Software License Agreement

Software License Agreement

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE INSTALLATION AND USE OF THE PROGRAM.

EVERGREEN INTERNET WILL LICENSE THE PROGRAM TO YOU (LICENSEE) ONLY IF YOU FIRST ACCEPT THE TERMS OF THIS AGREEMENT. BY USING THE PROGRAM YOU AGREE TO THESE TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, EXIT INSTALLATION NOW. ERASE, DESTROY, OR RETURN THE SOFTWARE TO EVERGREEN.

1. LICENSE GRANT AND LIMITATION.

a.) LICENSE. Subject to the terms and conditions of this Agreement, Evergreen grants Licensee a perpetual (except in the event of termination under section 13(b)), nontransferable, nonassignable, nonexclusive license to use one copy of Ecential(TM) Software ("Software") and user documentation. The Software licenses covered by this agreement are listed in Exhibit 1 hereto.

b.) MODULAR BASED. Licensee understands and agrees that the Software is modular based to facilitate distributive computing.

c.) LIMITATIONS. Evergreen and/or its suppliers reserve all rights not expressly granted herein. Without limiting the generality of the preceding sentence, Licensee receives no rights and agrees:

1.) not to modify, port, translate, localize, add features or functionality, or create derivative works of the Software,

2.) not to decompile, deencrypt, disassemble or otherwise reverse engineer the Software, algorithms, logic or program code of the Software or any derivative work thereof, or attempt to do any of the same. Licensee does not and shall not receive any rights by implication or otherwise in the Software or any component thereof.

3.) WEB SITE DISPLAY. Licensee shall, throughout its use of the Software, display the following or something similar on its home page and product pages:

"Ecential(TM) by Evergreen Internet, Inc., Setting the Standard for Open Commerce."

or, a "powered by ECentialTM button represented with an Evergreen/ECential graphic provided by Evergreen.

2. DELIVERABLES. Evergreen or its distributor shall provide Licensee one executable copy of the object code version of the Software and one copy of the Software's user documentation. Licensee shall not copy the Software (except for one archival copy for back up purposes only) or the user documentation, subject to the conditions referred to in the license grant herein.

3. TITLE. The Software is licensed, not sold. Title to the Software remains with Evergreen. Title to any third party software used by the Software remains with the third party.

4. THIRD PARTY SOFTWARE. Licensee understands and agrees that the Software utilizes software components from third parties as described in Exhibit 2 and said third party software is licensed to Licensee pursuant to the terms of the license agreement(s) as stated in Exhibit 2. Licensee hereby agrees to abide by the terms of the third party license agreement(s) included in Exhibit 2 which accompany this Agreement. Evergreen makes no warranties regarding third party software.

5. INSTALLATION. Licensee shall be responsible for installation of the Software.

6. CONFIDENTIALITY. Licensee agrees that neither Licensee, its agents nor its employees shall in any manner use, disclose or otherwise communicate any information with respect to the Software which might enable use or copying of all or any portion of the Software. Licensee agrees to take all necessary action to protect the confidential and proprietary information included in the Software, including appropriate instruction and agreement with its employees.

7. SOFTWARE SUPPORT POLICY. This license does not guarantee software support from Evergreen. Any software support is provided by separate agreement with the distributor of this software.

8. WARRANTIES.

a.) Evergreen warrants that it has clear title to the Software. Evergreen warrants to Licensee that it has all necessary rights, power and authority to enter into this Agreement and to grant the rights granted under this Agreement.

b.) Licensee warrants that it has all necessary rights, power and authority to enter into this Agreement and to grant the rights granted under this Agreement.

c.) Evergreen warrants that the Software as delivered to Licensee is not contaminated by harmful computer programming code.

d.) Company warrants that the software accurately processes date/time data (including but not limited to, calculating, comparing and sequencing) from, into, and between the twentieth and twenty-first centuries, and the years 1999 and 2000 and leap year calculations, to the extent that other information technology properly exchanges date/time data with it.

e.) For 90 days from the date software is installed, Evergreen warrants that the Software will perform substantially in accordance with the accompanying documentation, and the Software media will be free from defects in materials and workmanship. In the event of a breach of this warranty, Evergreen shall (a) refund to Licensee the price paid for the Software, or (b) repair or replace the Software that does not meet this Limited Warranty.

f.) EXCEPT AS OTHERWISE PROVIDED HEREIN, THE SOFTWARE AND THE ACCOMPANYING WRITTEN MATERIALS ARE PROVIDED "AS IS" WITHOUT EXPRESS OR IMPLIED WARRANTY OF ANY KIND. EVERGREEN FURTHER DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EVERGREEN DOES NOT WARRANT THAT THE SOFTWARE WILL BE ERROR FREE OR WILL OPERATE WITHOUT INTERRUPTION OR THAT THE SOFTWARE DOES NOT INFRINGE ANY COPYRIGHT, PATENT, ETC. OF ANY THIRD PARTY. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE AND ACCOMPANYING WRITTEN MATERIALS REMAINS WITH LICENSEE.

