V-cube Inc.

V-Cube Multiuser License Standard Terms and Conditions

1. Definitions.

Capitalized terms not defined in this document ("Standard Terms and Conditions") have the meaning set forth in the Order Form. “Agreement” means the Order Form and these Standard Terms and Conditions. “Documentation” means the documentation made available to Customer by V-CUBE that describes the operation and functions of the Program. “Order Form” means the Order Form(s) to which these Standard Terms and Conditions are attached or into which these Standard Terms and Conditions are incorporated by reference.

2. Member Account.

In consideration of Customer's payment of the License Fee, V-CUBE hereby grants Customer a password and account designation upon completing the Order Form. V-CUBE grants Customer, subject to this Agreement, the limited, non-exclusive, non-transferable, non-sublicensable and, except as provided in Section 24 below, non-assignable, right ("Access") to permit end users during the Term to use the Program at the Installation Location; provided that the Program is not used simultaneously by more than the number of end users specified in the Order Form as Number of Simultaneous Users. Customer is responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify V-CUBE of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. V-CUBE cannot and will not be liable for any loss or damage arising from Customer's failure to comply with this Section 2.

3. Multiuser Restrictions.

The Program is licensed with a limitation on the number of users, as described in this Section 3. The technical means to enforce this restriction is, among other things, either a Keyserver or Registration Procedure, as specified in the Order Form. If a Keyserver, then the Program may be installed on one server on the local area network located at the LAN IP Address and used on any workstation (personal computer) that is located at the Installation Location and is attached to the local area network located at the LAN IP Address, but may not be used simultaneously on more than the number of workstations specified in the Order Form as Number of Simultaneous Users. If a Registration Procedure, then the Program may be installed on any workstation (personal computer) that is located at the Installation Location, but not more than the number of workstations specified in the Order Form as Number of Simultaneous Users. Customer agrees to safeguard the Program and use all reasonable efforts to ensure that no use is made of the Program in violation or excess of the applicable restrictions set forth in this Section 3. Customer may make a reasonable number of copies of the Documentation for use in connection with use of the Program hereunder.

4. Limitations On License.

Customer and its employees, agents, officers and directors shall not, in whole or in part, directly or indirectly: (i) copy, transmit, reproduce, display, delete, exploit, damage or use the Program or any portion thereof other than as expressly authorized hereunder; (ii) modify, alter, translate, create a derivative work from, disassemble, decompile or otherwise reverse engineer the Program or any Security Mechanism (as defined below), or attempt to, in whole or in part, alter, disable or circumvent any security, copy protection, reliability, integrity, accounting or privacy mechanism, Keyserver or Registration Procedure (collectively “Security Mechanisms”) of, the Program or any part thereof; (iii) sublicense or otherwise distribute, rent, lease, sell or transfer the Program or any part thereof; (iv) permit any third party to use the Program or any part thereof; (v) use, or directly or indirectly permit any third party to use, the Program or any part thereof to directly or indirectly compete with V-CUBE or impair the market for the Program or any part thereof; (vi) authorize or allow simultaneous use of the Program by more than the number of end users specified in the Order Form as Number of Simultaneous Users; (vii) remove, obscure, alter or omit any copyright, trademark, patent or other legal notices affixed to, or to the media or packaging of, or displayed by or in connection with, the Program (including any and all copies or backups thereof); (viii) have any rights with respect to the source code for the Program; (ix) install, or permit access to, the Software on or via any Web site, the Internet, extranet, dialup or other remote connection; or (x) use or make available the Program as an Application Service Provider (ASP). Customer may make one (1) copy of the Program for backup purposes, in addition to copies made in the ordinary course of general server and workstation backups. Customer agrees that any violation of the provisions of this Section 4 would cause irreparable harm to V-CUBE, and that, notwithstanding any other provision set forth herein, V-CUBE shall have the right to suspend Customer’s access to the Program and, if the breach is material, to immediately terminate this Agreement, and shall be entitled to equitable relief to protect its interests hereunder, including but not limited to temporary, preliminary and permanent injunctive relief, as well as money damages. Nothing herein shall be construed to limit any other remedies available to V-CUBE.

