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Source Code License

This is a License Agreement ("Agreement") between FrontMotion, and you (the "Licensee").

last updated 4/20/2005

Definitions

“Annual Subscription Fee” means the annual payment made by the Licensee to FrontMotion in consideration of the rights granted in this agreement.

“Integrated Product” means the Licensee's application or device incorporating the Software.

“Program Errors" means 1 or more reproducible deviations in the standard, unmodified Product from the applicable specifications shown in the documentation incorporating the Software.

"Project" means a single Licensee development project that creates integrated products and embeds or integrates the Software into a larger application or system together with other software or hardware of significant value-add.

"Software" means the supplied FrontMotion Login in binary form including all source code, headers, documentation, and data files including updates and upgrades that have been publicly released.

“Units” means one license of the Licensee’s product shipped during a twelve (12) month period.

License to Use

Subject to the terms and conditions of this Agreement, the Licensee is hereby granted a world-wide, royalty-free, non-exclusive, non-transferable (except as permitted herein) right to use, modify and reproduce the Software for the purposes of creating Integrated Products by a single Project.

The Licensee agrees not to export or re-export the Software or any copy or adaptation in violation of the US Export Administration regulations or other applicable regulation.

Term of License

This Agreement shall be effective for one (1) years from the effective date of this Agreement and shall automatically renew unless terminated earlier under the provisions of this Agreement.

Either party may terminate this agreement by written notice to the other party if the other party breaches any material provision of this Agreement and such breach is not cured within ninety (90) days after written notice thereof is received by the breaching party.

The Licensee may terminate this license at any time by providing FrontMotion written notice stating the effective date of the termination and immediately ceasing to ship Integrated Products containing the Software. If this license is terminated for any reason by either party, the Licensee is not entitled to a refund of the whole or any part of the fees paid. In the event of such termination, the Licensee's right to use Integrated Products that were sold prior to termination is not affected.

Price and Payment

The Licensee shall pay FrontMotion an Annual Subscription Fee for the rights granted in this Agreement to ship Integrated Products containing the Software for the following twelve (12) month period commencing at the execution of this Agreement. The initial payment is due upon execution of this Agreement and subsequent payments are due on the 12 month anniversary of this Agreement. Payments shall be made without any deduction and shall be exclusive of all taxes and duties.

The amount of the Annual Subscription Fee is determined each year by the current size of the Licensee's business for Integrated Products. It is calculated by the Licensee's good faith estimate of the number of Units of Integrated Products or product Revenues that will be shipped during the following twelve (12) month period.

If the Licensee ships more Units than estimated, the Licensee shall upgrade its Software license within thirty (30) days and remit payment for the difference up to the next subscription level as described in Appendix A.

FrontMotion shall provide Licensee with a minimum of thirty (30) days notice prior to increasing the Annual Subscription Fee. Price increases will not affect current subscription fee levels and will only apply to future subscription payments.

Assignment

Licensee may not assign or otherwise transfer any of the rights or obligations arising out of this Agreement except to transfer this Agreement to any successor in connection with any transfer of all or substantially all of its assets or to any party that acquires voting control of the Licensee in a merger, acquisition or reorganization.

Audit Rights

During the term of this Agreement and for a six (6) month period following termination, FrontMotion shall have the right at its own expense, to conduct periodic reviews of the Licensee's records relating to its distribution of integrated products containing the Software for the purpose of verifying the Licensee’s appropriate payment of the licensee fees due hereunder. FrontMotion shall exercise this right upon no fewer than thirty (30) days' prior written notice. The Licensee will provide FrontMotion with reasonable accommodation for the review and reasonable use of available office equipment. The Licensee shall pay the cost of any audit, including (without limitation) reasonable travel expenses and the costs of any attorneys and consultants, if the amount underpaid to FrontMotion is five percent (5%) or more of the amount actually paid. Complete and accurate documents shall be retained by the Licensee for two (2) years following termination of this Agreement.

Copyright and Other Laws

The Software is owned by FrontMotion and is protected by international copyright, trademark and any other applicable laws. The Licensee must comply with the terms of the copyright notice in the Software and must never remove any notice or product identification from the Software or the accompanying documentation. The Licensee acknowledges that the copyright, patent, trade secret and all other intellectual property rights in the Software shall remain the exclusive property of FrontMotion. The Licensee also acknowledges that FrontMotion owns the FrontMotion trademarks and logos.

All right and title to modifications made solely by the Licensee to the Software and the right and title to other software that is included by the Licensee in an Integrated Product, shall remain the property of the Licensee.

Warranties and Limitations

Limited Warranty: If media is provided, FrontMotion warrants that the media in which the Software is recorded are free from defects in materials and faulty workmanship under normal use for a period of 90 days from the date of purchase (as evidenced by a copy of the receipt). During this warranty period, FrontMotion will, at its option either: (1) return the price paid; or (2) repair or replace, free of charge, the defective media upon which the Software has been supplied.

