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Licensing Agreement
TOOLKIT SOFTWARE LICENSE AGREEMENT 

This TOOLKIT SOFTWARE LICENSE AGREEMENT (the “Agreement”), dated as of the date the Software (as defined below) is downloaded from the Licensor servers (as defined below)  (the “Effective Date”) by and between GTV Solutions, Inc., 49 East 21st St., 9th Fl., New York, NY,  10010 (“Licensor”)  and the party indicated on the corresponding website application form (“Customer”). 

WHEREAS, Licensor has made available for a fee based license the compiled executable Software for download from the Licensor’s servers; 
WHEREAS, Customer desires to download and operate the Server Software solely in accordance with the terms hereunder, and to pay the fees as set forth herein;
WHEREAS, Customer has read the terms of this Agreement and intending to be bound hereby, has manifested its assent by actuation of the website user interface,  initiating the download of the Software, actuating the assent indicated in the installation process and/or using a software key delivered by Licensor in order to operate the software;   
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

1.	Definitions. 

1.1	“Concurrent Users” means the number of individual instances of the Software (or permitted derivative works thereof)  that may by serviced by  the Instant Messaging service operated by Licensor at the same time.
1.2	“Confidential Information” shall mean all non public information of a party and its Affiliates including, without limitation, information relating to such party’s technology, software, business strategy (either as then being conducted or proposed to be conducted), know how, marketing, suppliers, sources of materials, finances, accounting, business relationships, employees, and trade secrets.  Confidential Information shall include the Software, whether delivered as source code or object code or if derived from the source code or object code.  Confidential Information shall not include (i) any information that enters the public domain through no fault of a party bound hereby, (ii) any information that is made available to a party from a source other than the other party that is not bound by a confidentiality agreement with such other party, or (iii) any information that is developed by a party without reference of any kind to the Confidential Information provided that there be evidence of such independent development.
1.3	 “Instant Messaging Service” shall mean the provision of a service operated from Customer’s computer systems that provides employees of the Customer instant messaging capability between them. 
1.4	 “Intellectual Property” shall mean all of the following as they exist in all jurisdictions throughout the world:  (i) patents, patent applications and other patent rights (or equivalent industrial property rights); (ii) trademarks, service marks, trade dress, Internet domain names, designs, whether registered or unregistered; (iii) copyrights, including all source code, object code and documentation related thereto; (iv)  designs, research, processes, procedures, techniques, methods, know how, data, mask works, discoveries, inventions (whether or not patentable), and other proprietary rights.
1.5	“Software” shall mean the executable or object code version of the system development toolkit plus any additional associated command line utilities and scripts available for download at Licensor’s website not otherwise subject to the other licenses available from Licensor. Software does not include the Client Source Code, Client Executable or Server Executable program products offered by Licensor.
1.6	 “Term” shall mean the term of the Agreement as specified in Section 8.
1.7	“Territory” shall mean world-wide, except for those territories or countries to which export of any Product or the Software is prohibited by law, or any countries that are not signatories to the Berne Convention.

2.	LICENSE TERMS; OWNERSHIP RIGHTS

2.1	Software License.  Subject to and in accordance with the terms hereunder, Licensor, to the extent of its legal right to do so, hereby grants Customer a personal, non-transferable, indivisible, non-exclusive right, without any right to sublicense, during the Term and in the Territory, to make copies of the Software only on the disk drives of servers solely on servers under its immediate control that operate the Software, to operate the Software as provided on such servers solely in order to develop an Instant Messaging service to its employees or customers using Licensor’s software products, and to make a single copy of the Software on removable media for backup purposes only.  
2.2	Fees. This license is royalty free.
2.3	No Other Grant.  Customer agrees that this Agreement does not grant any right or license, under any intellectual property rights of Licensor except as expressly provided in this Agreement, and no other right or license is to be implied by or inferred from any provision of this Agreement or by the conduct of the parties. No right herein includes the right to create derivative works of the Software of any kind.  No right to any underlying know-how embodied in the Software is granted or transferred hereby.
2.4	Covenants.
2.4.1	The Software shall not be used by Customer in any manner that would constitute the offer of a “stand-alone” software product suite or Instant Messaging service that is intended to replace or compete with Licensor's service or products, including, without limitation, combining the Software with a third party's communications software products (whether in whole or in part) for distribution outside of the Customer’s premises.
2.4.2	Customer shall only use the Software to support the number of Concurrent Users the Customer has purchased a license for.  Customer shall  not nor permit any third party to defeat, impair or circumvent the software key system that limits the number of licensed Concurrent Users on the Instant Messaging system.
2.4.3	 Customer shall not obscure, delete, skip, or otherwise render invisible the appearance on the End-Users’ display screen of any indicia of source, including Licensor’s marks that may appear during the period of time that the Client Software is loading or preparing to run or immediately thereafter.
2.4.4	Customer shall not, nor permit any third party to  (i) use the Software for any purpose other than to implement an Instant Messaging Service in accordance with the license terms hereunder, (ii) attempt to reverse engineer, reverse translate, disassemble, decrypt, decompile or in any other manner decode the Software or otherwise derive the principals of its operation for any reason whatsoever; (iii) make any modifications, additions, combinations with other software, enhancements, adaptations or translations to or of the Software; and (v) operate or use the Software in any manner other than as expressly permitted hereunder.
2.4.5	Proprietary Rights Notices.   Customer shall not remove any copyright notices, trademark notices or the other proprietary legends of Licensor or its suppliers contained on or in the Software.  
2.5	Ownership.
2.5.1	Ownership by Licensor.  As between the parties, Licensor retains all right, title and interest in and to the Software including all Intellectual Property rights embodied therein. Customer  covenants and agrees that as between the parties, the Intellectual Property of the Licensor is and shall remain the sole and exclusive property of Licensor and Customer shall hold itself out as having any ownership rights with respect thereto.
2.5.2	Confidential Information.  Customer agrees that the source code that may be derived from the Software and any know-how embodied therein is the Confidential Information of Licensor, and expressly and irrevocably waives any claim it has or may have in the future that the delivery of the Software by the means provided constitutes a public disclosure of proprietary know-how or otherwise destroys the trade secret status of the know-how.  
2.5.3	Non-Assertion.  In the event Customer affirmatively challenges the validity, enforceability or ownership by Licensor of any Licensor Intellectual Property embodied within the Software, or voluntarily assists any other party in doing so, this Agreement shall immediately terminate automatically without any further action required on the part of Licensor and without prejudice to any other right or claim which Licensor may have at law or otherwise.  The effects of such termination shall be as set forth in Section 4.
2.5.4	Restrictions.  The Software is the copyrighted information of Licensor and title to all copies is retained by Licensor, whether created by Licensor or Customer.  Except as expressly permitted hereunder, the Software may not be leased, assigned, sublicensed, or otherwise encumbered in whole or in part.

3.	FEES AND OTHER PAYMENTS

3.1	Fees. This license to the Software is royalty free.

4.	TERM AND TERMINATION

4.1	Term. This Agreement shall have an initial term of five (5) years from the Effective Date (“Term”).  The Term (and any renewed Term) of the Agreement, is renewable for an additional five (5) year period by Customer providing notice to Licensor in accordance with Section 8 at least thirty (30) days prior to the expiration of the Term.  
4.2	Termination. The occurrence of the following events shall be deemed material breaches and defaults by Licensor or Customer (as the case may be) hereunder:
4.2.1	if Customer breaches in any material way any representation, warranty or agreement or any other material obligation in this Agreement; 
4.2.2	if Customer fails to make payments to Licensor as required hereunder; or
4.2.3	to the extent permitted by applicable law, in the event of Customer’s dissolution or the liquidation of a party’s assets, or the filing of a petition in bankruptcy or insolvency or for an arrangement or reorganization, by, for or against a party, or in the event of the appointment of a receiver or a trustee for all or a portion of its property, or in the event that a party shall make an assignment for the benefit of creditors or commit any act for, or in, bankruptcy or become insolvent.
 In the event of any of the foregoing, the rights granted hereunder shall instantly, with no action on the part of Licensor being required, revert to Licensor, without prejudice to any rights or claims Licensor may have at law or in equity.
4.3	Effect of Termination or Expiration.
4.3.1	In the event of a termination of this Agreement due to a breach by Customer, Customer shall promptly: (i) permanently destroy or disable all copies of the Software created by or on behalf of  Customer; and (ii) promptly provide Licensor with a written statement certifying that Customer has complied with the foregoing obligations. 
4.3.2	No Liability for Expiration or Lawful Termination.  Neither party shall have the right to recover damages or indemnification of any nature, whether by way of lost profits, expenditures for promotion, payment for goodwill or otherwise made in connection with the business contemplated by this Agreement, due to the expiration or authorized or lawful termination of this Agreement as specified in Section 4.  EACH PARTY WAIVES AND RELEASES THE OTHER FROM ANY CLAIM TO COMPENSATION OR INDEMNITY FOR THE AUTHORIZED TERMINATION AS SPECIFIED IN SECTION 4 OF THE BUSINESS RELATIONSHIP UNLESS TERMINATION IS IN BREACH OF THIS AGREEMENT.

5.	REPRESENTATION AND WARRANTY 

5.1	Customer Representations and Warranties.  Customer warrants and represents that  (i) it is the party indicated in the website application form; (ii) it is a corporation or business entity duly organized under the laws of its jurisdiction; (iii) it has the power and authority to enter into and perform the obligations in this Agreement; and (iv)  there are no claims, litigation or other proceedings pending or threatened which would adversely affect Customer’s ability to perform. 
5.2	Licensor Representations and Warranties.  Licensor warrants and represents that  (i) it is the party indicated in the website application form; (ii) it is a corporation or business entity duly organized under the laws of its jurisdiction; (iii) it has the power and authority to enter into and perform the obligations in this Agreement; and (iv)  there are no claims, litigation or other proceedings pending or threatened which would adversely affect Licensor’s ability to perform. 
5.3	Third Party Representations.  Customer is not authorized to and shall not make any representation or warranty on behalf of Licensor regarding the products or services of Licensor.     

6.	PRESERVATION OF CONFIDENTIALITY.   Customer covenants  to Licensor that it will not, either directly or indirectly through any officer, director, employee, agent, or Affiliate or otherwise, disclose or use any Confidential Information of Licensor either in whole or in part, without the prior written consent of Licensor or in the case of a contractor or Affiliate, without the contractor or Affiliate, as the case may be, being bound by a prior written covenant to keep such disclosure confidential that is at least as restrictive as the covenants set forth in this Agreement, including any applicable survival clause.  A recipient of Confidential Information shall be liable for any damages resulting from any disclosure made by a third party to which such recipient has disclosed the Confidential Information.

7.	LIMITATION OF LIABILITY AND INDEMNITY

7.1	THIS SECTION 7 STATES THE ENTIRE LIABILITY OF LICENSOR WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE SOFTWARE OR DAMAGE TO ANY COMPUTER SYSTEM RESULTING FROM USE OF THE SOFTWARE BY LICENSEE OR ITS AFFILIATES, AGENTS OR END USERS. LICENSOR SHALL HAVE NO LIABILITY WITH RESPECT TO (i) INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY OR (ii) ANY DAMAGE TO ANY COMPUTER SYSTEM AS A RESULT OF USE OF THE SOFTWARE BY CUSTOMER, ITS AFFILIATES, CUSTOMERS OR END-USERS.  
7.2	EXCEPT WITH RESPECT TO A BREACH OF SECTIONS 2 AND/OR  6  OR CUSTOMER EXCEEDING THE SCOPE OF THE LICENSES GRANTED TO IT HEREUNDER,  NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, LOSS OF MARKET OR OPPORTUNITY AND/OR INCIDENTAL OR CONSEQUENTIAL LOSS OR PUNITIVE DAMAGES OR DAMAGE HOWSOEVER ARISING (WHETHER OR NOT ARISING OUT OF THE NEGLIGENCE OF LICENSOR, ITS SUPPLIERS OR CUSTOMER, OR THEIR RESPECTIVE EMPLOYEES OR AGENTS) IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT, PURSUANT TO ANY CLAIM IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHER THEORY.  
7.3	General Disclaimer.  EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND ANY SUCH WARRANTIES OR REPRESENTATIONS ARE HEREBY EXPRESSLY DISCLAIMED.  CUSTOMER AFFIRMATIVELY UNDERTAKES TO USE THE SOFTWARE AT ITS OWN RISK.
7.4	Indemnity.		CUSTOMER HEREBY UNDERTAKES TO INDEMNIFY LICENSOR FROM ANY CLAIM BROUGHT BY A THIRD PARTY AGAINST LICENSOR OR ITS SUCCESSORS OR ASSIGNS ARISING (WHETHER IN WHOLE OR IN PART)  FROM THE PROVISION OF ANY SERVICE BY CUSTOMER THAT IS OR WAS SUPPORTED BY OPERATION OF THE SOFTWARE BY CUSTOMER OR ITS AGENTS OR ASSIGNS.
7.5	The provisions of this Section 7 allocate the risks under this Agreement between Licensor and Customer, and the parties have relied upon the limitations set forth herein in determining whether to enter into this Agreement.

8.	NOTICES    All notices and other communications hereunder shall be in writing and shall be deemed given when delivered personally,  upon a receipt of a transmittal confirmation if sent by facsimile or like transmission, and on the next business day when sent by Federal Express, Express Mail or similar overnight courier service to the parties at the addresses or facsimile numbers provided by Licensee on the registration page of the website, or if no such information is provided accurately, then by email message to the email address provided by Licensee in order to receive any software key.

9.	ASSIGNMENT.  Customer shall not assign its respective rights and obligations, in whole or in part, under this Agreement without the written consent of the Licensor.  This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.  Any assignment of this Agreement in violation of this paragraph shall be null and void.

10.	MISCELLANEOUS

10.1	No Waiver.  The failure of either party to enforce any provision of this Agreement shall not be deemed a waiver of that provision.  The rights of a party under this Section 10 are in addition to any other rights and remedies permitted by law or under this Agreement. All remedies, rights, undertakings, obligations and agreements contained in this Agreement shall be cumulative and none of them shall be in limitation of any other remedy, right, undertaking, obligation or agreement of either party.
10.2	Survival.  Except as otherwise set forth herein, the parties’ rights and obligations under Sections 1, 2.4, 6, 7, 8, 9 and 10 shall survive expiration or termination of this Agreement.
10.3	Irreparable Harm.  The parties acknowledge that breach of Sections 2 or 6  would cause irreparable harm, the extent of which would be difficult to ascertain.  Accordingly, they agree that, in addition to any other legal remedies to which a non-breaching party might be entitled, such party may be entitled to obtain immediate injunctive relief in the event of a breach of the provisions of such Sections.
10.4	Entire Agreement.  This Agreement contains the entire understanding of the parties hereto relating to the subject matter hereof and cannot be changed or terminated except by an instrument signed by an officer of Licensor and an officer of Customer.  
10.5	Independent Contractors.  Notwithstanding anything to the contrary herein, the parties hereto shall be deemed independent contractors and nothing herein shall be construed as establishing a joint venture or partnership.
10.6	Controlling Law. The parties agree that this Agreement shall be governed in all respects and be construed by the laws of the New York State, U.S.A. as applied to contracts entered into solely between residents of, and to be performed entirely within such State, without application of its conflict of laws provisions.  Each of the Parties hereby (i) irrevocably  consents and agrees that any legal or equitable action or proceeding arising under or in connection with this Agreement shall be brought in the Federal or State courts of New York, (ii) by execution of this Agreement, irrevocably submits to and accepts the jurisdiction of such courts, (iii) waives any defense that such courts are not convenient or an improper venue and (iv) consents that any service of process may be made in the manner set forth in Section 8 or by any other method of service permitted by law. 
10.7	Interpretation.  The parties hereto are sophisticated and have been represented by lawyers throughout the negotiation of this Agreement.  As a consequence, the parties do not believe that the presumptions of any laws or rules relating to the interpretation of contracts against the drafter of any particular clause should be applied in this case and therefore waive their effects. 
10.8	Language.  This Agreement is in the English language only, which language shall be controlling in all respects, and all versions of this Agreement in any other language shall be for accommodation only and shall not be binding on the parties to this Agreement.  All communications and notices made or given pursuant to this Agreement, and all documentation and support to be provided, unless otherwise noted, shall be in the English language.
10.9	Severability.  If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restriction of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
10.10	Costs and Expenses.  Each party shall pay its own costs and expenses incurred in connection with this Agreement and each other transaction and agreement contemplated hereunder, including the costs and fees of its counsel and other representatives, whether or not the transactions contemplated hereunder are consummated.
10.11	Headings.  The headings of the Sections hereof are provided for convenience only and are not to serve as a basis for interpretation or construction, and shall not constitute a part, of this Agreement.
10.12	Assent and Counterparts.  This Agreement may be executed by manifestation of assent through a website click through mechanism or in one or more counterparts, each of which shall be deemed an original, and all of which, when taken together, shall constitute one and the same instrument.  Customer, by virtue of using the Software in any way, assents to irrevocably waiving any defense or claim that the manner or form of assent to the terms hereunder is defective and the terms and obligations thereby unenforceable.
Download the Licensing Agreement (PDF)
I HAVE READ AND ACCEPT THE TERMS AND CONDITIONS OF THE LICENSE PROVIDED ABOVE AS DEFINED IN THIS AGREEMENT