5. Ownership.

Notwithstanding any provision herein to the contrary, Customer acknowledges and agrees that (i) V-CUBE retains all right, title and interest in and to, and is the sole and exclusive owner of, the Program and all ideas, inventions, algorithms, patents, copyrights, trademarks, trade secrets, and other intellectual property incorporated in whole or in part in the Program, and (ii) no interest in and to the Program or any portion thereof is granted to Customer other than as set forth in the License. Without limiting any provision hereof, all Security Mechanisms and the source code of the Program constitute confidential information and trade secrets of V-CUBE. Customer shall not challenge any V-CUBE patent, copyright, trademark, trade secret, or other intellectual property, or V-CUBE’s ownership thereof or of the Program, or disparage V-CUBE or the Program. Customer shall promptly notify V-CUBE of any infringement of the Program of which Customer is or becomes aware and shall provide V-CUBE with all reasonable assistance necessary to counter such infringement.

6. Protection of V-CUBE’s Possessory Interests.

Customer shall not create nor suffer to be created any claims by third party creditors against, or mortgage, pledge, lien, security interest or the like (each a “Lien”) on or with respect to, any of the following in Customer’s possession or under Customer’s control: the Program or any portion thereof, and any media containing the Program or any portion thereof. V-CUBE shall have the right to file appropriate protective state and federal instruments in order to prevent the creation of any Lien against the foregoing V-CUBE property.

7. Payment; Interest.

All prices in this Agreement are FOB Los Angeles, California, USA. Customer shall pay all duties, value added, withholding and other taxes (other than taxes on V-CUBE’s income) and amounts in lieu thereof, duties, bank charges, currency conversion charges, wire transmission charges and the like, and any interest or penalties related to any of the foregoing, related to the Program or any payment hereunder (collectively “Taxes and Charges”). All prices in this Agreement or otherwise set by V-CUBE are net of Taxes and Charges. Customer will promptly furnish V-CUBE with the official receipt of its payment to the appropriate taxing authority of any Taxes and Charges. Customer will pay all other Taxes and Charges or provide V-CUBE with a certificate of exemption acceptable to the applicable taxing authority. Customer’s payments to V-CUBE shall be payable within thirty (30) days of the invoice therefor. All sums payable hereunder shall be paid in U.S. Dollars at Los Angeles, California, USA, in readily available funds, without deduction or setoff of any kind. Payments made under this Agreement after their due date will incur interest at a rate equal to one-and-one-half percent (1-1/2%) per month or the highest rate permitted by applicable law, whichever is lower, with interest to run from the date payment was due.

8. Technical Support.

Customer shall establish and maintain a help desk to provide first-level technical support to users of the Program. The help desk will be the sole point of contact with V-CUBE regarding technical support.

9. Duty to Back Up Data.

IT IS CUSTOMER’S RESPONSIBILITY TO MAINTAIN PERIODIC BACKUP COPIES OF ALL DATA AND PROGRAMS USED IN CONJUNCTION WITH THE PROGRAM, AND TO ADVISE END USERS TO MAINTAIN PERIODIC BACKUP COPIES OF ALL DATA, IN ORDER TO PREVENT CATASTROPHIC LOSS.

10. Compliance.

Customer agrees to fully comply with the terms of this Agreement, and with the terms applicable to any third-party software or technology incorporated in the Program. Customer shall not export the Program to any country to which such exports are prohibited by U.S. law or any other applicable law. V-CUBE shall have the right, on reasonable notice and during normal business hours, to visit and inspect Customer’s places of business for the purpose of verifying Customer’s compliance with its obligations hereunder.

11. Representations and Warranties.

As of the Effective Date and throughout the Term, each party represents and warrants to the other that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of its jurisdiction of incorporation, organization or chartering; (b) it has the corporate authority to enter into this Agreement, (c) execution of this Agreement by its officer whose signature is set forth hereon has been duly authorized by all necessary corporate action of the party; (d) it has the right to enter into and perform this Agreement; (e) neither the entry into nor the performance of this Agreement will constitute a violation or default of any other agreement by which it is bound and (f) upon execution by both parties, this Agreement shall be a valid and binding agreement of the party enforceable against the party according to its terms. V-CUBE warrants that, during the Term, to the best of V-CUBE’s knowledge, (i) it has the authority to grant the licenses granted hereunder; and (ii) the Program and Customer’s and end users’ use thereof as contemplated hereunder do not and shall not infringe or violate any U.S. patents, copyrights, trademarks or trade secrets of any third party.

