End User License Agreement

THIS DOCUMENT, TOGETHER WITH ANY APPURTENANT INVOICES OR QUOTES DETAILING SPECIFIC TERMS OF USE OR SERVICE, WHICH ARE INCORPORATED BY REFERENCE AS THOUGH FULLY SET FORTH HEREIN, CONSTITUTES AN OFFER WHICH MAY BE ACCEPTED BY LICENSEE BY: (1) COMPLETING, SIGNING AND RETURNING A PURCHASE ORDER IN RESPONSE TO SAID INVOICE(S); OR (2) BY INSTALLING OR USING THE LICENSED PROGRAM SET FORTH IN THE INVOICE(S), AS MAY EXIST FROM TIME TO TIME BETWEEN THE PARTIES FOR ANY PURPOSE. THE PARTIES HERETO AGREE THAT ANY USE BY LICENSEE OF LICENSOR’S SOFTWARE SHALL BE DEEMED A WRITING FOR PURPOSES RELATIVE TO CONTRACT FORMATION AND/OR AMENDMENT. ANY OTHER WRITING WHICH PURPORTS TO CHANGE, MODIFY, ADD OR SUBTRACT ANY TERMS OF THIS AGREEMENT, TOGETHER WITH THE INCORPORATED TERMS OF THE INVOICE(S) ISSUED BY LICENSOR AND ANY RESPONSIVE PURCHASE ORDER ISSUED BY LICENSEE, SHALL HAVE NO FORCE NOR EFFECT UNLESS EXPRESSLY AGREED TO IN WRITING BY LICENSOR.

This Agreement, effective the date Licensee places an order with EXECUTIVE BUSINESS SERVICES, INC (hereinafter referred to as EBS or Licensor) by issuing a purchase order to Licensor, is between EBS and Licensee (as defined more specifically on the Invoice(s) from EBS, and reflected in the Purchase Order(s) from Licensee, as may exist from time to time).

1.0 LICENSE: EBS hereby grants to Licensee a nontransferable and nonexclusive license to use the software listed in this License Agreement under the provisions contained herein. This Agreement shall be binding upon and inure to the benefit of any legal successor of the Licensee who, whether by merger, purchase, or otherwise, acquires all or substantially all of the assets or business of Licensee; in no regard may Licensee assign, sell, hypothecate, or otherwise transfer any right hereunder which would unreasonably impose any augmented duty or responsibility on Licensor. This Agreement may not otherwise be assigned, sublicensed, or transferred by Licensee without prior written consent from EBS.

1.1 BACKUP COPY: This Agreement authorizes the Licensee to use the software in object code form in the quantity identified in the Invoice(s) and reflective Purchase Order(s) as may exist from time to time between the Parties. Licensee may also use the software on similar backup or replacement equipment as is deemed reasonably necessary by Licensee, and subject to ultimate discretion and/or approval by EBS.

1.2 APPLICATION USE (LICENSING): Without limiting the generality of the foregoing, the maximum number of installations governed by this Agreement is the number of systems listed on the Invoice(s) issued from Licensor. For the purposes of this agreement, a named user license shall apply to a particular individual USING the software, regardless of where the software has been installed (e.g., in the case where the software has been installed on a single server to be accessed by multiple users, a license shall be purchased for each user. Some of the EBS suite of software applications may be used in either a workstation, named user, or concurrent use license configuration, depending on the type of license purchased. In the case of a concurrent use license, the Licensee shall be responsible for regulating/managing the concurrent use of the product, either by internal means or via available third party products, in order to conform to the license agreement (if concurrent use monitoring capability is not inherent within the product itself). Any software license may be transferred to other sites within the Licensee's immediate organization, as long as the total number of licenses in operation does not exceed the number stated on the incorporated Invoice(s) and Purchase Order(s). If additional installations of the software are desired, an appropriate license must be negotiated with EBS as a separate procurement transaction and referenced in subsequent Invoice(s) and Purchase Order(s). Use of APIs for internal apps must be licensed separately.

