Gate One Software License Agreement - Per-User, Per-Year

SOFTWARE LICENSE AGREEMENT

This Software License Agreement ("Agreement") is made as the date of invoice (the "Effective Date") between Liftoff Software Corporation, a company with an address at 731 Duval Station Road Suite 107 - 286, Jacksonville, FL 32218 ("Party-1"), and you, an individual or a business entity purchasing a commercial license to Gate One ("Party-2").

This Agreement describes Party-2's purchase of Services and Deliverables from Party-1.

Party-1 and Party-2 therefore agree as follows:

1. DEFINITIONS.

(a) "Deliverables" means the deliverables Party-1 provides to Party-2 as described in this Agreement.

(b) "Government Authority" means any governmental authority or court, tribunal, agency, department, commission, arbitrator, board, bureau, or instrumentality of the United States of America or any other country or territory, or domestic or foreign state, prefecture, province, commonwealth, city, county, municipality, territory, protectorate or possession.

(c) "Law" means all laws, statutes, ordinances, codes, regulations and other pronouncements having the effect of law of any Government Authority.

(d) "Services" means the services Party-1 provides to Party-2 as described in this Agreement.

(e) "Software Deliverables" means the software described in this Agreement.

2. SERVICES. Party-1 agrees to provide the following Services: Technical support and software updates.

3. DELIVERABLES. Including the Software Deliverables described below, Party-1 agrees to provide the following Deliverables: Gate One Software, Commercial Licensing (1 year).

4. SOFTWARE DELIVERABLES.

(a) License Grant. Party-1 grants Party-2 a non-exclusive, worldwide, non-transferable, and non-sublicenseable license to use the Software Deliverables for Party-2's internal business purposes during the Term. This license shall serve to free Party-2 from the obligations of any publicly-available, open source license under which Party-1 has licensed the deliverables.

(b) License Type. All Party-2 employees may exercise the Software Deliverables license. The Software Deliverables license allows: (i) any Party-2 affiliate to access and use the Software Deliverables to the full extent of the rights granted to Party-2 under this Agreement; and (ii) any third party contractor of Party-2 or any Party-2 affiliate, to exercise the Software Deliverables license on Party-2's and/or its affiliate's behalf, solely for Party-2's or the applicable Party-2 affiliate's internal business purposes only. Under this Agreement, "affiliate" means: (a) any entity controlled by a party to this Agreement; or (b) any entity which controls a party to this Agreement; or (c) any entity controlling or under control of another entity described in (a) or (b). In this definition, "control" means owning or controlling the right to vote fifty one percent (51%) or more of the voting stock or voting equity interests of an entity.

(c) Location. Subject to any license grant requirements, Party-2 may install and use the Software Deliverables on any computer system(s) or central processing unit(s) selected by Party-2 from time to time.

(d) Copies. Party-2 may make an unlimited number of copies of each of the Software Deliverables. In making copies of the Software Deliverables, Party-2 may not remove any copyright or other proprietary rights notices contained in or placed upon the Software Deliverables by Party-1.

5. OWNERSHIP, TITLE AND RISK OF LOSS. Ownership of, title to, and risk of loss for the Deliverables passes to Party-2 upon acceptance of the Deliverables by Party-2. However, ownership, title and risk of loss for the Software Deliverables applies to the copy only and does not extend to the intellectual property and other proprietary rights in the Software Deliverables. Additionally, if any Software Deliverables are downloaded, ownership of, title to, and risk of loss passes to Party-2 upon Party-2's complete download of the Software Deliverables.

