Terms and Conditions

1.1 Installed Software (Software Product(s)) End-User License

1.1.1 Software Product(s) Definition

Software Product(s) will mean software developed and owned by Metafile, as set forth in this Contract. Software Product(s) will not mean software developed by a third party. Copyright laws, Intellectual Property Laws and International Copyright treaties protect the Software Product(s). The Software Product(s) is licensed, not sold.

1.1.2 License

The Software Product(s) must be used only in the manner described in this Contract for the sole purpose of processing the work of Customer's own internal business. Metafile hereby grants Customer a nonexclusive license to use the Software Product(s), provided Customer complies with the restrictions set forth herein. Metafile reserves all rights not expressly granted to Customer. The rights granted are limited to the Software Product(s) and do not include any other patent or Intellectual Property Rights. Metafile retains ownership of the Software Product(s).

Restrictions on Software Product(s) Rights. Customer will not: (a) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Software Product(s); (b) use the Software Product(s) in the operation of a service bureau, timesharing or commercial hosting, subscription services or in any way derive money from the use of the Software Product(s); (c) reverse engineer, decompile or disassemble the Software Product(s); (d) utilize or run the Software Product(s) on more computers than the number of licenses or more users than the number of users that were purchased; (e) operate the Software Product(s) in a fashion that exceeds the capacity or capabilities that were purchased; (f) lease, rent, lend, or transfer the Software Product(s) in any manner, including use by affiliates, subsidiaries or wholly-owned subsidiaries of the Customer, without prior written consent of Metafile. Customer will only make one (1) copy of the Software Product(s), solely for safekeeping and reinstallation purposes; not for testing or production use.

1.1.3 Verifying Compliance

Metafile has the right to verify compliance with this Contract by an audit, at its expense. Metafile will notify Customer at least 30 days in advance of its intent to verify Customer's compliance with this Contract for Software Product(s). Any information collected in the self-audit will be used solely for purposes of determining compliance. This verification will take place during normal business hours and in a manner that does not interfere unreasonably with Customer's operations. Customer agrees to complete Metafile's self-audit process, which Metafile may require as an alternative to a third party audit. Metafile may engage an independent auditor, which will be subject to a confidentiality obligation. Customer must promptly provide the independent auditor with any information the auditor reasonably requests in furtherance of the verification, including access to systems running the Software Products and evidence of licenses for Software Products. If verification or self-audit reveals any unlicensed use of Software Product(s), then within 30 days (1) Customer must order sufficient licenses to cover its use, and (2) if unlicensed use is 10% more, Customer must reimburse Metafile for the costs Metafile incurred in verification and acquire the necessary additional licenses at 125% of the price, based on the then-current price list and Customer price level. The unlicensed use percentage is based on the total number of licenses purchased for current use compared to actual install base. If there is no unlicensed use, Metafile will not subject Customer to another verification for at least one year. By exercising the rights and procedures described above, Metafile does not waive its rights to enforce this Contract or to protect its intellectual property by any other legal means.

1.1.4 Protection of Proprietary Rights

Customer hereby specifically recognizes that the Software Product(s) is valuable, confidential information of Metafile. Metafile owns all title and copyrights in and to the Software Product(s), the accompanying printed materials, and any copies of the Software Product(s). Copyright laws and international treaty provisions protect the Software Product(s). Therefore, Customer must treat the Software Product(s) like any other copyrighted material. Customer agrees not to provide or otherwise make available any of such confidential information in any form to any person except pursuant to this Contract. Customer will take all reasonable steps to ensure that its employees preserve and protect the proprietary rights and confidential information of Metafile. Should Customer become aware of any unauthorized use of any of the Software Product(s) by a third party, Customer will immediately inform Metafile of such unauthorized use and will reasonably co-operate with Metafile in the prosecution of such lawful action as Metafile may deem fit to ensure cessation of such use.