Software Changes: FrontMotion reserves the right at any time not to release or to discontinue release of any Software and to alter prices, features, specifications, capabilities, functions, programming interfaces licensing terms, release dates, general availability or other characteristics of the Software.

Support: The Licensee is entitled to support services in accordance with the terms and conditions of the Technical Support Addendum as defined in this Agreement. In no event shall Licensee be entitled to support services in excess of the value of the Annual Subscription Fee paid for the current year.

No Other Warranties: FrontMotion DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATED TO THE Software, ITS USE OR ANY INABILITY TO USE IT, THE RESULTS OF ITS USE AND THIS Agreement. The Software, and any accompanying written materials, are supplied "AS IS", without warranty of any kind (other than the limited warranty contained in clause 4.a). FrontMotion does not warrant, guarantee or make any representations regarding the use of or the results of the use of the Software or as to its correctness, accuracy, reliability, currentness or otherwise. The entire risk as to results and performance of the Software is assumed by the Licensee. Where legislation does not permit such exclusion of liability, FrontMotion's liability is limited to: (1) replacement of the Software; or (2) correction of defects in the Software, at its option.

No Liability for Consequential Damages: In no event shall FrontMotion or any of its authorized representatives be liable to the Licensee for any damages (including, damages for loss of business profits, business interruption and loss of business information or computer programs) because of the Licensee's use or inability to use the Software, even if FrontMotion has been advised by the Licensee of the possibility of such damages. In any event, FrontMotion's entire liability under any provision of this Agreement shall be limited to the amount actually paid by the Licensee for the Software.

Limitation of Liability: In no event shall FrontMotion be liable for any damages, whether in contract or tort (including negligence), including but not limited to direct, consequential, special, exemplary, incidental and indirect damages or any claims described in Section 'Severability' below, arising out of or in connection with this Agreement or the use, the results of use, or the inability to use the Software, even if FrontMotion has been advised of the possibility of such damages. The Licensee agrees that it shall have the sole responsibility for protecting the Licensee's data, by periodic standby or otherwise, used in connection with the Software.

Indemnification

FrontMotion shall defend, at its expense, any claim, lawsuit or related action brought against the Licensee alleging that the Licensee's use of the Software in accordance with this Agreement infringes a United States patent or copyright, and shall pay all costs and damages finally awarded in any such action (and reasonable attorneys' fees incurred in such action), provided that FrontMotion is given prompt written notice of such claim, any information in the Licensee's possession related to such claim, reasonable assistance by the Licensee and sole authority to settle or defend such claim. Notwithstanding the foregoing, FrontMotion shall not have any liability or obligation under Section 'Assignment' to the extent that the alleged infringement is based upon the use of the Software in combination with any other computer programs or technology not licensed by FrontMotion to the Licensee.

US Government Restricted Rights

The Software provided under this License Agreement is commercial computer software developed exclusively at private expense, and in all respects are proprietary data belonging solely to FrontMotion.

Department of Defense End Users: If the Software is acquired by or on behalf of agencies or units of the Department of Defense (DOD), then, pursuant to DoD FAR Supplement Section 227.7202 and its successors (48 C.F.R. 227.7202) the Government's right to use, reproduce or disclose the Software and any accompanying documentation acquired under this License Agreement is subject to the restrictions of this Agreement.

Civilian Agency End Users: If the Software is acquired by or on behalf of civilian agencies of the US Government, then, pursuant to FAR Section 12.212 and its successors (48 C.F.R. 12.212), the Government's right to use, reproduce or disclose the Software and any accompanying documentation acquired under this License Agreement is subject to the restrictions of this License Agreement.

Notices

Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient (a) upon receipt, when delivered personally or by courier, overnight delivery service or confirmed facsimile, (b) one (1) day after e-mail transmission via Internet (with a copy by first-class certified or registered mail, postage prepaid on the first business day after transmission) or (c) forty-eight (48) hours after being deposited in the regular mail as certified or registered mail (airmail if sent internationally) with postage prepaid, provided in each case that such notice is addressed to the party's address, facsimile number or e-mail address as set forth below, or as subsequently modified by written notice.

Severability

If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith, in order to maintain the economic position enjoyed by each party as close as possible to that under the provision rendered unenforceable. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such a provision, then (a) such provision shall be excluded from this Agreement, (b) the balance of the Agreement shall be interpreted as if such provision were so excluded and (c) the balance of the Agreement shall be enforceable in accordance with its terms.

If FrontMotion and its successors cease operate in the ordinary course of business, the License's rights granted in Section 'License to Use', including the ability to create and sell Integrated Products, shall continue unaffected. In such an event, the Licensee shall have no obligation to pay further Annual Subscription Fees.

Applicable Law

This Agreement will be governed by the laws of the State of Texas, USA and the parties submit to the non-exclusive jurisdiction of the courts of that state.

Appendix A

Annual Subscription Fee Schedule

Appendix B

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