Kubi Client License Agreement

READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE USING OR INSTALLING THE SOFTWARE.

THIS SOFTWARE LICENSE AGREEMENT ("Agreement") is entered into between Kubi Software, Inc., a Delaware corporation ("Licensor") and the person or entity accepting a license for the Kubi Client™ software product subject to the terms and conditions of this Agreement ("Licensee"). For purposes of this Agreement, the term "Software" refers to the Trial Version, the Guest Version and/or the Paid Version of Kubi Client™. Sections 1(c), 5 and 6 and clause (i) of Section 7 only apply to Licensees of the Paid Version of the Software.

1. LICENSE.

(a) License for Trial Version. Licensor hereby grants to Licensee a temporary non-exclusive, non-transferable license, without the right to grant sublicenses, to use for a period of thirty (30) days after installation ("Trial Period") of the trial version of Kubi Client™ ("Trial Version") in object code form for each unique email address provided to Licensor by Licensee. Upon expiration of the Trial Period, the license granted under this Section 1(a) will either (i) automatically convert into a Guest License as provided under Section 1(b) of this Agreement for Guest Version(s) of the Software, which will have reduced functionality from that of the Trial Version and the Paid Version, or (ii) upon payment by Licensee of all applicable license fees, convert into a Paid License as provided under Section 1(c) of this Agreement for a fully-functional version of the Software.

(b) License for Guest Version. Licensor hereby grants to Licensee a non-exclusive, non-transferable license, without the right to grant sublicenses, to use the guest version of Kubi Client™ ("Guest Version") in object code form for each of the unique email addresses provided to Licensor by Licensee. The Guest Version will have reduced functionality from the Trial Version or the Paid Version. The Guest License will survive, unless and until (i) subject to payment of applicable license fees, converted into a Paid License as provided under Section 1(c) of this Agreement, or (ii) terminated pursuant to Section 7 of this Agreement.

(c) License for Paid Version. Licensor hereby grants to Licensee a non-exclusive, non-transferable license, without the right to grant sublicenses, to use the paid-for licensed version of Kubi Client™ ("Paid Version") in object code form for each unique email address for which Licensee has purchased a license for from Licensor. Subject to Licensee's payment of applicable license fees and compliance with the terms and conditions of this Agreement, the Paid License will be perpetual, unless terminated pursuant to Section 7 of this Agreement.

2. LIMITATIONS.

Licensee is hereby prohibited from reverse engineering, de-compiling or disassembling the Software or incorporating in whole or any part in any other product or creating derivative works based on all or any part of the Software. The rights and licenses granted to Licensee with respect to any Software furnished by Licensor may not be sold, licensed, sublicensed, rented, assigned or otherwise transferred to another party without the prior written consent of Licensor, except as expressly provided herein. Licensee agrees to ensure that all copyright, trademark and other proprietary notices within or affixed to the Software will not be removed or modified. Licensee acknowledges that Licensor and its licensors reserve all rights to the Software not expressly granted to Licensee under this Agreement.

3. ACKNOWLEDGEMENT AND REPRESENTATION OF LICENSEE.

Licensee acknowledges that Licensee is required to provide Licensor with each email address for which the Software is licensed to pursuant to Section 1 of this Agreement. Licensee represents and warrants to Licensor that Licensee is authorized to provide each of the email addresses provided by Licensee in connection with the license and use of any Software provided under the terms of this Agreement.

4. NO WARRANTY FOR TRIAL VERSION AND/OR GUEST VERSION.

LICENSEE ACCEPTS THE TRIAL VERSION AND/OR THE GUEST VERSION "AS IS," WITH ANY ERRORS OR DEFECTS. LICENSOR MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WITH RESPECT TO THE TRIAL VERSION OR THE GUEST VERSION, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE FEDERAL AND STATE LAWS.

5. LIMITED WARRANTY FOR PAID VERSION.

(a) Limited Warranty for Paid Licenses. Licensor warrants for a period of ninety (90) days from either (i) the date of installing of the Paid Version or (ii) the date of installation of a software key that converts a Trial Version or Guest Version into the Paid Version of the Software, as the case may be, that the Paid Version will, under normal use, perform substantially in accordance with the standards set forth in the user manuals, training materials, product descriptions and other supporting materials, whether in printed or digital form, and provided by Licensor to Licensee in connection with the use of the Paid Version (collectively "Documentation") . Licensor's warranty is expressly conditioned on Licensee's observance of all operating, security and data control procedures set forth in the Documentation.