6. FEES. Except as expressly stated in this Agreement, there are no additional fees, charges or expenses incurred. In consideration for Party-1 providing each of the following, Party-2 agrees to pay Party-1 as follows: $30 per user per year for every user Party-2 wishes to be licensed under this agreement. This fee may be reduced in order to facilitate sales, volume discounts, or other factors solely at the discretion of Party-1. If such a discount applies the fee presented to Party-2 at the time of purchase shall override the value in this agreement. If any affiliate of Party-2 gives notice to Party-1 of an offer to make a purchase from Party-1 under the same fees, terms and conditions stated in this Agreement, then Party-1 agrees to offer to accept each such offer. Under this Agreement, "affiliate" means: (a) any entity controlled by a party to this Agreement; or (b) any entity which controls a party to this Agreement; or (c) any entity controlling or under control of another entity described in (a) or (b). In this definition, "control" means owning or controlling the right to vote fifty one percent (51%) or more of the voting stock or voting equity interests of an entity.

7. INVOICES AND TAXES. Party-2 agrees to pay to Party-1 all fees owed under this Agreement within thirty (30) days after the date of Party-2's receipt of a complete invoice. A complete invoice is one that contains the invoice number, invoice date, description of the transaction, total invoice amount with miscellaneous charges listed separately and payment terms consistent with and not additional to any provisions under this Agreement. To the extent that the transactions under this Agreement are subject to any sales, use, value added or any other taxes, payment of these taxes, if any, is Party-2's responsibility. Party-1 is liable for any and all taxes on any and all income it receives under this Agreement.

8. WARRANTIES.

(a) Mutual Warranties. Each party represents, warrants and covenants to the other that:

(i) General. It: (a) is a company duly organized and validly existing and in good standing under the Laws of its jurisdiction of organization; (b) is qualified or licensed to do business and in good standing in every jurisdiction where qualification or licensing is required; and (c) has the corporate power and authority to negotiate, execute, deliver and perform its obligations under this Agreement.

(ii) Law Compliance. It complies with all applicable Laws.

(b) Warranties by Party-2. Party-2 represents, warrants and covenants to Party-1 that:

(i) Warranty Length. For a period of one (1) year after receipt, the Services and Deliverables conform to the requirements of this Agreement and are free of all liens, claims and encumbrances of any kind.

(ii) Infringement. The Services and Deliverables do not violate any patent, trade secret, or other intellectual property or proprietary rights of any third party, and as of the Effective Date.

(iii) No Litigation. There is no actual or threatened litigation: (a) that affects its ability to comply with this Agreement, or (b) concerning the Services or Deliverables.

(iv) Services Performance. The Services are performed in a professional and competent manner, conforming to generally accepted standards applicable to services provided by nationally recognized firms specializing in the area of Services provided under this Agreement. Each of the individuals assigned to provide any Services under this Agreement have the proper skill, training, and background to provide the Services.
(c) Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, PARTY-1 AND PARTY-2 EACH MAKE NO REPRESENTATIONS AND EXTEND NO WARRANTIES OR COVENANTS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

9. LIMITATION OF LIABILITY. THIS LIMITATION OF LIABILITY PROVISION APPLIES IN THE AGGREGATE AND NOT ON A PER CLAIM BASIS, WHETHER ANY DAMAGES ARE CHARACTERIZED IN TORT, NEGLIGENCE, CONTRACT, OR OTHER THEORY OF LIABILITY, REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF ESSENTIAL PURPOSE OF A LIMITED REMEDY. THIS LIMITATION OF LIABILITY PROVISION DOES NOT LIMIT A PARTY'S LIABILITY FOR GROSS NEGLIGENCE, INDEMNIFICATION OBLIGATIONS, BREACH OF CONFIDENTIALITY REQUIREMENTS, INTENTIONAL MISCONDUCT, INTENTIONAL TORTS AND INTENTIONAL VIOLATIONS OF LAW. NEITHER PARTY IS LIABLE TO THE OTHER OR ANY THIRD PARTY UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RESULTING FROM THIS AGREEMENT. EACH PARTY'S LIABILITY SHALL NOT EXCEED THE AMOUNTS PAID, DUE AND PAYABLE UNDER THIS AGREEMENT.