1.3 NO MODIFICATION OF SOFTWARE: Licensee shall not, without the written consent of EBS, modify or permit any modification of the software by any person, firm or corporation, whether or not affiliated with or a parent or subsidiary of Licensee. Any modifications, improvements and/or additions to the software shall become and be considered the property of EBS, whether or not special fees have been paid by either party to the other for development of software modifications, improvements and/or additions.

2.0 TITLE: All rights, title and ownership in the software and any copies thereof shall remain with EBS. Licensee shall not sell, transfer, publish, disclose, display or otherwise make available any EBS software product or copies thereof to others without the express written consent of EBS. No officer, employee or agent of EBS is capable of transferring or authorizing the transfer of any interest in or to the software or any portion thereof, except as conveyed herein, to any person, firm, corporation or governmental authority without the express prior written consent of EBS's Board of Directors.

3.0 TERM: The license shall commence upon the date of delivery of the Licensee Purchase Order(s) and shall remain in force permanently unless terminated as set forth below or until no licensable subject matter exists.

4.0 DELIVERY: The target date for delivery of the software is within seven business (7) days of receipt of Purchase Order. Custom modifications, if any, will be delivered upon completion. All deliveries under this Agreement shall be F.O.B. Origin.

5.0 PAYMENT: Licensee shall issue a Purchase Order, or Purchase Orders, as necessary, for the Software License prices and training classes (as itemized in any appurtenant Invoice(s) from Licensor) which incorporates this Agreement by reference. This Agreement supersedes any conflicting terms of Licensee's Purchase Order(s); this Software Licensing Agreement, together with the incorporated Invoice(s) from Licensor and Purchase Order(s) from Licensee, constitute a single, integrated contract. Any deferred line items shall be invoiced separately. Payment of the Invoice(s), in full, shall be due net 30 of date of any particular Invoice, unless otherwise negotiated and agreed to in writing by both parties in a Purchase Order and Invoice. All Invoices relative hereto and rates or terms cited therein are agreed to be payable in United States Dollars, irrespective of any exchange rates for non-domestic transactions.

6.0 TAXES: The charges for this license are exclusive of any tariffs, duties, or taxes imposed or levied by any governmental or government agency. Licensee shall be liable for payment of all such taxes, however designated, levied or based on software, its charges, its use, or on this Agreement, including without limitation state or local sales, use and property taxes, exclusive, however, of taxes on EBS based on its net income.

7.0 INSTALLATION AND TRAINING: The software will be installed by Licensee at the installation site. Following the installation of the software, EBS will be available to provide introductory training classes at EBS's published training fees, times and locations. Training materials will be provided by EBS for the class.

8.0 ACCEPTANCE TEST PERIOD: Within thirty (30) days after the software is received at Licensee's site, Licensee shall conduct such acceptance tests as it deems appropriate to satisfy itself that the software operates as specified in the applicable documentation. If Licensee determines that the software does not conform to the documentation, it shall immediately notify EBS of its findings together with such specific information as is requested by EBS to permit analysis of the claimed nonconformance. EBS shall have a reasonable time to analyze the information and, where that analysis shows nonconformance to exist, to implement corrections. Upon redelivery of the software to Licensee, the acceptance tests shall be rerun by Licensee within 10 days. If Licensee does not notify EBS of nonconformance within the 30-day acceptance test period or within the 10-day retest period(s), the software will be deemed accepted by Licensee and shall be deemed conforming and materially satisfactory.

8.1 OPERATIONAL USE: Licensee agrees that it will not rely on the software for operational applications until it has satisfied itself that the software conforms to its published documentation and that Licensee's personnel are trained and qualified to operate the software.

9.0 USER MANUALS/DOCUMENTS: EBS-published documentation provided to Licensee with the software itself, or in connection with Licensee’s license under this Agreement, are copyrighted materials and are intended for the use of Licensee’s personnel. This documentation may be distributed freely within Licensee’s organization. Express written consent must be obtained from EBS to distribute the documentation outside the Licensee’s organization.

10.0 LIMITED WARRANTY: EBS warrants that for a period of one year after delivery of the software, when used with the applicable user documentation and supported by any appurtenant Service Contract, will operate in conformity with its published documentation and is without any known, harmful error. EBS does not warrant that the software is error free. During the warranty period, Licensee shall be entitled to receive the support services specified herein without additional charge. If the software is modified by any person or entity without the written consent of EBS, this warranty shall cease and the software shall thereafter be without warranty of any kind, express or implied. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.