(b) Exclusive Remedy. Upon Licensee's determination that the Paid Version is not performing in accordance with the Documentation during the warranty period, Licensee will notify Licensor and provide a complete description of the Error. Upon receipt of such notice, Licensor's sole obligation under the warranty will be to use commercially reasonable efforts to correct the Error described by Licensee. An "Error" is a problem caused by incorrect operation of the computer code of the Software or an incorrect statement or diagram in the Documentation that produces incorrect results or causes incorrect actions to occur.

(c) DISCLAIMER OF ALL OTHER WARRANTIES. THE LIMITED WARRANTY SET FORTH ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PAID VERSION AND ANY OTHER MATERIALS FURNISHED TO LICENSEE HEREUNDER, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES OF NON-INFRINGEMENT. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE FEDERAL AND STATE LAWS.

6. MAINTENANCE AND SUPPORT.

Any maintenance and support services for the Software offered by Licensor will be provided under the terms of a separate agreement.

7. TERMINATION.

Licensor shall have the right to terminate this Agreement and the licenses granted hereunder if, after thirty (30) days written notice to Licensee, any of the following conditions has not been cured by Licensee: (i) with respect to license of the Paid Version only, Licensee fails to pay any amounts due hereunder to Licensor when due; (ii) Licensee uses or copies, or permits a third party to use or copy, the Software in any manner or for any purpose not authorized hereunder; or (iii) Licensee is otherwise in breach of this Agreement in any material respect. Upon termination of this Agreement, Licensee shall cease using the Software and must destroy all copies of the Software and Documentation in Licensee's possession. This Section and Sections 3, 4, 5, 8 and 9 shall survive any termination of this Agreement.

8. LIMITATION OF LIABILITY.

NEITHER LICENSOR NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSS (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF LICENSOR AND/OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE FEDERAL AND STATE LAWS.

9. GENERAL.

(a) Assignment. Licensee may not sublicense, assign (by operation of law or otherwise) or otherwise transfer this Agreement or any license or any right, duty or obligation under this Agreement without Licensor's prior written consent, and any attempt to do so shall be null and void. Licensor shall not unreasonably withhold its consent to the assignment of this Agreement by Licensee to an affiliate, to its successor in connection with a merger, acquisition or consolidation, or to the purchaser in connection with the sale of all or substantially all of Licensee's assets. Subject to the foregoing limitations, this Agreement will mutually benefit and be binding upon the parties, their successors and assigns.

(b) Export Control. Licensee acknowledges that the export of any Software is or may be subject to export or import control and Licensee agrees that any Software or the direct or indirect product thereof will not be exported, directly or indirectly, unless Licensee obtains all necessary licenses from the U.S. Department of Commerce or other agency as required by law.

(c) U.S. Government Restricted Rights. Use, duplication, or disclosure of the Software by the U.S. government is subject to the restrictions set forth in subparagraph (C)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and subparagraphs (C)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19 or clause 18-52.227-86(d) of the NASA Supplement to the FAR, as applicable.

(d) Waiver; Severability. A failure or delay by Licensor to enforce any right under this Agreement shall not at any time constitute a waiver of such right or any other right, and shall not modify the rights or obligations of Licensee under this Agreement. Any waiver by Licensor of any right under this Agreement shall not constitute a waiver of such right in the future. If any provision or portion of this Agreement is held to be unenforceable or invalid, the remaining provisions and portions shall nevertheless be given full force and effect.

(e) Force Majeure. Licensor will not be deemed in default of any obligation hereunder nor be liable for any failure or delay in performance which results directly or indirectly from any cause beyond its reasonable control, including without limitation, "Acts of God," delays or failures in the Internet or related carriers and third-party equipment, acts of civil or military authority, strikes, fire, theft, delays by suppliers, or action or inaction by Licensee or any third party.

(f) Governing Law. This Agreement shall be governed by and construed under the laws of the Commonwealth of Massachusetts, without regard to principles of conflicts of laws. Application of the U.N. Convention of Contracts for the International Sale of Goods is expressly excluded.

(g) Entire Agreement. This Agreement is the entire agreement of the parties, and supersedes all prior agreements and communications, whether oral or in writing, between the parties with respect to the subject matter of this Agreement. Except as expressly provided herein, no amendment or modification of this Agreement shall be effective unless made in writing and signed by Licensor and Licensee.