10. INDEMNIFICATION. The term "Claim" means any claim, suit or action by any third party, and the term "Losses" means any damages awarded and fines assessed in any Claim by a court of competent jurisdiction or pursuant to an arbitration proceeding, any amounts due under Claim settlement, and any other costs or expenses incurred in complying with any injunctive or equitable relief or any settlement requirements.

(a) Party Indemnification.

(i) Indemnification by Party-1. Upon receipt of notice from Party-2 requesting Party-1 to do so, Party-1 agrees to indemnify, defend, and hold harmless Party-2 and its affiliates, subsidiaries, shareholders, members, directors, officers, employees, agents, and parents, from and against any Claim, and any associated Losses to the extent caused by violation of any copyright, trademark, trade secret, or proprietary right due to Party-1 providing the Services or Deliverables (except to the extent a Claim is caused by Party-2's internally created specifications).

(ii) Indemnification by Party-2. Upon receipt of notice from Party-1 requesting Party-2 to do so, Party-2 agrees to indemnify, defend, and hold harmless Party-1 and its affiliates, subsidiaries, shareholders, members, directors, officers, employees, agents, and parents, from and against any Claim, and any associated Losses to the extent caused by violation of any copyright, trademark, trade secret, or proprietary right to the extent caused by Party-2's internally created specifications or Party-2's use of the Services or Deliverables.

(b) Indemnification Procedures. The term "indemnifying party" means the party assuming indemnification obligations under this Agreement, and the term "indemnified party" means all parties, including any third parties, which the indemnifying party agrees to indemnify under this Agreement.

(i) Notice. The indemnified party must give the indemnifying party prompt written notice of a Claim, provided, however, that failure of an indemnified party to give prompt written notice does not relieve the indemnifying party from its indemnification obligations under this Agreement except to the extent the defense is materially prejudiced by the failure. When the indemnifying party receives notice of a Claim from an indemnified party, the indemnifying party agrees, at its sole cost and expense, to assume the defense of the Claim by representatives chosen by the indemnifying party. The indemnified party may participate in the defense of the Claim and employ counsel at its own expense to assist in the defense of the Claim, subject to the indemnifying party retaining final authority and control over the conduct of the defense.

(ii) Conduct of Defense. The indemnifying party's defense attorneys must be reasonably experienced and qualified in the areas of litigation applicable to the defense. The indemnifying party has the right to assert any defenses, causes of action or counterclaims arising from the subject of the Claim available to the indemnified party and also has the right to settle the Claim, subject to the indemnified party's prior written consent to the extent the settlement affects the rights or obligations of the indemnified party. The indemnified party agrees to provide the indemnifying party with reasonable assistance, at the indemnifying party's expense, as may be reasonably requested by the indemnifying party in connection with any defense, including, without limitation, providing the indemnifying party with information, documents, records and reasonable access to the indemnified party as the indemnifying party reasonably deems necessary.

11. TERM AND TERMINATION.

(a) Term. The term of this Agreement (together with any renewals, the "Term") begins on the Effective Date and expires 1 year later. Immediately upon expiration this Agreement automatically renews on the same terms and conditions for additional successive periods of one (1) year on each anniversary of the Effective Date, unless either party gives the other party written notice that the Agreement does not renew at least thirty (30) days before the end of the then applicable Term.

(b) Survival. The following captioned sections survive any termination, expiration or non-renewal of this Agreement: "Disclaimer", "Limitation of Liability", "Indemnification", "Survival" and "General", as well as any other provisions expressly stating that they are perpetual or survive this Agreement.

(c) Termination for Insolvency. If either party is adjudged insolvent or bankrupt, or upon the institution of any proceedings by it seeking relief, reorganization or arrangement under any Laws relating to insolvency, or if an involuntary petition in bankruptcy is filed against a party and the petition is not discharged within sixty (60) days after filing, or upon any assignment for the benefit of a party's creditors, or upon the appointment of a receiver, liquidator or trustee of any of a party's assets, or upon the liquidation, dissolution or winding up of its business (each, an "Event of Bankruptcy"), then the party affected by any Event of Bankruptcy must immediately give notice of the Event of Bankruptcy to the other party, and the other party may terminate this Agreement by notice to the affected party.