12. Limited Warranty on Media.

V-CUBE warrants the tangible media on which the Software is recorded to be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the Effective Date. V-CUBE's entire liability and Customer’s exclusive remedy will be replacement of the media not meeting V-CUBE's limited warranty and which is returned to V-CUBE. V-CUBE will have no responsibility to replace any media damaged by accident or abuse. ANY IMPLIED WARRANTIES ON THE TANGIBLE MEDIA, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY BY JURISDICTION.

13. Disclaimer of Warranties.

THE WARRANTY AND REMEDY PROVIDED IN SECTION 12 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES. TO THE EXTENT PERMITTED BY APPLICABLE LAW AND OTHER THAN AS SET FORTH IN SECTION 12, V-CUBE EXPRESSLY DISCLAIMS ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE PROGRAM, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR OR SUBSEQUENT ORAL OR WRITTEN STATEMENTS BY V-CUBE OR ITS REPRESENTATIVES, AGENTS, RESELLERS, SUPPLIERS, COURSE OF DEALING OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES OF TITLE AND NONINFRINGEMENT). THE PROGRAM IS PROVIDED ON AN “AS IS,” “WHERE IS” AND “AS AVAILABLE” BASIS. THIS IS AN AGREEMENT FOR THE PROVISION OF SERVICES. V-CUBE DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE CORRECTNESS, ACCURACY, RELIABILITY, COMPATIBILITY OR UNINTERRUPTED OPERATION OF THE PROGRAM, OR OTHERWISE. THE UNIFORM COMMERCIAL CODE AND THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS ARE EXPRESSLY DISCLAIMED.

14. Exclusions from Liability.

V-CUBE SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, COLLATERAL, SPECIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS OF CUSTOMER OR OF ANY OTHER PARTY WHO MAY DIRECTLY OR INDIRECTLY USE OR RELY UPON THE PROGRAM (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, BUSINESS, USE OF MONEY OR USE OF THE PROGRAM, INTERRUPTION IN USE OR AVAILABILITY OF DATA (INCLUDING DATA PROVIDED OR STORED BY V-CUBE, CUSTOMER OR THIRD PARTIES), STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF, IN CONNECTION WITH OR RELATED TO THIS AGREEMENT OR TO USE OF THE PROGRAM, EVEN IF V-CUBE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER ARISING OR ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE. CUSTOMER ASSUMES THE ENTIRE RISK AS TO THE SELECTION, USE, PERFORMANCE, QUALITY AND RESULTS OF AND RELIANCE UPON THE PROGRAM. CUSTOMER AGREES NOT TO USE THE PROGRAM IN ANY SITUATION WHERE SIGNIFICANT DAMAGE OR INJURY TO PERSONS, PROPERTY OR BUSINESS COULD OCCUR FROM A SOFTWARE ERROR.

15. Limitation Of Liability.

IN NO EVENT WILL THE AGGREGATE LIABILITY THAT V-CUBE MAY INCUR UNDER, ARISING OUT OF, IN CONNECTION WITH OR RELATED TO THIS AGREEMENT OR TO USE OF THE PROGRAM EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING ACCRUAL OF CUSTOMER’S EARLIEST CLAIM, REGARDLESS OF THE NUMBER OR EXTENT OF SUCH CLAIMS.

16. V-CUBE’S Reliance an Disclaimers, Exclusions and Limitations.

SECTIONS 13, 14, 15, 16 AND 17 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. NOTWITHSTANDING THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS SET FORTH IN THE FOREGOING SECTIONS, THE ESSENTIAL PURPOSE AND INTENT OF THE FOREGOING SECTIONS IS TO LIMIT THE LIABILITY OF V-CUBE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS SET FORTH IN THE FOREGOING SECTIONS ARE REFLECTED IN THE AMOUNT OF CONSIDERATION TO BE PAID TO V-CUBE IN CONNECTION WITH CUSTOMER’S USE OF THE PROGRAM AND THAT, IF V-CUBE WAS TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, V-CUBE WOULD HAVE INSISTED UPON SUBSTANTIALLY MORE CONSIDERATION. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON THE LENGTH OF AN IMPLIED WARRANTY LASTS AND/OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, LIMITATIONS AND EXCLUSION MAY NOT APPLY TO CUSTOMER.