1.1.5 Business Termination

At Metafile's option, all of Customer's rights under this Contract will terminate, and the Software Product(s) must be returned to Metafile if the ownership of Customer changes for any of the following reasons; voluntary or involuntary bankruptcy, receivership, custodianship, assignment for the benefit of creditors, seizure of assets, liquidation, dissolution or ceasing to do business. In the event Metafile ceases to do business, the successor to Metafile's assets will be bound by this Contract the same as Metafile, and Customer may continue to use the Software Product(s) under the terms and conditions of this Contract. If there is no successor to Metafile's assets, then the Software Product(s) will become the nonexclusive proprietary product of Customer subject to all of the restrictions in the Sections above.

1.2 Support

1.2.1 Terms and Termination

Support will remain in effect for the period and fees set forth above (the "Initial Term") unless earlier terminated as otherwise provided. Support will automatically renew for additional like terms (each, a "Renewal Term") unless Customer provides written notice of termination thirty (30) days prior to the end of the then current term.

Invoicing for Support will cover each successive period. Invoicing for non-covered expenses will be upon incurring the expense.

Metafile reserves the right, at the time of renewal, to change the applicable Support rate to the Metafile current Support rate. Either party may terminate Support if the other party materially breaches Support and such breach has not been cured within (10) days after written notice thereof. In the event that Support is terminated for any reason; Customer will not be entitled to any refund of fees paid in respect to the unexpired period of Support.

In the event that Customer fails to make payment to Metafile, Metafile may without prejudice to any other remedy, suspend Support and thereafter terminate Support.

1.2.2 Support Scope of Service

Telephone and Email Technical Support, Corrective Maintenance of all Software Product(s), and access to the Metafile Support Web site.

Services:

1.3.1 The Services

Metafile will provide Services to Customer within the time period specified in this Contract, and in accordance with the highest prevailing industry standards and practices for the performance of similar services. Metafile will designate a "Project Manager" who will be available, as necessary, for frequent communications with Customer regarding the applicable Services.

1.3.2 Subcontracting

Metafile may subcontract the performance of certain of Metafile's obligations hereunder to qualified third parties, provided that (a) Metafile notify Customer of the proposed subcontractor and identify the specific Services to be performed by the subcontractor, (b) the subcontractor's performance of, and obligations with respect to the performance of the Services is consistent with the terms and conditions of this Contract and (c) Metafile remains liable for the performance of the subcontractor.

1.3.3 Work Product and Intellectual Property

The term "Work Product" means any inventions, Software Product(s), documentation, designs, specifications, processes, works of authorship, ideas or modifications and enhancements to Software Product(s) or documentation that are made, conceived, developed or reduced to practice, alone or jointly with others, by Metafile personnel for Customer in the course of performing Services, whether or not any such items are eligible for patent, copyright, trade secret or other legal protection, provided that Work Product will not include Metafile Intellectual Property (as defined below). Work Product excludes any Confidential Information of Customer. All Work Product, including all patent, copyright, trade secret, ideas, and other intellectual property rights related thereto, will be the sole and exclusive property of Metafile.

1.3.4 Customer's Intellectual Property

Customer will at all times retain all rights, ownership, and interest in any copyright, trademark, or other intellectual property proprietary to Customer, including without limitation any software, methodologies, tools, specifications, techniques, documentation or data which is utilized by Metafile in the performance of Services and has been originated or developed by Customer or by third parties outside of the scope of the Services, or which has been purchased by or licensed to Customer together with any and all additions, enhancements, improvements or other modifications thereto whether or not made during the performance of the Services (collectively, "Customer's Intellectual Property"). Nothing contained in this Contract or otherwise will be construed to grant to Metafile any right, title, license or other interest in, to or under any of Customer's Intellectual Property (whether by estoppel, implication or otherwise).

1.3.5 Metafile's Intellectual Property

Metafile will at all times retain all rights, ownership, and interest in any copyright, trademark, or other intellectual property proprietary to Metafile including without limitation any software, methodologies, tools, specifications, techniques, documentation or data which is utilized by Metafile in the performance of Services and has been originated or developed by Metafile or by third Parties outside of the scope of the Services, or which has been purchased by or licensed to Customer, together with any and all additions, enhancements, improvements or other modifications thereto whether or not made during the performance of the Services (collectively, "Metafile Intellectual Property"). Nothing contained in this Contract or otherwise will be construed to grant to Customer any right, title, license or other interest in, to or under any of Metafile's Intellectual Property (whether by estoppel, implication or otherwise).