(d) Termination for Breach. If either party breaches any provision contained in this Agreement, and the breach is not cured within thirty (30) days after the breaching party receives written notice of the breach from the non-breaching party, the non-breaching party may then deliver a second notice to the breaching party immediately terminating this Agreement.

(e) Duties upon Termination. This Agreement shall be terminated, all duties owed to either party of this Agreement shall terminate, and this Agreement shall become null and void.

12. FORCE MAJEURE. Any failure or delay by a party in the performance of its obligations under this Agreement is not a default or breach of the Agreement or a ground for termination under this Agreement to the extent the failure or delay is due to elements of nature or acts of God, acts of war, terrorism, riots, revolutions, or strikes or other factor beyond the reasonable control of a party (each, a "Force Majeure Event"). The party failing or delaying due to a Force Majeure Event agrees to give notice to the other party which describes the Force Majeure Event and includes a good faith estimate as to the impact of the Force Majeure Event upon its responsibilities under this Agreement, including, but not limited to, any scheduling changes. However, should any failure to perform or delay in performance due to a Force Majeure Event last longer than thirty (30) days, or should three (3) Force Majeure Events apply to the performance of a party during any calendar year, the party not subject to the Force Majeure Event may terminate this Agreement by notice to the party subject to the Force Majeure Event.

13. GENERAL. Entire Agreement and Amendments. This Agreement is the entire agreement between the parties and supersedes all earlier and simultaneous agreements regarding the subject matter, including, without limitation, any invoices, business forms, purchase orders, proposals or quotations. This Agreement may be amended only in a written document, signed by both parties. Independent Contractors, Third Party Beneficiaries, and Subcontractors. The parties acknowledge that they are independent contractors under this Agreement, and except if expressly stated otherwise, none of the parties, nor any of their employees or agents, has the power or authority to bind or obligate another party. Except if expressly stated, no third party is a beneficiary of this Agreement. The parties may not subcontract any of their obligations under this Agreement. Governing Law and Forum. All claims regarding this Agreement are governed by and construed in accordance with the Laws of the state of Florida, applicable to contracts wholly made and performed in such jurisdiction, except for any choice or conflict of Law principles, and must be litigated in the state of Florida, regardless of the inconvenience of the forum, except that a party may seek temporary injunctive relief in any venue of its choosing. The parties acknowledge and agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Assignment. This Agreement binds and inures to the benefit of the parties' successors and assigns. This Agreement is not assignable, delegable, sublicenseable or otherwise transferable by any party in whole or in part without the prior written consent of the other party (or parties). Any transfer, assignment, delegation or sublicense by a party without such prior written consent is invalid. However, any party may assign this Agreement to a third party purchasing: (a) majority control of the party's equity shares; or (b) all or substantially all of either (i) a party's assets or (ii) the assets of the party's relevant business unit under this Agreement. No Waivers, Cumulative Remedies. A party's failure to insist upon strict performance of any provision of this Agreement is not a waiver of any of its rights under this Agreement. Except if expressly stated otherwise, all remedies under this Agreement, at Law or in equity, are cumulative and nonexclusive. Severability. If any portion of this Agreement is held to be unenforceable, the unenforceable portion must be construed as nearly as possible to reflect the original intent of the parties, the remaining portions remain in full force and effect, and the unenforceable portion remains enforceable in all other contexts and jurisdictions. Notices. All notices, including notices of address changes, under this Agreement must be sent by registered or certified mail or by overnight commercial delivery to the address set forth in this Agreement by each party. Captions and Plural Terms. All captions are for purposes of convenience only and are not to be used in interpretation or enforcement of this Agreement. Terms defined in the singular have the same meaning in the plural and vice versa.