Legal AirKast Agreement

LEGAL AIRKAST AGREEMENT

This Legal AirKast Agreement (the "Agreement") is made and entered into as of by and between Licensor: , with principal address at , and Licensee: , with principal address at .

RECITALS

WHEREAS, Licensor is the owner or authorized licensor of the proprietary AirKast technology, software, documentation and related materials identified on Exhibit A and further described in this Agreement (collectively, "AirKast Technology");

WHEREAS, Licensee desires to obtain, and Licensor is willing to grant, a limited license to use the AirKast Technology under the terms and conditions set forth herein;

WHEREAS, the parties intend for this Agreement to set forth the complete understanding with respect to the license, use, support, payments, confidentiality and allocation of rights between them.

NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, the parties agree as follows:

1. DEFINITIONS

1.1 "AirKast Technology" means the software, firmware, documentation, APIs, tools and other materials provided or made available by Licensor to Licensee under this Agreement, including updates and derivative works.

1.2 "Licensed Materials" means the specific components of the AirKast Technology identified in Exhibit A as delivered to Licensee, together with any modifications or enhancements made during the Term.

1.3 "Confidential Information" means any non-public information disclosed by one party to the other, whether marked confidential or not, including technical, commercial and financial information, but excluding information that is publicly known through no breach by the receiving party.

2. LICENSE GRANT

2.1 License. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee a limited, non-exclusive, non-transferable (except as permitted in Section 12), revocable license to use the Licensed Materials solely for Licensee's internal business operations during the Term specified in Section 4.

2.2 Restrictions. Licensee shall not (a) sublicense, sell, rent, lease, distribute or otherwise transfer the Licensed Materials to any third party except as expressly authorized in writing; (b) reverse engineer, decompile or disassemble the Licensed Materials except to the extent permitted by applicable law; or (c) remove any proprietary notices or labels.

3. FEES AND PAYMENT

3.1 Fees. In consideration for the license granted herein, Licensee shall pay Licensor the fees set forth in the fee schedule below. Unless otherwise stated, fees are exclusive of taxes.

3.2 Payment Terms. Fees are due within the number of days specified below from invoice receipt and late payments shall accrue interest at the lesser of 1.5% per month or the maximum rate permitted by law.

4. TERM AND TERMINATION

4.1 Term. This Agreement commences on the Effective Date and continues for the initial term specified below, unless earlier terminated in accordance with this Section.

4.2 Termination for Cause. Either party may terminate this Agreement for material breach by the other party if such breach remains uncured thirty (30) days after written notice specifying the breach.

4.3 Effect of Termination. Upon termination, Licensee shall cease all use of the Licensed Materials and, at Licensor's election, return or certify destruction of all copies. Termination shall not relieve Licensee of its obligation to pay accrued fees nor limit any remedy available to Licensor for breaches occurring prior to termination.

5. CONFIDENTIALITY

5.1 Non-Disclosure. Each party shall hold Confidential Information of the other in strict confidence and shall not disclose it to third parties except to employees, contractors or advisors who have a need to know and who are bound by confidentiality obligations no less protective than those in this Section.

5.2 Exclusions. Confidential Information does not include information that (a) was known without restriction to the receiving party prior to receipt from the disclosing party; (b) becomes publicly known through no wrongful act of the receiving party; (c) is rightfully received by the receiving party from a third party without restriction; or (d) is independently developed without use of the disclosing party's Confidential Information.

6. INTELLECTUAL PROPERTY

6.1 Ownership. Except for the limited license expressly granted herein, Licensor retains all right, title and interest in and to the AirKast Technology, Licensed Materials and all related intellectual property rights. Licensee acquires no ownership interest by this Agreement.

6.2 Feedback. Any suggestions, enhancement requests or other feedback provided by Licensee concerning the AirKast Technology shall be deemed Licensor Confidential Information and Licensor shall have a perpetual, irrevocable, royalty-free license to use and incorporate such feedback.

7. REPRESENTATIONS AND WARRANTIES

7.1 Mutual Representations. Each party represents and warrants that it has the full power and authority to enter into this Agreement and to perform its obligations hereunder.

7.2 Licensor Warranty. Licensor represents that, to its knowledge, the Licensed Materials do not infringe any third party intellectual property rights. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, LICENSOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

8. INDEMNIFICATION

8.1 Licensor Indemnity. Licensor shall defend Licensee against any third party claim alleging that the Licensed Materials infringe a third party's intellectual property and shall indemnify Licensee for damages finally awarded or settlement amounts, provided Licensee (a) promptly notifies Licensor of the claim, (b) gives Licensor sole control of the defense and settlement, and (c) cooperates in the defense at Licensor's expense.

8.2 Licensee Indemnity. Licensee shall indemnify, defend and hold harmless Licensor from and against any third party claims arising from Licensee's breach of Section 2.2 or misuse of the Licensed Materials.

9. LIMITATION OF LIABILITY

EXCEPT FOR LIABILITY ARISING FROM A PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, NEITHER PARTY SHALL BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. EACH PARTY'S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE BY LICENSEE TO LICENSOR IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

10. INSURANCE

Each party shall maintain insurance coverage customary for its business and sufficient to cover its liabilities under this Agreement. Upon request, the parties shall provide certificates of insurance to the other.

11. COMPLIANCE WITH LAWS

Each party shall comply with all applicable laws, rules and regulations in performing its obligations under this Agreement, including export controls and privacy laws applicable to the Licensed Materials and any data processed thereunder.

12. NOTICES

All notices required or permitted under this Agreement shall be in writing and delivered to the contact information set forth below. Notices shall be effective on receipt.

13. ASSIGNMENT

Neither party shall assign this Agreement without the prior written consent of the other, except that either party may assign to an affiliate or in connection with a merger, acquisition or sale of substantially all assets provided the assignee assumes the assigning party's obligations hereunder.

14. AMENDMENTS; WAIVER; COUNTERPARTS

This Agreement may be amended or modified only by a written instrument signed by authorized representatives of both parties. No waiver shall be effective unless in writing. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

15. GOVERNING LAW; ENTIRE AGREEMENT; SEVERABILITY

15.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the jurisdiction specified below without regard to its conflicts of law principles.

15.2 Entire Agreement. This Agreement, including all exhibits and schedules attached hereto, constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and understandings, whether written or oral.

15.3 Severability. If any provision of this Agreement is held invalid or unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable, and the remaining provisions shall remain in full force and effect.

MISCELLANEOUS

The parties have executed this Agreement through their duly authorized representatives as of the date first written above.

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