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IMPORTANT - READ CAREFULLY: This End User License Agreement ("Agreement") is a legal agreement between you, in your capacity as an individual and as an agent for your company, institution, or other entity (the "Licensee") and Whizoo (the "Author") . Downloading, installing, using, or copying of the Software (as defined below) by you or by a third party on your behalf indicates your agreement to be bound by the terms and conditions of this Agreement. If you do not agree to these terms and conditions, do not download, install or use the Software.

RECITALS

A. The Author is the owner of, or has acquired rights to, the Software and Documentation (as defined below).

B. The Author desires to grant to Licensee and Licensee desires to obtain from the Author a nonexclusive license to use the Software and Documentation solely in accordance with the terms and on the conditions set forth in this Agreement.

NOW, THEREFORE, the parties hereto agree as follows:

1. DEFINITIONS

1.1 “Derivative Products” shall mean computer programs in machine readable object code or source code form developed or otherwise acquired by Licensee which are a modification of, enhancement to, derived from or based upon Software.

1.2 “Documentation” shall mean all manuals, user documentation, and other related materials pertaining to the Software which are furnished to Licensee by Author in connection with the Software.

1.3 “Software” shall mean the computer programs in machine readable object code and source code form listed in Exhibit “A” attached hereto and any subsequent error corrections or updates supplied to Licensee by the Author persuant to this Agreement.

2. GRANT OF RIGHTS

2.1 The Author hereby grants, and the Licensee hereby accepts, subject to the terms and conditions of this Agreement, a nonexclusive, nontransferable, nonassignable and royalty-free perpetual license (i) to use and modify the Software in source code form to create Derivative Products and (ii) to use, manufacture, reproduce, have reproduced, sublicense, market and distribute the Documentation and the Software and any Derivative Products in object code form from the Effective Date hereof until terminated in accordance herewith.

2.2 Licensee shall have the right to copy or reproduce the Software and Documentation, in whole or in part, as necessary to license to End Users the object code version of the Software for use on designated systems. Licensee agrees that the Software is the Author’s confidential information and shall treat and handle confidential information in accordance with the provisions of Article 8.

3. DELIVERY

Author shall deliver to Licensee a master copy of the Software licensed hereunder in object code form suitable for reproduction, together with a copy of the Software in source code form. Author shall deliver the foregoing in electronic files only.

4. MODIFICATIONS

4.1 Error Corrections and Updates. Author will provide Licensee with error corrections, bug fixes, patches or other updates to the Software licensed hereunder in object code form to the extent available in accordance with Author’s release schedule for a period of ninety (90) days from the date of delivery. In addition, Author will provide Licensee with updated source code for each new release of the Software licensed hereunder to the extent available for a period of ninety (90) days from the date of delivery.

4.2 Other Modifications. Licensee may, from time to time, request that Author incorporate certain features, enhancements or modifications into the Software. Author may, in its sole discretion, undertake to incorporate such changes and distribute the Software so modified to all or any of Author’s licensees.

4.3 Title to Modifications. All such error corrections, bug fixes, patches, updates or other modifications shall be the sole property of Author.

5. DERIVATIVE PRODUCTS

5.1 Title to Incorporated Software. Title to and ownership of any portion of the Software or Documentation incorporated into a Derivative Product shall at all times remain with Author, and Licensee shall not have any title or ownership interest therein.

5.2 Title to Derivative Products. Title to and ownership of any portion of a Derivative Product created by Licensee and not owned by Author and/or its supplier pursuant to Section 5.1 above shall be held by Licensee.

5.3 Incorporation Into Other Software. Licensee may, in its discretion, incorporate the Software, Derivative Products or parts thereof, into other of its products, provided Licensee complies with the provisions of Article 2 above and Licensee’s obligations under Articles 6, 7 and 8 below.

5.4 Maintenance of Derivative Products. Author shall not be required to maintain or otherwise repair any Derivative Products. Any assistance in repairing errors or defects in the Derivative Products which may be provided by Author, in its sole discretion, shall be subject to the terms of a separate agreement.

5.5 Products Developed by Author. Nothing contained in this Agreement shall be construed to limit Author’s rights to modify the Software or to develop other products which are similar to or offer the same or similar improvements as any Derivative Products developed by Licensee.