1.3.6 Qualifications of Metafile's Personnel

Metafile represents and warrants that Metafile has, and will engage, employees, subcontractors, and/or consultants ("Metafile Personnel") with the proper skill, training, and experience to provide the Services. Metafile will be solely responsible for paying Metafile Personnel and providing any employee benefits that they are owed. Before providing Services, all of Metafile Personnel must have agreed in writing to (a) confidentiality obligations consistent with the terms of this Contract, and (b) assign or otherwise effectively vest in Metafile any and all rights that such personnel might otherwise have in the results of their work.

1.3.7 Conflicts with Rights of Third Parties

Metafile represents and warrants that, to the best of Metafile's knowledge, the provision of Services under this Contract will not violate any patent, trade secret, or other proprietary or intellectual property right of any third party.

1.3.8 Absence of Debarment

Metafile represents and warrants that none of Metafile's, officers, Metafile Personnel or any other person used by Metafile to perform Services have been (a) debarred, convicted, or is subject to a pending debarment or conviction.

Additional Terms and Conditions.

1.4.1 Confidentiality

Customer will not permit use of or otherwise provide access to the Software Product(s) to any person or entity, other than Customer's employees, without Metafile's prior written consent. Customer will not disclose to others or permit any use not expressly contemplated by this Contract of any trade secrets of Metafile that are identified by written notice or otherwise embodied in the Software Product(s). Customer's obligations under this Paragraph will not apply to any materials or information that were or become part of the public domain, that are previously known to Customer from a source with the legal right to disclose such information, that are independently developed by Customer, or that are apparent from the normal operation of the Software Product(s).

1.4.2 Warranties

Customer expressly acknowledges and agrees that use of the Software Product(s) is at Customers sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with Customer. To the maximum extent permitted by applicable law, except as set forth in this Contract, the Software Product(s) is provided "as is" and "as available", with all faults and without warranty of any kind, and Metafile hereby disclaims all warranties and representations with respect to the Software Product(s), either express, implied or statutory, including, but not limited to, the implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, of accuracy, of quiet enjoyment, and non-infringement of third party rights. Metafile does not warrant against interference with Customer's enjoyment of the Software Product(s), that the functions contained in the Software Product(s) will meet Customer requirements, that the operation of the Software Product(s) will be uninterrupted or error-free, or that defects in the Software Product(s) will be corrected. No oral or written information or advice given by Metafile will create a warranty. Some jurisdictions do not allow the exclusion of implied warranties or limitations on applicable statutory rights of a consumer, so the above exclusion and limitations may not apply to Customer

1.4.3 Limitation of Liability

To the extent not prohibited by law, in no event will Metafile be liable for personal injury, or any incidental, special, indirect or consequential damages whatsoever, including, but not limited to, damages for loss of profits, loss of data, or business interruption, arising out of or related to Customers use or inability to use the Software Product(s), however caused, regardless of the theory of liability (contract, tort or otherwise) and even if Metafile has been advised of the possibility of such damages. Some jurisdictions do not allow the limitation of liability for personal injury, or of incidental or consequential damages, so this limitation may not apply to Customer. In no event will Metafile's total liability to Customer for all direct damages (other than as may be required by applicable law in cases involving personal injury) exceed an amount equal to the amount Customer paid for the Software Product(s). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose

1.4.4 Indemnification

Each party (the "Indemnifying Party") will indemnify, defend and forever hold the other (the "indemnified Party") and each of Indemnified Party's affiliates, and all of their respective present and former officers, members, shareholders, directors, employees, representatives of any of these (collectively "Indemnified Parties") harmless from and against any and all losses, liabilities, claims, costs, damages and expenses (including, without limitation, fines, forfeitures, attorneys' fees, disbursements and administrative or court costs) arising directly or indirectly out of any breach or alleged breach of Indemnifying Parties representations or warranties under this Contract, but not to the extent that any such claim or liability is based on the fault of the Indemnified Parties. The Indemnified Party will promptly provide the Indemnifying Party with written notice of any claim which it believes falls within the scope of this paragraph and will cooperate with Indemnifying Party in the investigation and defense of the same. The Indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that the Indemnifying Party will control such defense and all negotiations relative to the settlement of any such claim and that any settlement intended to bind the Indemnified Party will not be final without the Indemnified Party's written consent, which will not be unreasonably withheld.

1.4.5 Force Majeure

Neither party will be deemed in default or otherwise liable under this Contract due to its inability to perform its obligations, except for the obligation to pay amounts owed under this Contract, by reason of any fire, earthquake, flood, hurricane, tornado, substantial snowstorm, epidemic, accident explosions, casualty, riot, civil disturbance, act of public enemy, embargo, war, act of God, or any municipal, county, state or national ordinance or law, or any executive, administrative or judicial order (which is not the result of any act or omission which would constitute a default hereunder), or any failure or delay of any transportation, power, or communications system or any other or similar cause beyond that party's reasonable control.

1.4.6 Travel and Expenses

Metafile will invoice Customer for actual expenses as incurred.

1.4.7 Invoices

All invoices for Customer are to be emailed to a designated email address. Metafile will submit invoices showing the following information: description of item or service, each applicable tax, extended totals and any other pertinent information.

1.4.8 Payment Terms

Payment terms provided in the above Summary. Metafile's product(s) prices is in U.S. dollars and requires all Customers, including Metafile Partners, in countries outside of the United States, to pay Metafile in U.S. dollars and bear the dollar exchange-rate.

1.4.9 Independent Contractor

This Contract does not create any joint venture, agency, or employment relationship between the parties. Metafile and Customer are independent contractors with respect to one another under the terms of this Contract. Neither party will have the authority to legally bind the other party to any contract, Contract, or commitment or to incur any debt or create any liability on behalf of the other.

1.4.10 Taxes

Metafile will be solely responsible for paying all taxes on compensation received by Metafile hereunder and will not be eligible to participate in, or receive benefits under, any benefit or group plans, or programs of Customer. Metafile is responsible for providing and obtaining, at its own expense, all insurance and statutory benefits, including without limitation social security, unemployment, disability, worker's compensation, and all training and licenses for itself and its employees. Customer will be responsible for any applicable sales, use and excise taxes, but not for any taxes based on Metafile's property or net income, or for any employee payroll or withholding taxes.

1.4.11 Insurance

During the Term of this Contract and for a period of at least two (2) years thereafter, Metafile will maintain the following minimum insurance coverages with financially sound and nationally reputable insurers:

1.4.12 Waiver

No waiver of any term, provision or condition of this Contract in any one or more instances will be deemed to be or construed as a further or continuing waiver of any other term, provision or condition of this Contract. Any such waiver must be evidenced by an instrument in writing executed by an officer authorized to execute waivers.

1.4.13 Severability; Reformation

Any of the provisions of this Contract which are determined to be invalid or unenforceable in any jurisdiction will be ineffective to the extent of such invalidity or unenforceability in such jurisdiction, without rendering invalid or unenforceable the remaining provisions hereof and without affecting the validity or enforceability of any of the other terms of this Contract in such jurisdiction, or the terms of this Contract in any other jurisdiction. The parties will substitute for the invalid or unenforceable provision a valid and enforceable provision that conforms as nearly as possible to the original intent of the parties.

1.4.14 Headings

This Contract and its components contain headings only for convenience and such headings should not be used in the construction of this Contract.

1.4.15 General

A Current State Sales Tax Exempt Form is required for exempt sales.

1.4.16 Notices

Any notice, reports or communications required under this Contract or by law must be in writing and must be given by addressing the notice to the aforementioned addresses or to such other address as the recipient may specify in writing under this procedure. Notices to Metafile will be marked "Attention: Legal" or sent to legal@metafile.com. Notices to Customer will be to the recorded contact. A "business day" will mean any day other than Saturday, Sunday or a US public holiday.