10.1 TANGIBLE COPY OF SOFTWARE: Where reasonable, Licensor may deliver software hereunder by means of electronic transmission, with an accompanying access key/password. In cases of delivery by CD-ROM or other media, EBS warrants that the CD-ROM or other media on which the software may be recorded (program media) are free of mechanical or magnetic defects in material or workmanship under normal use for a period of ninety (90) days after the date of this Agreement. If during such ninety-day period the magnetic material should become defective and be returned to EBS, EBS will replace it without charge.

11.0 LICENSEE'S REMEDIES: Licensee's remedies under this Agreement are (1) to receive the warranty service without charge as specified in this Agreement, and (2) receive the maintenance service, if purchased and renewed annually by Licensee, as provided in this Agreement.

11.1 LIMITATION OF REMEDIES: EBS SHALL NOT BE LIABLE TO LICENSEE OR TO ANY OTHER PERSON, WHETHER IN CONTRACT OR TORT, FOR INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OF THE SOFTWARE OR ANY PART OF IT, THE LOSS OF USE OF THE SOFTWARE, LOSS OF DATA OR PROFITS, MODIFICATIONS OF THE SOFTWARE MADE BY ANYONE OTHER THAN EBS OR ITS AUTHORIZED REPRESENTATIVES, ERRONEOUS DATA IN THE DATA FILES OR IN THE INPUT OR OUTPUT, ERRONEOUS TRANSMISSION OF DATA, FAILURE BY ANY PERSON TO PERFORM ADEQUATE DATA BACKUP OR SECURITY PROCEDURES, HARDWARE MALFUNCTIONS, OR THE USE OF THE SOFTWARE BY UNLICENSED PERSONS. IN NO EVENT SHALL THE TOTAL LIABILITY OF EBS TO LICENSEE EXCEED THE SUM PAID TO EBS BY LICENSEE FOR LICENSE OF THE PRODUCT.

12.0 SOFTWARE SUPPORT/MAINTENANCE: As part of Licensee’s initial purchase of any license of any of the EBS-offered products, and as may be specifically set forth in the incorporated Invoice(s) or Purchase Order(s) relative hereto, Licensee is entitled to receive one (1) year of software maintenance and/or technical support. Licensee’s initial purchase of the software license entitles Licensee to continue to use the software license beyond the first year following installation; however, Licensee hereby acknowledges and understands that any such use of any software products will be unsupported by maintenance, software updates, or other technical support, etc., as further set forth in the balance of this sub-paragraph.

Following the first year after installation of any software product, Licensee’s right to technical support and maintenance of the software shall be conditional on Licensee’s timely payment of any Invoice(s) from Licensor for annual maintenance/software service and support. For purposes of this Agreement and any maintenance/support, payment of any nature by Licensee shall be deemed in writing acknowledging and accepting the terms hereof as binding on any continued software support. For purposes of this Software Licensing Agreement, the provisions contained under this sub-heading shall be applicable, as follows:

12.1 TERMS OF MAINTENANCE/SERVICE: Provided that Licensee maintains in effect continual annual maintenance/support services by paying the maintenance/support fee as specified herein, or in any related Invoice(s), EBS hereby covenants and agrees that EBS will: (1) correct actual software errors to the then current release of the software which prevent the software from operating in accordance with the applicable user documentation, (2) provide reasonable software support service by telephone and/or online; and, (3) provide updates and enhancements as specified below. The maintenance/support fee for the first year is included in the license fee. Thereafter, those services will be provided upon payment of EBS's then-current annual maintenance/support fee, and as may be invoiced by Licensor from time to time. Annual maintenance/support may be terminated by either party upon written notice received by the other party at least thirty (30) days prior to the expiration of the current support term. Support on a "per call" basis is not provided.