6. LICENSE FEES AND PAYMENT

6.1 License Fee. In consideration of the license rights granted in Article 2 above, Licensee shall pay the License Fees or other consideration for the Software, Documentation and any Derivative Products as set forth on Exhibit “A” attached hereto. All amounts payable hereunder by Licensee shall be payable in United States funds without deductions for taxes, assessments, fees, or charges of any kind. Checks shall be made payable to Author and shall be forwarded to the Office at Author as follows:

6.2 Taxes and Other Charges. Licensee shall be responsible for paying all (i) sales, use, excise, value-added, or other tax or governmental charges imposed on the licensing or use of the Software, Derivative Products or Documentation hereunder, (ii) freight, insurance and installation charges, and (iii) import or export duties or like charges.

7. PROTECTION OF SOFTWARE

7.1 Proprietary Notices. Licensee shall maintain and place on any copy of the source code which it reproduces, all such notices as are authorized and/or required hereunder. Licensee shall use the following notice, or such other reasonable notice as Author shall from time to time require, on each copy of the source code:

Copyright © Whizoo, 2003 . All rights reserved.
This software and documentation constitute an unpublished work and contain valuable trade secrets and proprietary information belonging to Author. None of the foregoing material may be copied, duplicated or disclosed without the express written permission of Author. Author EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES CONCERNING THIS SOFTWARE AND DOCUMENTATION, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR ANY PARTICULAR PURPOSE, AND WARRANTIES OF PERFORMANCE, AND ANY WARRANTY THAT MIGHT OTHERWISE ARISE FROM COURSE OF DEALING OR USAGE OF TRADE. NO WARRANTY IS EITHER EXPRESS OR IMPLIED WITH RESPECT TO THE USE OF THE SOFTWARE OR DOCUMENTATION. Under no circumstances shall Author be liable for incidental, special, indirect, direct or consequential damages or loss of profits, interruption of business, or related expenses which may arise from use of software or documentation, including but not limited to those resulting from defects in software and/or documentation, or loss or inaccuracy of data of any kind.

7.2 Ownership. Licensee further acknowledges that all copies of the Software in any form provided by Author or made by Licensee are the sole property of Author. Licensee shall not have any right, title, or interest in or to any such Software or copies thereof except as provided in this Agreement, and further shall secure and protect all Software and Documentation consistent with maintenance of Author’s proprietary rights therein.

7.3 Sublicenses. No license to sublicense the source code of the Software or any portion thereof included in any Derivative Products is granted hereunder.

7.4 Copies. Licensee shall not copy the source code of the Software except that Licensee may make one copy solely for archival or backup purposes, and may make such copies as are necessary for the creation of Derivative Products.

8. CONFIDENTIALITY

8.1 Acknowledgement. Licensee hereby acknowledges and agrees that the Software and Documentation constitute and contain valuable proprietary products and trade secrets of Author, embodying substantial creative efforts and confidential information, ideas, and expressions. Accordingly, Licensee agrees to treat (and take precautions to ensure that its employees treat) the Software and Documentation as confidential in accordance with the confidentiality requirements and conditions set forth below.

8.2 Maintenance of Confidential Information. Each party agrees to keep confidential all confidential information disclosed to it by the other party in accordance herewith, and to protect the confidentiality thereof in the same manner it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of confidential information); provided, however, that neither party shall have any such obligation with respect to use of disclosure to others not parties to this Agreement of such confidential information as can be established to: (a) have been known publicly; (b) have been known generally in the industry before communication by the disclosing party to the recipient; have become know publicly, without fault on the part of the recipient, subsequent to disclosure by the disclosing party; (d) have been known otherwise by the recipient before communication by the disclosing party; or (e) have been received by the recipient without any obligation of confidentiality from a source (other than the disclosing party) lawfully having possession of such information.

8.3 Injunctive Relief. Licensee acknowledges that the unauthorized use, transfer or disclosure of the Software, Documentation or copies thereof will (i) substantially diminish the value to Author of the trade secrets and other proprietary interests that are the subject of this Agreement; (ii) render Author’s remedy at law for such unauthorized use, disclosure or transfer inadequate; and (iii) cause irreparable injury in a short period of time. If Licensee breaches any of its obligations with respect to the use or confidentiality of the Software or Documentation, Author shall be entitled to equitable relief to protect its interests therein, including, but not limited to, preliminary and permanent injunctive relief.

