support Contacts”).  Licensee may modify its designated Support Contacts at any time upon 10 days prior written notice to Licensor. To invoke technical support, the Licensee must follow any additional reasonable written notification procedures provided to the Licensee by the Licensor.

3.6   If the Licensor is unable to provide diagnosis and correction pursuant to Clause 3.3 for reasons other than unavailability of Licensor personnel then the Licensee shall send, deliver or make available to the Licensor at the Licensee’s expense electronic records exhibiting the fault or defect together with any documentary or other evidence of the fault reasonably requested by the Licensor and a detailed description of the circumstances in which it arose as well as any other assistance which the Licensor may reasonably request to substantiate the existence or discover the cause of such fault.

3.7   The Licensor will be entitled to charge the Licensee additional charges at its Charging Rates for time which in the reasonable opinion of the Licensor it spends in relation to or on account of any of the following:

1. data restoration and/or re-establishment or other assistance required by the Licensee which was not the result of Software errors;
2. setting up the Software on replacement hardware;
3. providing the Services outside the Working Hours;
4. providing any other services not covered herein; or
5. installing any New Versions or Upgrades for the Licensee.

Any additional charges pursuant to sub-clauses a.-e. above are subject to prior written approval from the Licensee.

3.8   The Licensor will also be entitled to charge the Licensee additional charges at its Charging Rates for time which in the reasonable opinion of the Licensor it is spending an excessive amount of time providing support to the Licensee in relation to or on account of any of the following:

1. inadequate back-up procedures;
2. failure by the Support Contacts to have referred to specific parts of the Documentation, which parts have been brought to the Licensee’s attention by the Licensor prior to the call for technical support;
3. repeated requests for support covering points which have been explained by the Licensor during previous calls for technical support;
4. repeated requests for support concerning aspects of the operation of the Software that are standard features of the computer’s operating system and are not specific to the Software; or
5. providing the Services to the Licensee where such support would in the Licensor’s reasonable opinion have been unnecessary if the Licensee had implemented New Version(s) made available to the Licensee prior to the request for technical support pursuant to Clause 3.3 above.

Any additional charges for support pursuant to sub-clauses a.-e. above are subject to prior written approval from the Licensee; provided that Licensor may i) suspend such support pending approval or ii) withhold such support if Licensee does not approve such charges.

3.9   Where the Licensee wishes the Licensor to effect modifications to the Software, provide training or any other services not covered herein, the parties shall agree to such services and any associated fees in writing prior to any such services being provided.

3.10 Subject to a separate Hosting Addendum entered into by the Licensor and Licensee and Licensee’s payment of any additional fees set forth in the Hosting Addendum, Licensor will host the Software for Licensee.

4.   Warranties
4.1   The Licensor represents and warrants that (a) the Software as initially provided by the Licensor to the Licensee under Clause 2.6 (and for which the Initial License Fee and all Sales Taxes have been paid) will perform substantially in accordance with the Documentation for a period of 12 months from the Effective Date, (b) any Upgrades for which payment of the associated Upgrade Fee has been paid will perform substantially in accordance with the Documentation for a period of 6 months from the date the Upgrade was first made available to the Licensee, (c) to its knowledge, the Software will not infringe upon the copyright, database right, patent, trade mark rights or other Intellectual Property rights or confidential information of any person or entity, and (d) the Software is enabled through the use of activation codes limiting its use to the Initial Activation Period and subsequent License Periods but with this exception does not contain any malicious code, including and without limitation, any viruses, disabling code, time bombs, or Trojan horses. The provision of a New Version does not extend this warranty.  For the avoidance of doubt, this warranty will not extend to i) the direct or indirect effects of any modifications to the Software, ii) to any abuse, accident or misapplication of the Software by the Licensee or any third party, or iii) any superseded version of the Software when a New Version is available.  The Licensee’s exclusive remedy against the Licensor for breach of the warranties identified in this Clause 4.1(a) and (b) shall be, at the Licensor’s discretion:

(a) correction of any error or defect in the Software as to which Licensee has given notice,

(b) at no additional cost to licensee, replacement of the Software involved, or

(c) refund of any fees paid by the Licensee for use of the Software during the twelve months immediately prior to the date at which Licensee has given notice of the error or defect in the Software, and termination of this Agreement.

