Netkey Manager Platform Terms of Service and License Agreement

TERMS AND CONDITIONS

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE ACCOMPANYING SOFTWARE. BY INSTALLING, DOWNLOADING OR USING THE ACCOMPANYING SOFTWARE, YOU (HEREAFTER THE LICENSEE) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT INSTALL OR USE THE ACCOMPANYING SOFTWARE AND RETURN ALL COPIES OF THE SOFTWARE TO NETKEY.

1. Definitions

“Documentation” shall mean any user instructions, manuals or other materials, and on-line help files regarding the use of Netkey Platform that are generally made available by Netkey in connection with Netkey Platform.

“SSD” means a self service device consisting of no more than one (1) CPU and one (1) monitor.

“Netkey Platform” means Netkey's enterprise software, consisting of the server software installed and operating on Licensee's servers, which is accessed by Licensee and the SSDs via an Internet connection, and client-side software installed and operating on the SSDs.

2. License Grant

2.1 Netkey Platform.

Upon signing a separate license agreement (the "Agreement") and payment of the license fees and other related charges specified in the Agreement (the "Fee"), Netkey hereby grants to Licensee, for the period set forth in the Agreement, a worldwide, nontransferable, nonexclusive right and license (without right to sublicense) to use Netkey Platform on (i) Licensee's servers, and (ii) those number of SSDs for which Licensee has purchased licenses under the Agreement.

2.2 Copies.

Licensee may make a reasonable number of machine-readable copies of Netkey Platform for backup or archival purposes. Licensee shall maintain accurate and up-to-date records of the number and location of all copies of Netkey Platform and inform Netkey in writing of such location(s). All copies of Netkey Platform or of any element of Netkey Platform will be subject to all terms and conditions of the Agreement. Whenever Licensee is permitted to copy or reproduce all or any part of Netkey Platform, Licensee shall reproduce any and all titles, trademark symbols, copyright symbols and legends, and other proprietary markings on or in Netkey Platform.

2.3 Limitations.

Licensee shall not itself, nor through any parent, subsidiary, affiliate, agent or other third party: (a) modify, adapt, sell, lease, assign, license, sublicense or otherwise transfer Netkey Platform or the Documentation or allow third party access to Netkey Platform, except as provided in the Agreement; (b) use or access those portions of Netkey Platform for which it has not paid Netkey the applicable Fee, (c) modify, decompile, disassemble, translate or reverse engineer Netkey Platform, in whole or in part; (d) allow access to Netkey Platform by any party other than Licensee's employees; (e) write or develop any derivative software or any other software program based upon Netkey Platform or any Netkey designated confidential information; (f) use Netkey Platform to provide processing services to third parties, or otherwise use Netkey Platform on a service bureau basis to third parties; (g) remove or alter any proprietary or copyright notices included in Netkey Platform, (h) use Netkey Platform on more than the number of SSDs for which Licensee has remitted the applicable Fee, or (i) provide, disclose, divulge or make available to, or permit use of Netkey Platform by any third party, without Netkey's prior written consent, which consent may be granted in Netkey's sole discretion.

2.4 Ownership; No License.

All right, title, and interest, including without limitation all copyrights, trade secrets, patents, trademarks, service marks, and all other proprietary rights in and to Netkey Platform will remain the property of Netkey or its licensors. In addition, Netkey shall own all right, title and interest in and to any modifications to Netkey Platform and to any customized configuration or enhancement performed on Netkey Platform by Netkey at Licensee's request.

3. Fees

Licensee shall pay Netkey the Fee in accordance with the terms set forth in the Agreement. The amount of the Fee shall be agreed upon by the Licensee and Netkey in the Agreement prior to commencement of the license term. The Fee and any other related charges are exclusive of all federal, state, and local taxes, shipping, handling and insurance charges, and, where applicable, duties, tariffs and import fees, all of which Licensee agrees to pay when due. Any payment which is not made when due shall be subject to a service charge of 1.5% per month, calculated on the number of days such payment is delinquent, or, if lower, the maximum charge permitted under applicable law. This Section 3 shall in no way limit any other remedies available to Netkey.

4. Audit

Licensee agrees to make and to maintain sufficient books, records and accounts regarding its use of Netkey Platform in order to calculate and confirm its payment obligations hereunder. Netkey or its authorized representatives may audit Licensee's use of Netkey Platform at any time. Licensee agrees to cooperate with Netkey's audit and provide Netkey with reasonable assistance and access to information, including providing Netkey representatives with access to Licensee's premises and applicable books, records and computers. Licensee agrees to pay any underpaid license fees. If the audit reveals that Licensee has underpaid Fees by 5% or more of the total fees paid and payable to Netkey, in addition to the underpaid fees Licensee shall be responsible for all costs incurred to perform the audit and collect the underpaid fees.

5. Term and Termination

5.1 Term.

The term of this license shall be set forth in the Agreement. The Agreement may be terminated as follows:

5.2 By Licensee.

Licensee may terminate the Agreement for convenience upon at least 60 days prior written notice to Netkey. Licensee may terminate its use of Netkey Platform and the Netkey Platform Services for cause as a result of Netkey's breach of the terms herein upon 30 days prior written notice to Netkey, provided Licensee gives Netkey the opportunity to cure such breach within such 30 day period. In the event of any termination by Licensee, whether for convenience or cause, Licensee shall not be entitled to a refund for any monies paid to Netkey to date and Licensee shall remain obligated to pay Netkey the applicable fees owed for the remainder of the then current term. This payment obligation shall survive the termination of the use of Netkey Platform.

5.3 By Netkey.

Netkey may terminate the Agreement for cause as a result of Licensee's breach of the terms of the Agreement upon 30 days prior written notice to Licensee, provided Netkey gives Licensee the opportunity to cure such breach within such 30 day period.

5.4 By Either Party.

Either party may terminate the Agreement upon 10 days prior written notice in the event either party hereto (a) shall become bankrupt or insolvent or an order appointing a receiver of it or of the major part of its property shall be made, or an order shall be made approving a petition or answer seeking its reorganization under any applicable bankruptcy law, or (b) shall institute proceedings for a voluntary bankruptcy or apply for or consent to the appointment of a receiver of itself or its property, or shall make an assignment for the benefit of its creditors, or shall admit in writing its inability to pay its debts generally as they become due, for the purpose of seeking a reorganization under the federal bankruptcy laws or otherwise.

6. Disclaimer of Warranties and Limitation of Liability

6.1 Disclaimer.

EXCEPT AS SET FORTH ABOVE, NETKEY MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING OR RELATING TO NETKEY PLATFORM OR ANY RELATED DOCUMENTATION, OR ANY MATERIALS OR SERVICES FURNISHED OR PROVIDED TO LICENSEE UNDER THE AGREEMENT. NETKEY PLATFORM AND DOCUMENTATION IS PROVIDED TO LICENSEE ON AN AS IS BASIS. NETKEY HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND UNINTERRUPTED ACCESS WITH RESPECT TO NETKEY PLATFORM, AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING. NETKEY DOES NOT WARRANT THAT NETKEY PLATFORM WILL MEET LICENSEE'S REQUIREMENTS OR THAT THE OPERATION OF NETKEY PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE. LICENSEE IS SOLELY RESPONSIBLE FOR THE SELECTION OF NETKEY PLATFORM TO ACHIEVE ITS INTENDED RESULTS AND FOR THE RESULTS ACTUALLY OBTAINED.

6.2 Limitation of Liability.

IN NO EVENT WILL NETKEY BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF NETKEY PLATFORM, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF NETKEY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NETKEY'S LIABILITY UNDER THE AGREEMENT FOR DAMAGES WILL NOT, IN ANY EVENT, EXCEED THE FEES PAID BY LICENSEE TO NETKEY FOR THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION UNDERLYING THE APPLICABLE CLAIM FIRST ACCRUES. NO ACTION MAY BE BROUGHT BY LICENSEE MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. THE PARTIES ACKNOWLEDGE THAT THESE LIMITATIONS OF LIABILITY ARE REASONABLE AND FORM AN ESSENTIAL BASIS OF THE BARGAIN. The provisions of this Section 6 allocate risks between Licensee and Netkey. The Fee reflects this allocation of risks and limitation of liability.

7. Miscellaneous

7.1 Nonassignment/Binding Agreement.

Neither the Agreement nor any rights under the Agreement, except as set forth therein, may be assigned or otherwise transferred by Licensee, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of Netkey, which consent will not be unreasonably withheld. Subject to the foregoing, the Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.

7.2 Notices.

Any notice required or permitted under the Agreement or required by law must be in writing and must be (a) delivered in person, (b) sent by first class registered mail, or air mail, as appropriate, or (c) sent by overnight air courier, in each case properly posted and fully prepaid to the parties at the addresses first set forth above. Either party may change its address for notice by notice to the other party given in accordance with this Section 7.2. Notices will be considered to have been given at the time of actual delivery in person, 3 business days after deposit in the mail as set forth above, or one day after delivery to an overnight air courier service.

7.3 No Warranties.

No employee, agent, representative or affiliate of Netkey has authority to bind Netkey to any oral representations or warranty concerning Netkey Platform. Any written representation or warranty not expressly contained in the Agreement will not be enforceable.

7.4 Force Majeure.

Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of the Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, terrorism or social unrest, government acts, earthquake, fire and explosions, but the inability to meet financial obligations is expressly excluded.

7.5 Waiver.

Any waiver of the provisions of the Agreement or of a party's rights or remedies under the Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of the Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party's rights under the Agreement and will not in any way affect the validity of the whole or any part of the Agreement or prejudice such party's right to take subsequent action. No exercise or enforcement by either party of any right or remedy under the Agreement will preclude the enforcement by such party of any other right or remedy under the Agreement or that such party is entitled by law to enforce.

7.6 Severability.

If any term, condition, or provision in the Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in the Agreement. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.

7.7 Integration; Amendment.

The Agreement (including any supplement or modifications thereto signed by both parties) contains the entire agreement of the parties with respect to the subject matter of the Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. The Agreement may not be amended, except by a writing signed by both parties.

7.8 Purchase Orders.

No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Licensee may use in connection with the acquisition or licensing of Netkey Platform will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, the Agreement, regardless of any failure of Netkey to object to such terms, provisions or conditions.

7.9 Export.

Licensee may not export or re-export Netkey Platform without the prior written consent of Netkey and without the appropriate United States and foreign government licenses.

7.10 Survival.

Except as otherwise set forth herein, the parties' rights and obligations pursuant to Sections 2.3, 2.4, 4, 5, and 7 shall survive any termination of the Agreement.

7.11 Confidentiality.

Netkey Platform and all related source code and Documentation remain the confidential, proprietary and trade secret information of Netkey. Licensee agrees not to disclose such information to any third party and shall maintain the confidentiality of such information in a manner the same as it maintains the confidentiality of its own confidential information, but not less than a reasonable degree of care.

7.12 Publicity.

Licensee acknowledges that Netkey may desire to use Licensee's name and logo in press releases, product brochures and financial reports indicating that Licensee is a customer of Netkey, and Licensee agrees that Netkey may use its name and logo in such a manner.

7.13 Governing Law.

The Agreement will be interpreted and construed in accordance with the laws of the State of Connecticut and the United States of America, without regard to conflict of law principles. The parties hereby consent to the exclusive jurisdiction of the state and federal courts located in New Haven County, Connecticut for resolution of any disputes arising out of the Agreement.

Copyright � 2002 - by Netkey Inc., East Haven, CT. All rights reserved.