8.4 Survival. Licensee’s obligations under this Article 8 will survive the termination of this Agreement or of any license granted under this Agreement for whatever reason.

9. WARRANTIES; SUPERIOR RIGHTS

9.1 Ownership. Author represents its belief that it is the owner of the entire right, title, and interest in and to Software, and that it has the sole right to grant licenses thereunder, and that it has not knowingly granted licenses thereunder to any other entity that would restrict rights granted hereunder.

9.2 Limited Warranty. Author represents and warrants to Licensee that the Software when properly installed by Licensee and used with the Designated Equipment will perform substantially as described in Author’s then current Documentation for such Software for a period of ninety (90) days from the date of delivery.

9.3 Limitations. Notwithstanding the warranty provisions set forth in Section 9.2 above, all of Author’s obligations with respect to such warranties shall be contingent on Licensee’s use of the Software in accordance with this Agreement and in accordance with Author’s instructions as provided by Author in the Documentation, as such instructions may be amended, supplemented, or modified by Author from time to time. Author shall have no warranty obligations with respect to any failures of the Software which are the result of accident, abuse, misapplication, extreme power surge or extreme electromagnetic field.

9.4 Licensee’s Sole Remedy. Author’s entire liability and Licensee’s exclusive remedy shall be, at Author’s option, either (a) return of the price paid or (b) repair or replacement of the Software upon its return to Author; provided Author receives written notice from Licensee during the warranty period of a breach of warranty. Any replacement Software Product will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer.

9.5 Disclaimer of Warranties. Author DOES NOT REPRESENT OR WARRANT THAT ALL ERRORS IN THE SOFTWARE AND DOCUMENTATION WILL BE CORRECTED. THE WARRANTIES STATED IN SECTION 9.2 ABOVE ARE THE SOLE AND THE EXCLUSIVE WARRANTIES OFFERED BY Author. THERE ARE NO OTHER WARRANTIES RESPECTING THE SOFTWARE, DERIVATIVE PRODUCTS, DOCUMENTATION OR SERVICES PROVIDED HEREUNDER, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF DESIGN, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, EVEN IF Author HAS BEEN INFORMED OF SUCH PURPOSE. NO AGENT OF Author IS AUTHORIZED TO ALTER OR EXCEED THE WARRANTY OBLIGATIONS OF Author AS SET FORTH HEREIN.

9.6 Limitation of Liability. LICENSEE ACKNOWLEDGES AND AGREES THAT THE CONSIDERATION WHICH Author IS CHARGING HEREUNDER DOES NOT INCLUDE ANY CONSIDERATION FOR ASSUMPTION BY Author OF THE RISK OF LICENSEE’S CONSEQUENTIAL OR INCIDENTAL DAMAGES WHICH MAY ARISE IN CONNECTION WITH LICENSEE’S USE OF THE SOFTWARE, DERIVATIVE PRODUCTS AND DOCUMENTATION. ACCORDINGLY, LICENSEE AGREES THAT Author SHALL NOT BE RESPONSIBLE TO LICENSEE FOR ANY LOSS-OF-PROFIT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE LICENSING OR USE OF THE SOFTWARE, DERIVATIVE PRODUCTS OR DOCUMENTATION. Any provision herein to the contrary notwithstanding, the maximum liability of Author to any person, firm or corporation whatsoever arising out of or in the connection with any license, use or other employment of any Software delivered to Licensee hereunder, whether such liability arises from any claim based on breach or repudiation of contract, warranty, tort or otherwise, shall in no case exceed the actual price paid to Author by Licensee for the Software whose license, use, or other employment gives rise to the liability. The essential purpose of this provision is to limit the potential liability of Author arising out of this Agreement. The parties acknowledge that the limitations set forth in this Article 9 are integral to the amount of consideration levied in connection with the license of the Software and Documentation and any services rendered hereunder and that, were Author to assume any further liability other than as set forth herein, such consideration would of necessity be set substantially higher.