4.2   Any failure to implement a New Version within 90 days of being notified by the Licensor of its availability:

(a) will absolve the Licensor from any liability for loss or damage sustained by the Licensee which directly results from continued usage of the superseded version of the Software; and

(b) may result in the Licensor being unable to provide the Services effectively.

4.3  The Licensor warrants and undertakes to the Licensee to perform the Services with reasonable care and skill and to make reasonable efforts to do so in a timely manner.

4.4  The Licensee hereby warrants that it has not been induced to enter into this Agreement by any prior representations, whether oral or written (except as expressly contained in this Agreement), and the Licensee hereby waives any claim for breach of any such representations.

4.5  Except as provided in Clause 4.1 and 4.3, the Software and Services are provided “as-is”, and the Licensor specifically disclaims all other warranties, either express or implied, with respect to the Software and Services, including but not limited to implied warranties of merchantability or fitness for a particular purpose, and implied warranties arising from course of performance, course of dealing or usage of trade.  In particular and without limitation: (a) Third Party Products are provided “as-is”, and the Licensor specifically disclaims all warranties, either express or implied, with respect to Third Party Products, (c) the Software has not been written to meet the individual requirements of the Licensee and it is the sole responsibility of the Licensee to satisfy itself prior to the expiry of the Initial activation period that the software will meet its requirements and be compatible with its hardware/software configuration, and (b) the licensee acknowledges that it is not practicable for the Licensor to check out all combinations of software parameters, user data and user choices in the Licensor’s testing of the Software prior to delivery and that the duty of care in checking each and every output from the Software rests solely with the Licensee.

5.   Limitation of Liability
5.1   The Licensor is not liable under any circumstances for any special, indirect, incidental, consequential or punitive damages, or loss of revenue, profits, data or goodwill howsoever arising, suffered by the Licensee, or for any lost or wasted management time, business interruption, failure to make anticipated savings or liability of the Licensee to any third party arising in any way in connection with this Agreement or otherwise, whether or not such loss was foreseeable or was discussed by the parties pre-contract, or on any account for costs or expenses arising from such damage or loss.

5.2   The Licensor shall not be liable for any loss or damage of whatsoever nature suffered by the Licensee arising out of or in connection with any breach of this Agreement by the Licensee or any act, misrepresentation, error or omission made by or on behalf of the Licensee (including without prejudice to the generality of the foregoing, use of the Software by someone with inadequate understanding or experience, use of the Software not in accordance with the Documentation or failure to exercise appropriate quality assurance checks on any output from the Software) or arising from any cause beyond the Licensor’s reasonable control.

5.3   notwithstanding any other provision of this Agreement, no matter how many claims are made and whatever the basis of such claims (whether in contract, tort, for product liability or otherwise), the Licensor’s maximum aggregate liability to the Licensee under or in connection with this Agreement (excluding indemnification claims under clause 6) shall not exceed a sum equal to twice the Initial License Fee paid by the Licensee.

6.   Indemnification
6.1   The Licensor agrees to defend, indemnify and hold the Licensee harmless against any damages finally awarded or paid in settlement of any third party claim, demand, or suit asserting that the Software infringes or violates any copyright, patent, trade secret, trademark, or proprietary right existing under the laws of the United States or any state or territory thereof (“Claim”), provided that the Licensee has complied with its obligations under this Agreement and used the Software in accordance with the Documentation, and provided further that the Licensor shall not be liable hereunder for any claim arising from or based upon the combination, operation, or use of any of the Software with programming not supplied by the Licensor, or arising from the Licensee’s modification of the Software.