12.2 LAPSE IN PAYMENT & REINSTATEMENT: In the event Licensee fails to pay software maintenance/service Invoice(s) in a timely manner beyond the first year following initial purchase of the subject software, Licensee’s right to technical support, software updates, or other related services and/or maintenance related to Licensee’s use of the software shall lapse. If licensee decides to reactivate the licenses dropped from the maintenance agreement within the first year of deactivation, licensee may do so by paying the back maintenance amount for the previous year. If more than one renewal anniversary year has elapsed since the licenses were dropped from the maintenance agreement, licensee must repurchase those licenses at the rate commensurate with established pricing.

12.3 SOFTWARE UPDATES: For a period of one year from software delivery, EBS will provide Licensee with updated and/or enhanced versions of the software containing corrections and improvements. Any updated or enhanced software published after the first year will be available to Licensee at no additional charge providing the maintenance/support contract is then current, as invoiced by Licensor from time to time.

12.4 DEFINITION OF 24/7 SUPPORT: The Parties hereby acknowledge that technical support, as referenced hereinabove, or as invoiced by EBS from time to time, may not be literally available on a 24/7 basis due to de minimis or other reasonable interruptions in telephone and/or Internet connectivity, or for other reasons. Notwithstanding, EBS shall strive to provide such full service technical support, within reasonable restrictions. The Parties hereto do further agree and acknowledge that such service support shall not necessarily render the subject software to be "bug-free" or "error-free" or suitable for a specific, intended purpose or use, beyond any warranty otherwise expressly set forth by EBS in any related Software Licensing Agreement. Notwithstanding, EBS will, in providing said service, strive to provide technical support to render the subject software licenses usable within the scope of such aforementioned Software License Agreement(s).

12.5 GOVERNMENT CONTRACT PRICING SUMMIT: Software service support shall also include a proportional number of registrations at the annual Government Contract Pricing Summit hosted by EBS, and a right for Licensee to register for software training offered and scheduled by EBS for said software, as may be hereinafter set forth between the Parties, or as may be established on any Invoice(s) issued by Licensor from time to time.

12.6 MAINTENANCE PREMIUMS: In adequate and material consideration for the services to be provided by EBS hereunder, Licensee hereby covenants and agrees to fully pay, in advance of each annual service period, all such maintenance premiums required therefore at the published, reasonable rate set by EBS, from time to time through the duration of this Service Agreement and Software Licensing Agreement, and as may be established hereafter between the Parties, based on the number of licenses purchased by Licensee. Such specific terms may be further set forth in the incorporated Invoice(s) between the Parties and/or related Purchase Agreement(s) from Licensee.

12.7 NON-ASSIGNABILITY OF MAINTENANCE: This Service Agreement, its terms and rights hereunder, may not be otherwise assigned, sublicensed, or transferred by Licensee without prior written consent from EBS.

12.8 DEFAULT OF SERVICE CONTRACT: If either party hereto is in material breach of this Agreement and fails to correct such breach within thirty (30) days of written notice thereof from the other, the non-breaching Party may declare the breaching Party to be in breach, and the non-breaching Party may terminate this Agreement by written notice thereof to the other Party. In the event Licensee fails to timely pay maintenance support premiums, as invoiced, Licensor may, inter alia, indefinitely suspend any/all service or support for any software licenses held by Licensee, and as referenced elsewhere in this Agreement. In the event Licensor materially fails to provide support, as set forth herein, Licensee may seek a pro-rata refund of any prepaid premiums held by Licensor. In the event Licensee elects to terminate this Agreement prior to the close of any period for which premiums have already been paid, Licensor may, at Licensor’s election, declare said premiums forfeit, and may retain such premiums to Licensor’s benefit.

13.0 CONFIDENTIALITY: The Parties hereto agree to use reasonable means to maintain confidentialities of the other Party. Licensee shall use the licensed software only for purposes and to the extent authorized herein, and shall take reasonable precautions to ensure that (1) the Licensed Software is made available only to Licensee’s employees and subcontractors, that (2) such employees and subcontractors do not make unauthorized use, disclosure, distribution or transfer of the Licensed Software and (3) that neither Licensee nor its employees or subcontractor attempt to learn the trade secrets and confidential information in the Licensed Software by decompilation, disassembly or other methods of reverse engineering.

13.1 Notwithstanding the foregoing, Licensee's obligations with respect to EBS's proprietary and confidential information do not extend to information which: (1) Becomes publicly available without fault of Licensee or its agents, employees, contractors, or affiliated entities; (2) Is rightfully obtained by Licensee from a third party who rightfully possesses and discloses said information; (3) Is shown by written record to be developed by Licensee, independently of EBS; (4) Is shown by written record to have been known or available to Licensee at the time of receipt from EBS; or (5) Is furnished to others by EBS without restriction or disclosure.

14.0 INFRINGEMENT CLAIMS: EBS agrees to defend or settle, at its option, any action at law or in equity against Licensee arising from a claim that Licensee's use of software under this Agreement infringes the copyright of a third party.

15.0 DEFAULT: If either party hereto is in material breach of this Agreement and fails to correct such breach within thirty (30) days of written notice thereof from the other, the License hereby granted shall, at the option of the injured party and upon written notice by the injured party to the other party, terminate, whereupon Licensee shall forthwith return the software provided hereunder to EBS and certify in writing that all copies thereof have been destroyed and are no longer in use. EBS shall, in the event of termination, have the right to repossess the software without prejudice to any other rights or remedies which EBS may have at law or in equity. If this Agreement is terminated for any reason before Licensee has paid all software license fees or maintenance/support fees due prior to such termination, Licensee shall immediately pay to EBS any remaining unpaid balances due under this Agreement, and/or EBS shall make full restitution of all license fees paid prior to default notification if defaulted without cause.

16.0 GENERAL PROVISIONS: Whenever possible, each provision of this Agreement and related documents shall be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement is found to be invalid or unenforceable, such finding shall not affect the validity or enforceability of any other provision herein.

16.1 INTEGRATED DOCUMENT: This document, together with any accompanying and incorporated Invoice(s) from Licensor and Purchase Order(s) from Licensee is the complete, integrated and exclusive statement of the agreement between the parties, which supersedes all proposals, oral or written, and all other communications or prior agreements; in the event of any conflicting terms exist between any Purchase Order from Licensee and this Software Licensing Agreement and the Invoice(s) from Licensor, the terms of the Invoice(s) and this Software Licensing Agreement shall govern.

16.2 HEADINGS AND SINGULAR/PLURAL TERMS: The singular and plural forms of words and masculine or feminine terms of words used in this Agreement may be used interchangeably to conform to the factual situation described. Headings used in this Agreement are included solely for purposes of reference and are to be ignored in the construction of this Agreement.

16.3 WAIVER BY CONDUCT: The waiver or failure of either party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further or future right hereunder.

16.4 NOTICES: Notice to either party shall be given by addressing communication to the address set forth on the Invoice(s) from Licensor and the Purchase Order(s) from Licensee, or to such other address as shall be subsequently given in writing. Such notice shall be deposited in the United States mail, postage prepaid, or be delivered by other reasonable, written means.

16.5 JURISDICTION AND FORUM SELECTION: This Agreement shall be governed by and construed in accordance with the laws of the State of California. The site of this Agreement shall be Temecula, California. Any controversy or claim arising under or related to this Agreement shall first be submitted to mediation under the Commercial Mediation Rules of the American Arbitration Association. The provisions of Section 1283.05 of the California Code of Civil Procedure (Right to Discovery) are hereby incorporated into, made a part of, and made applicable to any arbitration hereunder. Thereafter, any unresolved controversies of claims arising hereunder shall be settled by arbitration under the Commercial Rules of the American Arbitration Association. The location of mediation and/or arbitration hereunder shall be the State of California, County of Riverside; if Licensee does not maintain an agent for service of process in the State of California, Licensee consents to service of process by Notice and Acknowledgment, duly mailed to Licensee’s stated address in the incorporated Purchase Order(s) from Licensee, or to the party’s last known business address. Any court of competent jurisdiction may enter a judgment upon the award of the arbitrator. The prevailing party in any action or proceeding hereunder will be entitled to costs and reasonable attorneys' fees. Notwithstanding the above, any party shall be entitled to seek injunctive relief from a court of competent jurisdiction notwithstanding the pendency of arbitration hereunder.

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