17. Sole Remedy.

AS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY MATERIAL NONCONFORMITY OR DEFECT IN THE PROGRAM DURING THE TERM, V-CUBE SHALL USE COMMERCIALLY REASONABLE EFFORTS TO CORRECT OR CURE ANY SUCH NONCONFORMITY OR DEFECT FOR WHICH V-CUBE IS RESPONSIBLE AND OF WHICH CUSTOMER NOTIFIES V-CUBE WITHIN NINETY (90) DAYS OF THE EFFECTIVE DATE.

18. Term and Termination.

(a) The term (“Term”) of this Agreement commences as of the Effective Date and shall continue in force until expiration or termination hereunder or by operation of law. (b) V-CUBE may terminate this Agreement in the event of a material breach by Customer that remains uncured after thirty (30) days’ written notice, or immediately (without cure period) in the event of any material breach by Customer of Sections 2, 3, 4, 5 or 6. V-CUBE may terminate this Agreement upon written notice to Customer if Customer ceases to do business as a going concern or files for protection under federal bankruptcy laws (or the equivalent in any relevant jurisdiction), makes an assignment for the benefit of creditors, admits in writing its inability to pay its debts as they become due, is insolvent or the subject of receivership, is the subject of any involuntary petition in bankruptcy and such petition is not dismissed within sixty (60) days or in the event any substantial part of Customer’s property is or becomes subject to any levy, seizure, assignment or sale for or by any creditor or governmental agency without being released or satisfied within sixty (60) days. (c) Upon any termination or expiration of this Agreement, all rights granted to Customer hereunder will immediately cease; Customer shall at its own expense return to V-CUBE or destroy, at V-CUBE’s option, all copies of the Program (including but not limited to all installed copies, media, Documentation, registration cards and backups) and provide V-CUBE with written certification of such return or destruction signed by an officer of Customer; and Customer will within ten (10) days of such termination or expiration pay to V-CUBE all amounts due and owing as of the effective date of termination. (d) Sections 5, 6, 7, 8, 10, 12 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24 will survive the termination or expiration of this Agreement.

19. Governing Law; Disputes.

This Agreement shall be subject to the substantive laws of the state of California without reference to choice of law or conflict of law principles. This Agreement is deemed accepted, executed and performed in Los Angeles County, California. Any disputes arising out of or under or relating to this Agreement shall be resolved solely by mandatory, binding, final arbitration conducted in Los Angeles county, California pursuant to the then-effective Commercial Arbitration Rules of the American Arbitration Association (AAA). The arbitration shall be before a sole neutral arbitrator unless the amount in controversy exceeds fifty thousand dollars ($50,000), in which case the arbitration shall be conducted before a panel of three neutral arbitrators selected by the AAA. The parties waive any objection based on personal jurisdiction, venue and forum non conveniens or similar doctrine. The arbitrator(s) shall have the power to award legal and equitable relief and to award attorneys’ fees and costs to the prevailing party. The award of the arbitrator(s) may be confirmed exclusively by the state and federal courts located in Los Angeles county, California. The results of any arbitration shall have no precedential or preclusive effect, whether by way of collateral estoppel, res judicata, law of the case or otherwise. Subject to the foregoing arbitration provisions, the parties consent to personal and exclusive jurisdiction of, and venue in, the state and federal courts within Los Angeles County, California, U.S.A. The parties waive any objection based on jurisdiction, venue, forum non conveniens or similar doctrines. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL RIGHT TO A CIVIL JURY TRIAL AND ACKNOWLEDGE AND AGREE THAT THE FOREGOING ARBITRATION PROVISIONS CONSTITUTE SUCH A WAIVER. Notwithstanding the foregoing arbitration provisions, V-CUBE shall have the right to temporary, preliminary and permanent equitable relief to enjoin any breach or threatened breach by Customer of Sections 2, 3, 5 or 6.

20. U.S. Government Restricted Rights.

The Program and Documentation are provided with RESTRICTED RIGHTS. The use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraphs (a) through (d) of the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19, (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and in similar clauses in the NASA FAR Supplement, as applicable. The contractor/manufacturer of the Program is V-CUBE, whose address is set forth above.

