Nearly There Network Technologies Frontkick Enterprise Software License Clickwrap Agreement Version 1.1, May 2006 THE FOLLOWING IS A LICENSE AGREEMENT ("AGREEMENT") RELATING TO THE VERSION OF THE FRONTKICK ENTERPRISE SOFTWARE YOU HAVE REQUESTED TO DOWNLOAD AND LICENSE ("SOFTWARE"). THIS IS A CONTRACT. PLEASE CAREFULLY READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE PROCEEDING. BY CLICKING "I AGREE" BELOW AND/OR DOWNLOADING THE SOFTWARE YOU ARE ACCEPTING SUCH TERMS AND CONDITIONS AND AGREEING TO BE BOUND BY SUCH TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, NEARLY THERE NETWORK TECHNOLOGIES ("WE", "US" OR "COMPANY") IS UNWILLING TO LICENSE THE SOFTWARE TO YOU. 1. License Grant. Subject to the terms and conditions of this Agreement and full payment of all license fees due hereunder, you are granted a: (i) non-exclusive, limited, license fee bearing, non-transferable, non-sublicensable license to use the Software or a derivative work on a single computer, which may be connected at any point in time to an unlimited number of computers operating on one or more networks. The license does not grant you the rights to distribute or resell any of the source-code of the Software. You can not bundle the Frontkick Enterprise Software, or any of its source with another package for users to download and install. (ii) non-exclusive, limited license to use or create a derivative work of the Software on a development computer for development purposes related to the site. (iii) a non-exclusive limited license to make one copy of the development version of the Software for archival or backup purposes only, provided that such copy includes all of the copyright and other proprietary notices. 2. Restrictions. (i) Except as otherwise expressly provided, you agree not to copy, reverse engineer, translate, sell, rent, lease, assign, sublicense, distribute, publish, or transfer the Software or derivative works or place the Software or derivative works on any network, file server or bulletin board system in such a way that it can be accessed or used by others (or permit any of the foregoing), or remove or obliterate any proprietary notices on the Software or disclose the Software or any information pertaining thereto any other party without our prior written consent. (ii) You agree not to deploy or distribute the Software for any purpose other than to accompany your specific application programs as contemplated above. You may not distribute a version of the Software on a stand alone basis or merely as a subset of the development version of the Software. (iii) You may not permit any third party to use the development version of the Software who is not an employee of yours except that, subject to compliance with the terms of this Agreement, you may permit a third party contractor to use the Software on your behalf provided that such contractor must be bound by a confidentiality agreement that is no less protective than the terms of this Agreement, such contractor must agree to be bound by the terms and conditions of this Agreement, and you shall remain responsible for all actions of such contractor with respect to such Software. (iv) You agree that we may identify you as a customer of the Company in our online and offline customer lists and marketing materials. (v) We reserve all rights not expressly granted to you. 3. Third Party Software. You understand and agree that portions of the Software include third-party software that may be subject to a separate license agreement which you will be given an opportunity to review before using such software. You understand and agree that such third-party software is subject to such separate license agreement (not this license), we have no responsibility or liability to you with respect to such third party software, and you agree to comply with and be bound by such separate license agreement. 4. Ownership. You acknowledge that the Software, including the related documentation and any new releases, modifications, and enhancements thereto, belong to us and our suppliers if any, including all intellectual property rights therein. We retain all rights, title, and interest in and to the Software. You further acknowledge that the Software and information relating thereto include some of our valuable trade secrets, and agree to treat the Software as our confidential and proprietary information. If this Software is, or in our opinion is likely to become the subject of a claim for intellectual property infringement, we may, at our option and as your sole remedy, either procure the right to continued use of the Software, replace or modify the software to make it noninfringing, or terminate this Agreement and refund to you a pro-rata portion of the license fees you have paid for the Software. 