10. INDEMNIFICATION

10.1 Author shall indemnify, hold harmless and defend Licensee against any action brought against Licensee to the extent that such action is based on a claim that the unmodified Software, when used in accordance with this Agreement, infringes a United States copyright and Author shall pay all costs, settlements and damages finally awarded; provided, that Licensee promptly notifies Author in writing of any claim, gives Author sole control of the defense and settlement thereof and provides all reasonable assistance in connection therewith. If any Software is finally adjudged to so infringe, or in Author’s opinion is likely to become the subject of such a claim, Author shall, at its option, either: (i) procure for Licensee the right to continue using the Software (ii) modify or replace the Software to make it noninfringing, or (iii) refund the fee paid, less reasonable depreciation, upon return of the Software. Author shall have no liability regarding any claim arising out of: (w) use of other than a current, unaltered release of the Software unless the infringing portion is also in the then current, unaltered release, (x) use of the Software in combination with non-Author software, data or equipment if the infringement was caused by such use or combination, (y) any modification or derivation of the Software not specifically authorized in writing by Author or (z) use of third party software. THE FOREGOING STATES THE ENTIRE LIABILITY OF Author AND THE EXCLUSIVE REMEDY FOR LICENSEE RELATING TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY COPYRIGHT OR OTHER PROPRIETARY RIGHT BY THE SOFTWARE.

10.2 Except for the foregoing infringement claims, Licensee shall indemnify and hold harmless Author and agents from and against any claims, demands, or causes of action whatsoever, including without limitation those arising on account of Licensee’s modification or enhancement of the Software or otherwise caused by, or arising out of, or resulting from, the exercise or practice of the license granted hereunder by Licensee, its sublicensees, if any, its subsidiaries or their officers, employees, agents or representatives.

12. DEFAULT AND TERMINATION

12.1 Events of Default. This Agreement may be terminated by the nondefaulting party if any of the following events of default occur: (1) if a party materially fails to perform or comply with this Agreement or any provision hereof; (2) if either party fails to strictly comply with the provisions of Article 8 (Confidentiality) or makes an assignment in violation of Article 14 (Nonassignability); (3) if a party becomes insolvent or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; (4) if a petition under any foreign, state, or United States bankruptcy act, receivership statute, or the like, as they now exist, or as they may be amended, is filed by a party; or (5) if such a petition is filed by any third party, or an application for a receiver is made by anyone and such petition or application is not resolved favorably within ninety (90) days.

12.2 Effective Date of Termination. Termination due to a material breach of Articles 2 (Grant of Rights), 5 (Derivative Products), 7 (Protection of Software), or 8 (Confidentiality) shall be effective on notice. In all other cases, termination shall be effective thirty (30) days after notice of termination to the defaulting party if the defaults have not been cured within such thirty (30) day period.

12.3 Obligations on Termination. Within ten (10) days after termination of this Agreement, Licensee shall cease and desist all use of the Software and Documentation and shall destroy or return to Author all full or partial copies of the Software and Documentation in Licensee’s possession or under its control.

13. NOTICES

All notices, authorizations, and requests in connection with this Agreement shall be deemed given (i) five days after being deposited in the U.S. mail, postage prepaid, certified or registered, return receipt requested; or (ii) one day after being sent by overnight courier, charges prepaid, with a confirming fax; and addressed as first set forth above or to such other address as the party to receive the notice or request so designates by written notice to the other.

14. NONASSIGNABILITY

Licensee shall not assign this Agreement or its rights hereunder without the prior written consent of Author.

15. GOVERNING LAW; JURISDICTION AND VENUE

The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of California. The California state courts (or, if there is exclusive federal jurisdiction, the United States District Court for the District of California) shall have exclusive jurisdiction and venue over any dispute arising out of this Agreement, and Licensee hereby consents to the jurisdiction of such courts.

16. SEVERABILITY

If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.

17. MISCELLANEOUS

This Agreement and its exhibits contain the entire understanding and agreement between the parties respecting the subject matter hereof. This Agreement may not be supplemented, modified, amended, released or discharged except by an instrument in writing signed by each party’s duly authorized representative. All captions and headings in this Agreement are for purposes of convenience only and shall not affect the construction or interpretation of any of its provisions. Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any provision of this Agreement or of any subsequent default or breach of the same or a different kind.


EXHIBIT A - SOFTWARE AND CONSIDERATION

Description of Software software application for the Palm OS in source code and PRC format
License Fee $249