6.2   The indemnification obligation in this section shall be effective only if (1) at the time of the alleged infringement, the Licensee was using a currently supported version of the Software, (2) the Licensee gave reasonably prompt notice of the Claim and permitted the Licensor to defend such Claim, and (3) the Licensee has reasonably cooperated in the defense of the claim.

6.3   To reduce or mitigate damages, the Licensor may at its own expense procure the right for the Licensee to continue licensing the Software or replace it with a non-infringing product with fully equivalent features and functionality.  If the Licensor supplies a non-infringing release of the Software, the Licensee shall promptly install it on its computer system, and terminate use of prior releases of the Software. If, in its judgment, the Licensor deems that, due to the Claim or for any other reason, it is not in the Licensor’s practical interest to continue distributing the Software, the Licensor may require the Licensee, upon thirty (30) days written notice, to terminate use of the Software.  Thirty days after notice to terminate use of the Software, this Agreement shall terminate as to the Software involved and the Licensee shall receive a refund of the Initial License Fee.  The foregoing is the Licensee’s exclusive remedy against any and all parties for any claim arising under this Clause 6.

7.   Confidentiality, Copying and Intellectual Property Rights
7.1   The Licensee acknowledges that the expressions contained in the Software and any particulars thereof provided to the Licensee by the Licensor should be treated as confidential.  The Licensee undertakes not to divulge such information to a third party and only to divulge such information to its associated agents and employees as is strictly necessary to enable it to be used in accordance with and for the purposes hereof.  The Licensee acknowledges that the terms of this Clause and Clause 5 shall survive the termination of this Agreement for any reason whatsoever.

7.2   The Licensor shall be entitled to disclose without restriction the name of the Licensee as a user of the Software.

7.3   The Licensee may make one copy of the Software for back-up purposes and otherwise shall not duplicate or reproduce the Software in whole or in part, or allow any third party to do so.  All copies of the Software delivered to or made by the Licensee remain the property of the Licensor.

7.4   The Licensee acknowledges that it obtains no Intellectual Property Rights whatsoever in any Software or Documentation by virtue of this Agreement except for the limited license to use the same as provided in Clause 2.1.

7.5   The Licensee undertakes not to remove, delete or obscure any copyright or confidentiality notices on or in the Software, and to ensure the accurate reproduction of the same on any copies of the Software which it is entitled to make in accordance with the terms hereof.

8.  Termination

• The License shall continue for the Initial License Period and thereafter for succeeding License Periods unless and until the Licensee does not extend the License pursuant to Clause 2.10 or this Agreement is terminated in accordance with the provisions of this Clause 8. If the Licensee does not extend the License, it will expire on the cessation of the applicable License Period.

8.2   Either party may terminate this Agreement immediately by written notice to the other in the event that any of the following occur:-

(i)   without prejudice to Clause 2.8 above, the other fails to pay any amount due hereunder within 30 days of its due date or breaches any material term of this Agreement and such breach is incapable of remedy or continues for a period of 30 days after notice requiring the same to be remedied has been given by the terminating party to the other party or

(ii)  the other party (a) becomes insolvent or makes an assignment for the benefit of creditors, (b) files or has filed against it any petition under the United States Bankruptcy Code or any applicable bankruptcy, insolvency, reorganization or similar debtor relief law which is not discharged within thirty (30) days of said filing, or (c) requests or suffers the appointment of a trustee or receiver, or the entry of an attachment or execution as to a substantial part of its business or assets.

8.3   The Licensor may terminate this Agreement forthwith if the Licensee breaches Clause 10.4 hereunder.

8.4   Termination of this Agreement shall be without prejudice to any other rights or remedies of the terminating party.

8.5   Within 30 days following the termination of this Agreement, the Licensee shall return to the Licensor any physical copies of the Software and Documentation and provide a letter certifying destruction of any intangible copies made thereof.

9.   Audits
9.1.  Licensor or its nominee (including its accountants and auditors) may inspect and audit Licensee’s use of the Software under this Agreement at any time during the Term. Licensee shall make available all such books, records, equipment, information and personnel, and provide all such cooperation and assistance, as may be requested by or on behalf of Licensor with respect to such audit.

9.2.  If the audit determines that Licensee’s use of the Software exceeded the User Parameters, Licensee shall pay to Licensor all amounts due for such excess use of the Software, plus interest on such amounts, as calculated pursuant to Clause 2.11. If the audit determines that such excess use equals or exceeds 5% of any User Parameter, Licensee shall also pay to Licensor all costs incurred by Licensor in conducting the audit. Licensee shall make all payments required under this Section 9.2 within 30 days of the date of written notification of the audit results.

10.   General
10.1 Subject to Clause 10.2, this Agreement together with the Order Confirmation constitutes the entire agreement between the parties relating to the subject matter hereof. Neither party has relied on any representation made by the other party unless expressly included herein.

10.2 No alteration or modification to this Agreement shall be valid unless in writing and signed by a duly authorized signatory of each party.

10.3 If any provision of this Agreement or part thereof shall be void for whatever reason, it shall be deemed deleted or modified (to the least extent necessary to comply with applicable law) and the remaining and/or modified provisions shall continue in full force and effect.

10.4 The rights and obligations of the Licensee under this Agreement are personal to the Licensee and the Licensee undertakes that it shall not, without the prior written consent of the Licensor in its sole discretion, assign, sublicense, or otherwise transfer such rights and obligations in whole or in part; provided that the Licensee may, without consent but upon thirty (30) days advance written notice to the Licensor, wholly assign such rights and obligations to:

• (i) a company which purchases substantially all of the assets of the Licensee;
• (ii) a company whose assets are all (or substantially all) purchased by the Licensee;
• (iii) or the entity resulting from a merger between the Licensee and another company.

However any such assignment shall be subject to the following conditions:

• if the number of users increases or User Parameters are exceeded, the Licensor may charge additional Initial License Fees and Renewal Fees to reflect this;
• in the event of a transfer to a subsidiary, the Licensee shall have no further right itself to use the Software unless it agrees terms to do so with the Licensor.

10.5 The Licensor reserves the right to sub-contract any of its obligations hereunder.  The Licensor will not be relieved of any of its obligations under this Agreement by entering into any sub-contract for the performance of any of its obligations and will at all times remain primarily responsible and liable to the Licensee for the conduct of any of the Licensor’s sub-contractors.

10.6 Any notice given pursuant hereto must be sent by courier to the addresses given herein or the Order Confirmation.  Such notice shall be deemed to have been duly served upon and received by the addressee at the time that courier records delivery.

10.7 Neither party shall be liable for any loss suffered by the other party or be deemed to be in default for any delays or failures in performance hereunder (other than in relation to payment) resulting from acts or causes beyond its reasonable control or from any acts of God, acts or regulations of any governmental or supra-national authority.

10.8 Any delay or forbearance by either party in enforcing any provisions of this Agreement or any of its rights hereunder shall not be construed as a waiver of such provision or right thereafter to enforce the same.

10.9 This Agreement shall be governed, construed and performed in accordance with the laws of Texas, exclusive of its choice of law provisions. The “United Nations Convention on Contracts for the International Sale of Goods” shall not apply to this Agreement.  Any cause of action arising out of or related to this Agreement may only be brought in the courts of applicable jurisdiction in Texas in Travis County, and the parties hereby submit to the jurisdiction and venue of such courts.

10.10 The parties recognize that money damages are not an adequate remedy for any breach or threatened breach of any obligation hereunder by the Licensee involving the Licensor’s Intellectual Property Rights or the use of the Software beyond the scope of the License granted by this Agreement.  The parties therefore agree that, in addition to any other remedies available hereunder, by law or otherwise, the Licensor shall be entitled to an injunction against any such continued breach by the Licensee of such obligations.