21. Notices.

TAny notice, payment or other communication required or permitted to be given hereunder shall be given in writing and delivered in person or by FedEx Air, UPS Air or DHL Air, registered mail, facsimile, or email (but only if actually received by the recipient), properly addressed and stamped with the required postage, to the intended recipient at its address or facsimile number specified in this Agreement. Any notice or other communication delivered in person or by facsimile (with confirmation) will be deemed to have been received the first business day after it is sent. Any notice, payment or other communication sent by FedEx Air, UPS Air or DHL Air will be deemed to have been received on the second business day after its posting. Any notice, payment or other communication sent by registered mail will be deemed to have been received on the fifth business day after its date of posting. V-CUBE’s address is V-CUBE, Inc. [Address], Attn: William Wood, fax[INSERT], email [INSERT]. Customer’s address is the Mailing Address, to the attention of the Contact Person, and the Contact Person’s fax and email specified in the Order Form. Either party may from time to time change its address by giving the other party notice of the change in accordance with this Section 21.

22. Force Majeure.

Neither party shall be deemed to be in default of or to have breached any provision of this Agreement as a result of any delay, failure in performance, other than payment of fees, or interruption of service, resulting directly or indirectly from acts of God, acts of civil or military authorities, civil disturbances, wars, terrorism, labor strikes, de facto strikes and disturbances, riots, fires, earthquakes, transportation contingencies, failure of equipment, hardware, power, software not supplied by V-CUBE, networks, servers or transmission lines, laws, acts or orders of any government or agency or official thereof, acts, omissions or failures of third parties, criminal acts, computer viruses, worms and Trojan horses, acts of so-called hackers or crackers, denial of service attacks, any other catastrophes or any other similar occurrences beyond such party’s reasonable control.

23. Interpretation and Related Matters.

Each party has had the opportunity to consult independent legal counsel regarding this Agreement, and that the language of this Agreement is the language chosen by the parties to express their mutual intent. Accordingly, any rule of law, including Section 1654 of the California Civil Code, or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the party that drafted it has no application and is expressly waived. Except as otherwise expressly provided herein or unless the context otherwise requires, “including” means “including, without limitation”; the words “herein,” “hereof” and “hereunder” and similar words refer to this Agreement as a whole and not to any particular subdivision; and the word “or” is inclusive, not exclusive. All article titles, section titles or captions in this Agreement are for convenience only. Each party acknowledges that it has read and understood this Agreement and its legal effect. Nothing herein contained shall be construed to require the performance by either party of any act contrary to law. If any term, sentence, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of this Agreement shall remain in full force and effect and shall, to the fullest extent possible, be construed so as to give effect to the intent manifested by the term, sentence, provision, covenant or restriction held invalid, illegal or unenforceable.

24. Standard Terms.

No breach of this Agreement, other than failure to make timely payment, shall be material unless it remains uncured after thirty (30) days’ written notice to cure from the aggrieved party to the party in breach. In addition to any other remedies at law or equity, V-CUBE shall have the right at any time to suspend or terminate this Agreement or V-CUBE’s obligations under this Agreement if Customer fails to timely pay any and all sums due V-CUBE under this Agreement or otherwise. Nothing in this Agreement shall be construed as creating a partnership or joint venture between the parties or making Customer an agent or employee of V-CUBE. Customer shall not transfer, delegate or assign this Agreement or any portion thereof; provided, however, that Customer may transfer this entire Agreement by written notice to V-CUBE in connection with a sale of all or substantially all of Customer’s business or assets, accompanied by the transferee’s written agreement to be bound by this Agreement; and provided that Customer concurrently therewith transfers the Program, Documentation and all copies of the foregoing to the transferee. Customer shall not make any representation or warranty on behalf of V-CUBE. This Agreement contains the entire agreement between the parties with respect to the subject matter and supersedes any prior agreements between them relating to its subject matter, whether oral or written. No modification, renewal, extension or waiver of this Agreement or any provisions shall be binding unless made in writing and signed by officers of the parties hereto. No third party has any authority to modify, vary, amend or supplement this Agreement or waive any provision thereof, and no employee or agent of V-CUBE has any authority to do so except as set forth in the preceding sentence. Any failure by either party to exercise any of its rights or remedies shall not be construed as a waiver or relinquishment of any other right or remedy or of such right or remedy in any other instance. V-CUBE shall have the right to freely assign or transfer this Agreement. The provisions of this Agreement are for the exclusive benefit of the parties and their permitted successors and assigns, and no third party shall be a beneficiary of, or have any rights by virtue of, this Agreement. This Agreement may be executed by facsimile and in counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument.