inClick Ad Server - inClick4 4.0.018-2

EULA - End User License Agreement

LICENSE AGREEMENT
PET TECHNOLOGIES, INC. d/b/a INMOTION GROUP ("IMG") INCLICK AD SERVER LICENSE AGREEMENT ("AGREEMENT")

IMPORTANT: READ THESE TERMS CAREFULLY BEFORE INSTALLING THE SOFTWARE KNOWN AS THE "INCLICK AD SERVER," AS INSTALLED BY THE INSTALLATION PROCESS, IN MACHINE-EXECUTABLE FORM ONLY, AND ANY RELATED DOCUMENTATION (COLLECTIVELY, THE "SOFTWARE") BY INSTALLING, OR OTHERWISE USING THIS SOFTWARE, YOU (THE "LICENSEE") ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE NOT AN AUTHORIZED USER OF THE SOFTWARE AND IT IS YOUR RESPONSIBILITY TO EXIT THE INSTALLATION PROGRAM WITHOUT INSTALLING THE SOFTWARE, OR TO DELETE THE SOFTWARE FROM YOUR COMPUTER.

1. License. Subject to the terms and conditions of this Agreement, including, without limitation, Section 2 hereof, IMG hereby grants to Licensee, during the Term (as defined below), a limited, a non-exclusive license (the "License") to: (i) install and operate the Software on a computer or a computer network owned or operated by Licensee; (ii) make copies of the Software for backup purposes only.

2. Installation and use. Each installation of the inClick Ad Server is assigned an Installation Identity (an "Instance").

3. Mandatory Activation. THERE ARE TECHNOLOGICAL MEASURES IN THIS SOFTWARE THAT ARE DESIGNED TO PREVENT UNLICENSED USE OF THE SOFTWARE. You will not be able to exercise your rights to the Software under this agreement after a finite number of days unless you activate your copy of the Software in the manner described during the Installation Process. IMG will use those measures to confirm you have a legally licensed copy of the Software. If you are not using a licensed copy of the Software, you are not allowed to install the Software or future Software updates.

4. Termination. This Agreement and the License hereunder shall be in effect from and after the date Licensee installs the Software on a computer in accordance with the terms and conditions hereof and shall continue perpetually unless terminated in accordance with this Section 4. This Agreement shall be automatically terminated upon any breach by Licensee of any term or condition of this Agreement. Such period shall be referred to herein as the "Term". Within five (5) business days of any such termination, Licensee shall return the Software to IMG (or, at IMG's sole discretion and only at IMG's direction, destroy the Software and certify in writing to IMG that said Software has been destroyed). Upon return of the Software or upon receipt of notice of the destruction of the Software, as appropriate, this Agreement shall terminate and IMG shall have no further obligations to Licensee. Articles 5, 6, 7, 8, 9, 11, 12, 13 and 15 hereof shall survive the expiration or termination of this Agreement for any reason.

5. Intellectual Property Rights. Licensee hereby acknowledges and agrees that IMG or its licensors own and retain all rights, title, and interest in and to the Software, regardless of the form or media in or on which the original or other copies may subsequently exist including, without limitation, all copyrights, trademarks, patents and trade secret rights inherent therein or appurtenant thereto. This Agreement shall not constitute a sale of the Software and no title or proprietary rights to the Software are transferred to the Licensee hereby. Licensee acknowledges that the Software is a unique, confidential and valuable asset and trade secret of IMG or its licensors, and IMG or its licensors shall have the right to obtain all equitable and legal redress which may be available to it for the breach or threatened breach of this Agreement including, without limitation, injunctive relief.

6. Warranty; Disclaimer. THE SOFTWARE IS BEING LICENSED HEREUNDER WITH NO WARRANTY WHATSOEVER. LICENSEE ACKNOWLEDGES THAT ITS USE OF THE SOFTWARE IS AT ITS OWN RISK. THE SOFTWARE IS PROVIDED SOLELY ON AN "AS-IS" BASIS. IMG AND ITS LICENSORS MAKE, AND LICENSEE RECEIVES, NO WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE. IMG EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NONINFRINGEMENT. IMG DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE SHALL BE OPERABLE, UNINTERRUPTED OR ERROR FREE OR THAT IT WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT.

7. No Liability. IN NO EVENT SHALL IMG OR ITS LICENSORS BE LIABLE FOR ANY DIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES OR LOST PROFITS (EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, INCLUDING WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OF DATA, OR ANY OTHER DAMAGES, HOWEVER CAUSED, AND UNDER ANY THEORY OF LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND IN SUCH CASE AND ONLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW, THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO LICENSEE. WITHOUT LIMITATION OF THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL LICENSOR'S TOTAL AGGREGATE LIABILITY TO LICENSEE AND ANY OF ITS SUB-LICENSEES (REGARDLESS OF THE LENGTH OF THE TRAIL OF SUBLICENSES) FOR ANY AND ALL CLAIMS ARISING HEREUNDER, INCLUDING WITHOUT LIMITATION ARISING OUT OF YOUR USE OF THE SOFTWARE, EXCEED THE SUM OF $100.

8. Indemnity. Licensee will, at its own expense, defend any action brought by a third party against IMG to the extent that such action is based on a claim arising from or relating to: (a) Licensee's use of the Software, (ii) any distribution of the Software by Licensee or by any of or by any sub-licensee, regardless of privacy of contract and regardless of the length of the trail of sublicenses, (iii) any claims based upon warranties, guarantees or representations made by Licensee or any of its employees, agents or sub-licensees; or (iv) any use of the Software by any of the foregoing sub-licensees. IMG shall have the exclusive right to control such defense. In no event shall Licensee settle any such claim, lawsuit or proceeding without IMG's prior written approval.

9. U.S. Government restricted rights. The Software provided hereunder is a "commercial item," as that term is defined in 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, the Software made available to the United States of America, its agencies and/or instrumentalities, is provided with only those rights set forth in this Agreement. Use, duplication or disclosure of the Software by the government is subject to the restrictions as set forth in subparagraph (c)(1) and (2) of the Commercial Computer Software-Restricted Rights clause at 48 C.F.R. 52.227-19, as amended, or any successor regulations thereto.

10. Export and Import Restrictions. Licensee shall be solely responsible for obtaining any required regulatory approvals for exportation, importation and/or distribution of the Software.

11. Lite License. You may run any number of instances of the inClick Ad Server Lite License. Each instance is assigned an Installation Identity assigned during the installation process.

11.1. Licensing fee's. The Lite License is provisioned per account. Lite licensing is provided at no cost with no time-based expiration. An Allowance Restriction of $500.00 USD in total Posted Advertiser Credits is provided for the duration of the Lite License. Exceeding this Allowance Restriction will result in a required conversion to a Standard License, a conversion to an Enterprise License, or a termination of this agreement as defined in Article 4.

11.2. Conversion to Standard License: Licensee may, at any time, convert all Lite Licensed ad servers (all Installation ID's) to a Standard License or Enterprise License, at the then current corresponding License cost.

11.3. Restrictions - Lite License. You shall not copy, reverse engineer, decompile, disassemble, modify or make derivative works of the Software, geographical information, screen outputs or prints in whole or in part. Further, you shall not rent, disclose, publish, sell, assign, lease, rent, sublicense, market, or transfer the Software, geographical information, prints or screen outputs or any part thereof or use it in any manner not expressly authorized by this Agreement. Any attempt to transfer any of the rights, duties or obligations hereunder except as expressly provided for in this Agreement is void. The Software contains confidential and trade secret information of IMG, and you shall at all times take reasonable steps to protect the confidentiality of such information.

11.5.1. No Rental/Commercial Hosting. You may not rent, lease, lend or provide commercial hosting services with the Software.

11.5.2. No Separation of Components. The Software is licensed as a single product. Its component parts may not be separated for use beyond that of the Software.

12. Standard License. You may run any number of instances of the inClick Ad Server Standard License. Each instance must be assigned an Installation Identity as assigned during the installation process.

12.1. Licensing fee's. All Standard License instances are subject to the Performance Lease fees set forth in the Fee Schedule as set forth on Exhibit A. All fees will be assessed in US Dollars. Your account and all transactions are made and displayed in U.S. dollars. If your account becomes delinquent, your account will be subject to a five(5) percent late penalty fee calculated on your Transaction Volume for a minimum period of 12 months per occurrence. Fees are calculated monthly on the sum of all posted credits to advertiser accounts associated to your inClick account. Fees are invoiced on the first(1) day of each month and are due on the seventh(7) of the same month.

12.2. Conversion to Enterprise License: Licensee may, at any time, convert any single Standard Licensed ad server (an Installation ID) to an Enterprise License, Source Edition or Lite Edition, at the then current corresponding Enterprise License cost.

12.3. Conversion Cost Reduction: Should Licensee upgrade to an Enterprise License, the License Cost shall be reduced by the API Activation Fee (if activated previously) and the sum of the most recent six (6) months lease payments prior to the date of Conversion but not to exceed the License Cost.

12.4. Conversion of Multiple Installation IDs: Licensee may convert or add additional Installation IDs on a single inClick.net account at 20% of the existing Enterprise License cost.

12.5. Restrictions - Standard License. You shall not copy, reverse engineer, decompile, disassemble, modify or make derivative works of the Software, geographical information, screen outputs or prints in whole or in part. Further, you shall not rent, disclose, publish, sell, assign, lease, rent, sublicense, market, or transfer the Software, geographical information, prints or screen outputs or any part thereof or use it in any manner not expressly authorized by this Agreement. Any attempt to transfer any of the rights, duties or obligations hereunder except as expressly provided for in this Agreement is void. The Software contains confidential and trade secret information of IMG, and you shall at all times take reasonable steps to protect the confidentiality of such information.

12.5.1. No Rental/Commercial Hosting. You may not rent, lease, lend or provide commercial hosting services with the Software.

12.5.2. No Separation of Components. The Software is licensed as a single product. Its component parts may not be separated for use beyond that of the Software.

13. Enterprise License. You may run, at any one time, one instance of an Enterprise License server Software.

13.1. Each Enterprise License includes one year of Support as outlined in Article 13.

13.2. Each additional instance may be licensed for 20% of the original Enterprise License cost.

13.3. Support services are provided for a period of one(1) year for each Enterprise License.

13.3.1. Renewal of Support for the first Enterprise instance is 20% of the original Enterprise License.

13.3.2. Renewal of Support for each subsequent qualified Enterprise Instance is 20% of 12.3.1.

13.4. Restrictions - Enterprise License. You shall not you shall not copy, rent, disclose, publish, sell, assign, lease, rent, sublicense, market, distribute, or transfer the Software, geographical information, prints or screen outputs or any part thereof or use it in any manner not expressly authorized by this Agreement. Any attempt to transfer any of the rights, duties or obligations hereunder except as expressly provided for in this Agreement is void. The Software contains confidential and trade secret information of IMG, and you shall at all times take reasonable steps to protect the confidentiality of such information.

13.4.1. No Rental/Commercial Hosting. You may not rent, lease, lend or provide commercial hosting services with the Software.

13.4.2. No Separation of Components. The Software is licensed as a single product. Its component parts may not be separated for use beyond that of the Software.

14. Standard Support. inClick agrees to provide reasonable technical support through a public medium free of charge for the duration of the active License Agreement. For purposes of this Agreement, "public medium" refers to a suitable online forum, news group, or reporting system to be monitored by inClick staff. inClick may, at its sole discretion, provide personal technical support free of charge, but specifically reserves the right to charge for such personal technical support. For purposes of this Agreement, "personal technical support" refers to telephone support, electronic mail, or other online methods. You agree that any offer or actual provision of technical support by inClick does not constitute any warranty regarding the Program and/or Documentation except as otherwise provided in this Agreement.

15. Miscellaneous. Any controversy or dispute arising between the parties under this agreement shall be resolved in accordance with MCL 600.5001-600.5035 by a 3-person arbitration panel. Each party shall select an arbitrator and the arbitrators chosen by the parties shall select a third arbitrator. If the parties and/or the arbitrators selected by each of them cannot agree upon the selection of a third arbitration, the third arbitrator shall be chosen by a court of competent jurisdiction. Each party shall pay for the arbitrator they select and one-half of the cost of the third arbitrator. The arbitration hearing shall be conducted in the office of the neutral arbitrator unless the parties agree otherwise. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction. There is no relationship of agency, partnership, joint venture, employment or franchise between the parties. Licensee or its sub-licensees do not have the authority to bind IMG or to incur any obligation its behalf or to represent itself as IMG's agent or in any way that might result in confusion as to the fact that the parties are separate and distinct entities. The section headings herein are provided for convenience only and have no substantive effect on the construction of this Agreement. If any provision of this Agreement is held to be unenforceable, this Agreement shall be construed without such provision. The failure by IMG to exercise any right hereunder shall not operate as a waiver of IMG's right to exercise such right or any other right in the future. This Agreement may be amended only by a written document executed by a duly authorized representative of each of the parties. This Agreement constitutes the complete and exclusive statement of the terms and agreement between IMG and Licensee and supersedes all prior representations, understandings and communications, oral or written, between the parties with respect thereto, including memoranda of agreement. In the event legal action is taken by IMG or its licensors to enforce any provision of this Agreement, all costs and expenses, including reasonable attorneys' fees and expenses, incurred by IMG or its licensors shall be paid by Licensee, in addition to other damages to which IMG or its licensors may be lawfully entitled. Licensee agrees that it will not refer to the Software or to the existence of this Agreement nor will it use IMG's name in any press releases, advertising, marketing or other materials without IMG's advanced written consent in each instance. Any notice provided by Licensee to IMG pursuant to this Agreement shall be in writing to inMotion Group, Inc. at 116 Kenyon, Troy Michigan, 48083, USA, and shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if mailed, three (3) days after deposit in the U.S. mail, postage prepaid, certified mail, return receipt requested; or (iii) if by next day delivery service, upon such delivery. Any notice provided by IMG to Licensee pursuant to this Agreement shall be sent to the e-mail or mailing address provided by Licensee upon registering on IMG's Web site, and shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if mailed, three (3) days after deposit in the U.S. mail, postage prepaid, certified mail, return receipt requested; or (iii) if by next day delivery service, upon such delivery. Either party may change its address by giving written notice to the other party.