4-TELL, INC.LICENSE AGREEMENT

BY SIGNING THIS DOCUMENT, YOU SUBMIT TO 4-TELL, INC.(“4-TELL” OR “WE”) AN OFFER TO OBTAIN THE RIGHT TO USE THE PROPRIETARY PRODUCTS OR SERVICES THAT WE MAKE AVAILABLE TO YOU (“PRODUCTS”) UNDER THE PROVISIONS OF THIS LICENSE AGREEMENT (THE “AGREEMENT”). 

BY ACCEPTING THESE TERMS, THE PERSON PERFORMING THIS PROCESS HEREBY AGREES THAT HE/SHE HAS THE REQUISITE AUTHORITY, POWER AND RIGHT TO FULLY BIND THEPERSON AND/OR ENTITIES (COLLECTIVELY, THE “LICENSEE” OR “YOU”) WISHING TO USE THE PRODUCTS.IF THE PERSON PERFORMING THIS ACCEPTANCEPROCESS DOES NOT HAVE THE AUTHORITY TO BIND THE LICENSEE OR IF THELICENSEE DOES NOT AGREE TO ANY OF THE TERMS BELOW, WE ARE UNWILLING TO PROVIDETHE PRODUCTS, AND THE PERSON PERFORMING THIS PROCESS SHOULD CLICK ON THE “I DO NOT AGREE”BUTTON BELOW TO DISCONTINUE THE REGISTRATION PROCESS.

1.LICENSE GRANT

1.1We hereby grant to you a limited, revocable, worldwide, non-exclusive, personal and non-transferable license toaccess anduse the Products (in object code format) to generate content or productrecommendationsfrom your Licensee Data (defined below) (“Recommendations Data”). You will either download the Products onto your computer servers or use our hosted service to make them available to your individual employees and contractors (each a “User”).Even if you install the Products on your systems, a portion of the functionality of the Products requires that the Product access our servers outside of your firewall.You can permit access to the Products by an unlimited number of Users but you are responsible for all use of the Products by your Users.

1.2As part of your purchasing process we will provide aclient alias(“Alias”).This Aliasis unique to your purchase and cannot be used by anyone other than you for purposes of activating your license to the Products.Each Aliascan be used solely for the benefit of one business or enterprise meaningthat you cannot use the Aliasto activate the Product for more than one business or enterprise.If you are an agency or a similar type of business that performs services for multiple customers, you must obtain a separate Aliasfor each of your customers that wish to access and use the Products.

1.3Our Products are proprietary to us and are protected by various intellectual property rights that we hold, including several patent applications.We require that neither you nor your Users engage in any of the following activities without our express written consent:

1.3.1use the Aliasfor any purpose other than as permitted under Sections1.1 and 1.2; 

1.3.2lend, rent, sell, distribute or grant sublicenses, leases or other rights in the Products to third parties, including but not limited to such use as an application service provider, service bureau, or rental source; however, we do permit you to use a third party such as your agency or contractor to download and manage the Products on your behalf and in this instance, theywill be considered your Users;

1.3.3reverse engineer, disassemble or decompile the Products, or otherwise make any attempt to derive the source code or architecture of the Productsor anyothertrade secrets (including algorithms) contained in the Products;

1.3.4modify the code, algorithms or scripts embedded in the Products; 


1.3.5use the Products to in any way create a competitive product or service; 

1.3.6remove or obscure any of our trademarks or proprietary notices on the Products; or

1.3.7distribute or make available to any person or entity other than your customers (whether as a reseller or otherwise) any of the Recommendations Data.

2.PROPRIETARY RIGHTS.We own and will continue to own the Products and all intellectual property rights in the Products, including all aspects ofthe Products and the documentation we make available with the Products.Allrights that we do not expressly grant to you under this Agreement are reserved by us. 

We will have the right to issue one press release announcing the relationship created by this Agreement; provided that you will have the right to approve the content of such press release, such approval not to be unreasonably withheld.

We will also have the right to use the names and trademarks of you and your corporate affiliates on our website and in our marketing collateral; provided that all use will inure to your benefit and we will at all times comply with any applicable trademark policies you provide to us in writing.

3.DATARIGHTS.“Licensee Data” is any data that you give to us or that we obtain pursuant to your use of the Product. It includes information about your products (such as sales data and catalog information), shopper information (shopper profiles, demographics, etc.) and other information that is generated through the use of our Product by your customers (such as sales data, “click stream” data, search data, catalog information and search terms). Subject to the followingtwo sentences, you will remain the owner of all of your Licensee Data and any Recommendations Data that we generate through your use of the Product. We do reserve the perpetual right to process your Licensee Data and Recommendations Data such that it doesnot identify a specific customer or store, and to aggregate such anonymized data into a database with our other licensees that we may then use for our own commercial purposes and to improve recommendations on your site. You may only use the Recommendations Data during the Term of this Agreement and only as expressly set forth in this Agreement.

4.PLATFORM.  You understand and acknowledge that your use of our Products depends on software and hardware that we are not responsible to provide to you, such as a sufficient connection to the Internet and a platform on which to host and operate your e-commerce store.  You are responsible for establishing and maintaining this software and hardware (either yourself or from another service provider), and if you fail to do so, you may not be able to fully enjoy your license under this Agreement.  

5.WARRANTIES, INDEMNITYAND DISCLAIMER.

5.1Each of us (“Representing Party”) represents and warrants to the other that on the date hereof it:(i) Representing Party has all necessarycorporate power and authority to enter into and deliver this Agreement and to perform its obligations hereunder; and (ii) all action on the part of Representing Party necessary for the authorization, entering into and delivery of this Agreement and the performance of all obligations of that party hereunder have been taken or will be taken prior to the signing of this Agreement.