The Software is not designed or licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, and life support or weapons systems. Without limiting the generality of the foregoing, Evergreen specifically disclaims any express or implied warranty of fitness for such purposes.

9. INDEMNITY. Both parties shall indemnify, defend and hold the other party harmless from and against any and all losses, damages, liabilities, costs, charges and expenses, including reasonable attorneys' fees, arising out of any breach by either party of their obligations under this agreement or from any infringement or claim of infringement of any patent, copyright, trade secret, trademark or other proprietary right based on or arising out of the creation, use or installation by Licensee of the Software. Regarding the part of said indemnity running from Evergreen in favor of Licensee, Evergreen shall indemnify and hold harmless Licensee for any liability for infringement of any United States patent, copyright or trade secret rights of and due to a third party caused solely by the use of the Software in accordance with the Software's documentation, provided that: (i) the infringement is not caused by the combination of the Software with any other item not provided by the Evergreen, including but not limited to software, data, or hardware, (ii) Licensee notifies Evergreen in writing within ten (10) days of Licensee's first knowledge of a charge of infringement of patent, copyright or trade secret rights by another party, and (iii) Licensee agrees to allow Evergreen to fully control any litigation and settlement of such infringement charges provided any such settlement does not require the Licensee to make any payment.

10. NO CONSEQUENTIAL DAMAGES. Evergreen shall not be liable to Licensee for indirect, special, incidental, exemplary, punitive, or consequential damages (including, without limitation, lost profits) related to this Agreement or resulting from Licensee's use or inability to use the Software, arising from any cause of action whatsoever, including without limitation, contract, warranty, strict liability, or negligence, even if notified of the possibility of such damages.

11. LIMITATION ON RECOVERY. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL EVERGREEN BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS LICENSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall either Evergreen's total liability to you for all damages exceed the amount paid for this License for the Software.

12. PROPRIETARY RIGHTS. Except as expressly provided for in Section 1 of this Agreement, Evergreen and/or its suppliers retain any and all right, title and interest in and to the Software. This Agreement grants no additional express or implied license, right or interest in any copyright, patent, trade secret, trademark, invention or other intellectual property right of Evergreen Internet, Inc. or its suppliers. Licensee receives no rights to and will not distribute, sublicense, sell, assign, lease market, transfer, encumber or suffer to exist any lien or security interest on the Software, nor will Licensee take any action that would cause the Software to be placed in the public domain. Licensee will not remove, or allow to be removed, any Evergreen copyright, trade secret or other proprietary rights notice from the Software. Licensee will not make any warranties with respect to the Software beyond those made to Licensee by Evergreen under this Agreement. Evergreen and its suppliers reserve all rights not specifically granted under this License.

13. GENERAL PROVISIONS.

a. ASSIGNMENT. Licensee shall not assign or otherwise transfer the Software or this Agreement to anyone, including any parent, subsidiaries, affiliated entities or third parties, or as a part of the sale of any portion of its business, or pursuant to any merger, consolidation or reorganization, without Evergreen's prior written consent. Third parties, such as consultants, subcontractors, or agents of licensee who have been contracted by the licensee to implement the Software on Licensee's behalf at licensee's facility, or in a hosting facility, and who have agreed in writing to use the Software only in accordance with the terms and conditions of this license, do not violate this Section 13(a).

b. TERMINATION. Without prejudice to other rights, Evergreen may terminate this License if Licensee fails to comply with the terms and conditions of the License, provided that prior to any termination Evergreen shall have provided written notice to Licensee specifying the nature of such failure to comply and Licensee shall have failed to remedy such failure within 30 days of receipt of such notice. In such event, Licensee must destroy all copies of the Software and all of its component parts and shall certify in writing to Evergreen that such destruction has occurred.

c. NOTICES. Any notice required or permitted to be sent to a party under this Agreement will be in writing, effective on receipt by that party, and will be sent by overnight carrier, fax, first-class mail or personal delivery to the Address for Notice given for that party below. Either party may change its notice address by giving written notice to the other party at the other party's notice address.

d. EXPORT. Licensee may not export or re-export the Software to a national of a country in Country Groups E:1 or E:2 without a license or a license exception from the U.S. Department of Commerce nor otherwise violate any provision of U.S. export laws.

IMPORTANT NOTICE: THIS SOFTWARE OR ANY UNDERLYING INFORMATION OR ANY UNDERLYING TECHNOLOGY MAY NOT BE DOWNLOADED, DISTRIBUTED OR OTHERWISE EXPORTED OR RE-EXPORTED OUTSIDE THE UNITED STATES (OR CANADA) OR TO ANY FOREIGN ENTITY OR "FOREIGN PERSON" AS DEFINED BY U.S. GOVERNMENT REGULATIONS. INCLUDING WITHOUT LIMITATION ANYONE WHO IS NOT A CITIZEN, NATIONAL, OR LAWFUL PERMANENT RESIDENT OF THE UNITED STATES (OR CANADA) OR TO ANYONE ON THE U.S. TREASURY DEPARTMENT'S LIST OF SPECIALLY DESIGNATED NATIONALS OR ON THE U.S. COMMERCE DEPARTMENT'S TABLE OF DENIAL ORDERS OR ENTITY LIST, OR INTO (OR TO A NATIONAL OR RESIDENT OF) CUBA, IRAQ, LIBYA, NORTH KOREA, IRAN OR ANY OTHER COUNTRY TO WHICH THE U.S. EMBARGOES GOODS. BY DOWNLOADING OR USING THIS SOFTWARE, YOU AND YOUR COMPANY ARE AGREEING TO ABIDE BY THE FOREGOING AND ARE WARRANTING THAT YOU AND YOUR COMPANY ARE NOT A FOREIGN PERSON OR FOREIGN ENTITY (OTHER THAN A CANADIAN PERSON OR CANADIAN ENTITY) OR UNDER THE CONTROL OF A FOREIGN PERSON OR FOREIGN ENTITY (OTHER THAN A CANADIAN PERSON OR CANADIAN ENTITY).

e. ARBITRATION. Evergreen and the Licensee shall settle any controversy arising out of this Agreement by arbitration in the State of Arizona in accordance with the rules of the American Arbitration Association. A single arbitrator shall be agreed upon by Evergreen and the Licensee or, if Evergreen and the Licensee cannot agree upon an arbitrator within thirty (30) days, then Evergreen and the Licensee agree that a single arbitrator shall be appointed by the American Arbitration Association. The arbitrator may award attorneys' fees and costs as part of the award. The award of the arbitrator shall be binding and may be entered as a judgment in any court of competent jurisdiction. The arbitrator shall not have the power to award non-monetary, injunctive or equitable relief of any sort, which may be sought in court as provided in section 13(l), in addition to any other legal remedies that may be available hereunder.

f. COMPLETE AGREEMENT. Evergreen and the Licensee agree that this Agreement is the complete and exclusive statement of the agreement between Evergreen and the Licensee, which supersedes and merges all prior proposals, understandings and all other agreements, oral or written, between the Evergreen and the Licensee relating to this Agreement.

g. AMENDMENT. This Agreement may not be modified, altered or amended except by written instrument duly executed by both Evergreen and the Licensee.

h. WAIVER. The waiver or failure of either Evergreen or the Licensee to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement. Any waiver must be in writing, signed by the party waiving its rights.

i. SEVERABILITY. If any provision of this Agreement is invalid, illegal or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted. The remainder of the Agreement shall be valid and enforceable to the maximum extent possible.

j. RECORDS INSPECTION. Upon three business days written notice, Licensee shall allow Evergreen and/or its agents to inspect and audit all of Licensee's records, in any media, relating to the Software and this Agreement, at the Licensee's regular place of business and at such reasonable times as shall not disrupt Licensee's business operations, to confirm Licensee's compliance with its obligations hereunder. If such inspection and/or audit discloses that Licensee has not complied with its obligations, Licensee shall bear the full cost of the inspection and audit, in addition to any other rights Evergreen may have hereunder.

k. GOVERNING LAW. This agreement and performance hereunder shall be governed by the laws of the State of Arizona without regard to conflict of law principles. Any Dispute shall be resolved in Maricopa County, Arizona, and Licensee submits to the personal jurisdiction in Arizona of the arbitrator and/or the Arizona court, as appropriate under the Agreement.

IN WITNESS WHEREOF, by virtue of accepting the Software by electronic means, downloading, installing the Software, or by using the Software in any way, the parties hereto have caused this Ecential(TM) License to be executed and consider this AGREEMENT to be effective as of the day and year the software was acquired.