5. Warranty Disclaimer. We do not make any warranties regarding the Software or any services provided hereunder. Such Software and services are provided on an "AS IS" basis. WE HEREBY DISCLAIM ALL WARRANTIES OF ANY NATURE, EXPRESS, IMPLIED OR OTHERWISE, OR ARISING FROM TRADE OR CUSTOM, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, OR SYSTEM INTEGRATION. WE SPECIFICALLY DISCLAIM ANY WARRANTY THAT USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE RESULTS OF USE WILL MEET YOUR REQUIREMENTS. By electing to download the Software you assume any and all risks associated with downloading unencrypted software over an unsecure medium. 6.Support. In connection with the license granted hereunder and subject to your payment of all amounts due hereunder, we will use commercially reasonable efforts to (i) provide you with email support during our normal business hours (excluding holidays) for the first one (1) year of this Agreement and (ii) make available to you for download from our web site any minor release related bug fixes or patches that we make available for download free of charge to the version of the Software that you license. 7. Termination. We may terminate this Agreement at any time upon written notice to you in the event you breach any term or condition of this Agreement. You may terminate this Agreement at any time upon written notice to us. Upon termination of this Agreement for any reason, you shall cease to use the Software and at our direction either return or destroy all copies of the Software in your possession or control. 8. Indemnification. You agree to indemnify, defend, and hold us harmless from any claims, damages, losses, or expenses we may incur as a result of your use, sublicensing, maintenance or operation of the Software. 9. Limitation on Liability. WE SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, RESULTING FROM OR ARISING OUT OF THIS AGREEMENT OR YOUR USE OF THE SOFTWARE, WHETHER ARISING IN TORT, CONTRACT, STATUTE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL OUR MAXIMUM LIABILITY EXCEED PROVEN DIRECT DAMAGES EQUAL TO THE AMOUNT YOU HAVE PAID US FOR THE SOFTWARE. THESE LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF WHETHER ANY REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. 10. Export Control. By downloading or using the Software, you represent and warrant that you are not located in or under the control of a national or resident of any country which is subject to an applicable embargo or other trade restriction imposed by the United States or other government. You shall not import, export, or re-export the Software to or from any country in contravention of any applicable import or export laws or regulations of the United States or other government. 11. General. This Agreement represents the complete and exclusive statement of the agreements concerning this license between the parties and supersedes all prior agreements and representations between them. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability (i) of such provision under other circumstances or (ii) of the remaining provisions hereof under all circumstances. This Agreement and any disputes arising hereunder shall be governed by the laws of Oakland, California, United States of America, without regard to conflicts of laws principles. You hereby expressly consent to the jurisdiction and venue in Oakland, California over any disputes arising from or related in any manner to this Agreement. The parties hereby expressly exclude the application of the U.N. Convention on Contracts for the International Sale of Goods to the Agreement. This Agreement may not be assigned (by operation of law or otherwise) without our prior written consent, and only upon the full payment of any related fees of transfer by the parties transferring the license. 12. Contact. Should you have any questions concerning this Agreement, please contact us at sales@nearlythere.net. YOU ACKNOWLEDGE THAT THIS SOFTWARE IS PROTECTED BY U.S. AND INTERNATIONAL COPYRIGHT AND INTELLECTUAL PROPERTY LAWS AND THAT UNAUTHORIZED USE MAY SUBJECT YOU TO CIVIL AND CRIMINAL LIABILITY. YOU FURTHER ACKNOWLEDGE THAT YOU THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT. IF YOU ARE ACTING ON BEHALF OF YOUR EMPLOYER, YOU REPRESENT THAT YOU ARE AUTHORIZED TO ACCEPT THESE TERMS AND CONDITIONS ON ITS BEHALF (SUCH EMPLOYER BEING HEREINAFTER REFERRED TO AS YOU). BY PRESSING "I ACCEPT" BELOW AND/OR DOWNLOADING THE SOFTWARE, YOU CONSENT TO BE BOUND BY THESE TERMS AND CONDITIONS.