5.2You are responsible for obtaining any consents that are necessary for you to provide us with Licensee Data, and grant us a licenseto use the Licensee Data for the purpose of this agreement. You agree to indemnify 4-Tell against any loss, damage, penalty, cost and expense (including attorney fees) that 4-Tell incurs as a result of your failure to obtain such consents.

5.3THE PRODUCTS AND RELATED SUPPORT AND MAINTENANCE ARE PROVIDED “ASIS”AND EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE,WE HEREBY DISCLAIM ALL WARRANTIES,IMPLIED OR EXPRESS,INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY,FITNESS,NON-INFRINGEMENT,TITLE AND ACCURACY.WE CANNOT GUARANTEE THAT THE PRODUCTS WILL OPERATEWITHOUT INTERRUPTIONOR BE ERROR-FREE.

6.DISCLAIMER AND LIMITATION ON LIABILITY

IN NO EVENT SHALL WE BE LIABLE TO YOU, ANY USER, ANY OF YOUR CUSTOMERS,OR ANY OTHER THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES TO BUSINESS REPUTATION, LOST BUSINESS OR LOST PROFITS), WHETHER FORESEEABLE OR NOT AND HOWEVER CAUSED, EVEN IF WE AREADVISED OF THE POSSIBILITY OF SUCH DAMAGES.IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU, ANY USER, ANY OF YOUR CUSTOMERSOR ANY THIRD PARTY EXCEED THE FEES YOU PAID TO US FOR THE PRODUCTS.

7.MAINTENANCE AND SUPPORT SERVICES 

7.1For as long as you have a valid and paid subscription to use the Products under this Agreement, we will deliver and make available to you all updates, bug fixes, error corrections and other minor modifications to the Products that we generally make available to our other licensees of the Product. Your website will function with any browser. The recommendations work properly for any browser version that has over 2% of world-wide Internet traffic. 

7.2Additionally, your paid subscription to the Product entitles youto support as described in Exhibit B.If you exceed these limits, we will still offer support to you at a rate of $200per hour. Support is available 8 AM to 5 PM Pacific Time. You can obtain this support via email or phone using the email address and phone number we provide.This support pertains to your use of the Product.We provide support in accordance our support terms incorporated herein.We will make the designation as to the severity of a particular support issue after consultation with you.

7.3We will not provide support for versions of Product that are older than the two point releases preceding the most recent release. Releases may include one or more fixes, and are designated by a progressing of the 2nd or 3rd digit of the version release number as applicable (e.g., v4.1 to v4.2).You should install all releases or Updates as soon as we make them available. 

7.4If we request, you will provide us reasonable assistance in providing support services.Our ability to provide satisfactory support services is dependent on us having the information necessary to replicate the reported problem with the Products.If you wish to report an error to us you will need to send a complete and accurate error report that includes (a) your name and on-site technical contact information; (b) version and maintenance release level of the Product; (c) platform and version on which the Product is running; (d) a reasonably detailed description of the error; (e) any error message(s) or other message(s) generated by the system in association with the error; (f) any applicable trace filesand/or error logs; and (g) the date and time that the error report is submitted by you.

7.5Our support services do not include support for:(a) third-party components not provided by us or problems associated with such components; (b) problems relating to known incompatibilities of the Products with third-party applications and hardware; (c) problems caused by the use of the Products other than in a recommended environment; or (d) Products that are two (2) or more point releases old.

8.TERM AND TERMINATION. The“Term” of this Agreement begins when you confirm your agreement to these terms and conditions and expires on the earlier of (a) your cessation of the use of the Product (provided that such cessation will not relieve you of any amounts to which you are otherwise contractually bound to pay), (b) your failure to pay amounts more than 30 days past due, (c) ten (10) days written notice by either of us to the other indicating an intent to terminate this Agreement. Upon any termination, you must immediately delete and destroy all instances of the Products that are in your possession or control. If you have a pre-paid annual contract, we will provide a pro-rata refund of half of the fees that correspond to the remaining unused Term.


9.PAYMENT AND DELIVERYYou agree to pay the respective undisputed feesfor your use of the Product as in Exhibit B. Fees are pre-paid for annual subscriptions. Feeslistedare good for one year from the Effective Date of this contract. Fees for additional support services must be paid within thirty (30) days of our issuance of an invoice. All fees exclude all applicable sales, use and other taxes, and you will be responsible for payment of all such taxes (other than taxes based on our income). Any amounts due under this Agreement which are not paid within thirty (30) days of their due date shall be subject to a late payment charge of 1-1/2% and shall thereafter bear interestat a rate of 18% per annum (or the applicable legal limit, if lower) until paid.

10.MISCELLANEOUS TERMS AND CONDITIONS. Our relationship to you is that of an independent contractor and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between us. The terms of this Agreement shall be binding on the parties, and all of our respective successors and assigns. We may assign this Agreement or any rights and obligations hereunder without your prior written approval if we merge, reincorporate, or are acquired (whether by way of operation of law or otherwise). You may not, however, assign your rights and obligations under this Agreement without our written approval. All modifications to this Agreement must be in writing.This Agreement shall be governed by the laws of the State of Oregon, without regard to Oregon conflict of laws rules, and be subject to the exclusive jurisdiction of the state or federal courts located in Multnomah County, Oregon. In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (i) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. Sections 2, 3, 4.2, 5, 7 and 9, shall survive the termination of this Agreement. This Agreement together with the Order Form constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications.