THIS LICENSE AGREEMENT IS A LEGAL AGREEMENT between you the end user and the company for whom you work (collectively, the "Licensee"), and TREEHOUSE INTERACTIVE, INC., a California corporation (the Licensor"), having an office at 1111 East Draper Parkway, Suite 350, Draper, UT 8402. As used in this Agreement, "Software" means, collectively, the MARKETING VIEW-Marketing Automation software, SALES VIEW-Sales Force Automation Software, and/or RESELLER VIEW-Reseller Program Automation Software and systems, together with any and all enhancements, upgrades, and updates thereto that may be provided to Licensee in the future by Licensor. If Licensee has a separate license agreement for the use of the Software, if and to the extent of any conflict between that agreement and this Agreement, the terms of the separate written agreement shall prevail.

USE OF THE SOFTWARE YOU HAVE JUST LOGGED INTO INDICATES YOUR ACCEPTANCE OF AND AGREEMENT TO THESE TERMS, AND INDICATES ACCEPTANCE OF THIS AGREEMENT AND TERMS BY THE COMPANY FOR WHICH YOU WORK. IF YOU OR YOUR COMPANY DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU SHOULD IMMEDIATELY DISCONTINUE USING THE SOFTWARE. LICENSOR STRONGLY URGES YOU TO CONSULT YOUR ATTORNEY TO UNDERSTAND WHETHER ANOTHER AGREEMENT EXISTS AND TO UNDERSTAND YOUR RIGHTS AND RESPONSIBILITIES WITH RESPECT TO THIS AGREEMENT BEFORE USING THIS SOFTWARE. IF NO OTHER AGREEMENT IS APPLICABLE, LICENSOR IS MAKING USE OF THE SOFTWARE AVAILABLE IN STRICT RELIANCE ON YOUR AND YOUR COMPANY'S AGREEMENT TO BE BOUND BY THIS AGREEMENT.

1. OWNERSHIP

In this Agreement, Licensor is licensing its web-based software application products "MARKETING VIEW", "SALES VIEW" AND "RESELLER VIEW" on a non-exclusive basis for use only on a web server hosted and controlled by Licensor. Licensor is at all times the owner of the Software and, except as licensed hereby and to third parties pursuant to non-exclusive license agreements, Licensor retains all rights to the Software. Rights retained by Licensor include without limitation Federal and International Copyrights.

Licensee will never receive a copy of the Software. Because some of the Software is in a decompiled, human-perceivable form, Licensor will NEVER release the software code for any of the Software to Licensee. The license granted herein is entirely contingent upon Licensor hosting the Software and NEVER releasing any copies of the Software, which means that Licensee will never host the Software itself and may never install the Software on any if its computers. Licensee, however, owns and has exclusive rights to all data entered into the database of the Software on behalf of Licensee. Licensor will automate a SQL backup of Licensee's data every five days.
If Licensee decides NOT to renew this License after the term of this Agreement, or if this Agreement is terminated for any reason, Licensee will NOT receive a copy of the Software. In such circumstances, so long as Licensee is not in default of its obligations under this Agreement and/or any other applicable agreement with Licensor, Licensee will receive a copy of all Licensee data that has been entered into the respective product’s databases in a standard machine readable format.

2. GRANT OF LICENSE; LICENSOR SERVICES

Licensor grants to Licensee, and by your use of the Software Licensee accepts, a limited, nonexclusive, non-transferable, non-assignable, revocable right to use the Software ("License"), pursuant and subject to the terms and conditions of this Agreement. Unless otherwise agreed by Licensor and Licensee in writing (including electronically), the term of the License shall be one month, subject to extension per mutual agreement.

During the term of the License, Licensor shall host the dedicated servers needed for Licensee's use of the Software; such servers will be located at a Tier 1 Class A data center. This Agreement includes all future bug fixes, error corrections, new releases, updates and program improvements to the Software during the term of the License. Any other services to be provided by Licensor, such as customizations or program modifications and additions, shall be pursuant to separate written agreement of the parties, but otherwise on the terms of this Agreement.

3. CONFIDENTIAL INFORMATION

Licensor shall not disclose any secret or confidential information of Licensee that Licensor has been or hereafter becomes privy to by hosting data that is the property of the Licensee. Licensee shall take all reasonable steps to protect the Software and related documentation from unauthorized copying or use. The Software source code represents and embodies the trade secrets of Licensor and/or its licensors. The Software source code, pricing, interfaces, data mappings, and embodied trade secrets are NOT licensed to Licensee, and Licensee shall take all reasonable measures to avoid any unauthorized disclosure of the same.

Licensee and Licensor each agrees (a) that it will not disclose to any third party or use any Confidential Information disclosed to it by the other except as expressly permitted in this Agreement, and (b) that it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than highest degree of care it uses to maintain the confidentiality of its own information of similar importance. For the purposes of this Agreement, “Confidential Information” means information about the disclosing party’s business or activities that is proprietary and confidential, which shall include all business, financial, technical and other information of a party (I) disclosed in writing and either (a) is marked or designated by such party as “confidential" or “proprietary” or (b) by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as confidential, or (II) which is disclosed orally and either (a) is identified as confidential at the time of disclosure or (b) within 5 days of such disclosure, is summarized in a written memorandum identifying the disclosure as confidential. In any event, all data supplied by Licensee to Licensor for import into the Software shall be Confidential Information. Confidential Information will not include information that (a) is in or enters the public domain without breach of this Agreement, (b) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation, (c) the receiving party knew prior to receiving such information from the disclosing party, or (d) the receiving party develops independently of any information originating from the disclosing party. Upon expiration or termination of this Agreement, each party will: (a) immediately cease all use of the other party’s Confidential Information; and (b) within ten calendar days after such expiration or termination, certify in writing to the other party that it has permanently erased from computer memory, destroyed or returned to other party the other party’s Confidential Information, as well as any copies thereof on any media or in any form.

4. INDEMNIFICATION FOR INFRINGEMENT CLAIM

Licensor warrants that it owns or has obtained all proprietary and intellectual property rights necessary to grant the License herein and shall indemnify and hold harmless Licensee from any and all claims, demands, and causes of action asserted by third parties alleging that Licensee’s use of the Software as contemplated herein violates such third party’s proprietary or intellectual property rights.

5. COMPLIANCE WITH APPLICABLE LAW

Licensee shall comply with all applicable laws, rules and regulations in its use of the Software (and any other software or hardware of Licensor), including without limitation the federal “CANSPAM ACT OF 2003”. Licensee agrees to indemnify Licensor and its owners, officers, employees, representatives, successors and assigns, and hold each of the foregoing harmless, from and against any and all claims, damages, charges, costs, expenses, causes of action, liabilities and other obligations resulting from Licensee's failure to so comply.

6. LICENSE FEES

The fee schedule for this License shall be as agreed by the parties in a separate written (paper or electronic) agreement, and billed in monthly or quarterly invoices, payable on or before the dates shown on the invoices. Payment is due on or before the first day of each month the License is in effect.

Any programming services requested by Licensee are subject to prior agreement of Licensor; fees for programming services will be billed at $150.00 per hour unless agreed otherwise by the parties. Hours will be tracked online in Licensor's Taskman application. On site training of Licensee's employees will be available for $1,500 per day plus reimbursable expenses, upon mutual agreement of Licensee and Licensor. Additional services shall be available by Licensor upon mutual agreement, for additional fees.

7. REIMBURSABLE EXPENSES

In addition to the fees for the License, Licensee shall reimburse Licensor for all expenses incurred by Licensor with the prior approval of Licensee in the performance of requested services, such as additions to the products, including but not limited to expenses of transportation, out-of-town travel including meals, rental cars and lodging, professional and programming services such as secondary employees and other experts, as well as outside services such as programmers. Records of reimbursable expenses including statements and receipts shall be provided to Licensee.

8. ARBITRATION

Any controversy or claim arising out of or relating to this Agreement or the use of the Software shall be settled by arbitration before a single arbitrator in Los Angeles, California in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The award rendered by the arbitrator shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. The provisions of California Code of Civil Procedure Sections 1282.6, 1283 and 1283.05 shall apply to the arbitration. If any arbitration is commenced between the parties to this Agreement, the substantially prevailing party shall be entitled to reimbursement of its costs and expenses, including without limitation attorney’s fees, as determined by the arbitrator.

9. DEFAULT; CURE; SUSPENSION; TERMINATION

In the event Licensee fails to make any payment when due hereunder, Licensor shall give Licensee written notice of such failure via certified mail. If such payment is not received by Licensor within five (5) days after such written notice is sent by Licensor, Licensor may immediately either (a) terminate the License and this Agreement without further notice, or (b) suspend the License and performance of services under this Agreement. In the event of a suspension, the License and this Agreement and any agreed upon services will be restored upon Licensor's receipt of payment in full hereunder plus a late fee of ten percent (10%) of the amount of the late payment.
Other than Licensee's payment default, in the event that either party believes the other has failed to substantially perform in accordance with the terms of the Agreement, the non-defaulting party shall submit written notice via certified mail to the defaulting party describing in detail the alleged deficiencies by the defaulting party. The defaulting party shall have 15 days from the date notice was sent to cure said deficiencies. If the deficiencies remain uncured after such 15 day period, the non-defaulting party may terminate this Agreement.

In the event of any suspension or termination, Licensor shall have no liability whatsoever to the Licensee for delay or damage caused the Licensee due to such suspension or termination. Any notices to be delivered to Licensor hereunder shall be sent to the address of Licensor set forth above. Any notices to be delivered to Licensee hereunder shall be sent to the address last known by Licensor for Licensee. Upon termination of the License and/or this Agreement, the terms, rights and obligations under this Agreement which by their nature should survive termination shall survive (such as, without limitation, Sections 3 through 8, 10, 11, 12 and 14).

10. GOVERNING LAW

This Agreement shall be governed by the laws of the State of California.

11. ASSIGNMENT AND TRANSFER

Licensee shall have no right whatsoever to transfer or assign this Agreement or the License. Licensor shall not assign this Agreement without the written consent of Licensee. Subject to the foregoing, this Agreement shall be binding on the heirs, executors, administrators successors and assigns of the respective parties.

12. PERSONNEL HIRING POLICY

Licensee acknowledges and agrees that Licensor has invested substantial time, money and other resources in building its professional staff. This staff constitutes a substantial company resource of Licensor. In recognition of this fact, in the event Licensee hires an employee of Licensor during the term of this Agreement or within one year after termination of this Agreement, Licensee agrees to and shall pay to Licensor a fee an amount equal to 30% of such new hire's first year salary, plus anticipated commissions and bonuses for the first year. This fee shall be payable immediately upon hire of the individual.

13. ENTIRE AGREEMENT

This Agreement represents the entire and integrated agreement between Licensee and Licensor, and supersedes all prior negotiations and/or representations. In the event that the effective dates of any other applicable agreement have lapsed without extension, renewal or replacement, this Agreement becomes the definitive agreement for Licensee's use of the Software. This Agreement may be amended or superseded only by written instrument signed by both the Licensee and the Licensor.

14. LIMITATIONS ON DAMAGES

In no event will Licensor or its directors, officers, employees or agents be liable to Licensee for any consequential, indirect, special, incidental or consequential damages (including damages for loss of business profits, business interruption, loss of business information, and the like) arising out of the use or inability to use the Software, or based on breach of contract, tort (including negligence), product liability or otherwise, even if Licensor or its representatives have been advised of the possibility of such damages and even if a remedy set forth herein is found to have failed of its essential purpose. Some states do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.

Except with respect to its obligations pursuant to Section 4 above, Licensor's liability to Licensee for actual damages from any cause whatsoever, and regardless of the form of the action (whether in contract, tort including negligence, product liability or otherwise), shall in no event exceed $100.

Licensor makes no representations or warranties, express or implied, including without limitation the fitness for a particular purpose, regarding the Software or any services provided by Licensor. Licensor does not warrant, guarantee or make any representations regarding the use or the results of the use of the Software in terms of its correctness, accuracy, reliability, currentness or otherwise. The entire risk as to the results and performance of the Software is assumed by Licensee.
Nothing contained in this Agreement shall create a contractual relationship with, or a cause of action in favor of, a third party against either the Licensee or Licensor.

IF YOU DO NOT AGREE TO ALL OF THE FOREGOING TERMS AND CONDITIONS, LOG OFF THIS SOFTWARE NOW. YOUR USE OF THE SOFTWARE CONSTITUTES YOUR AGREEMENT, FOR YOU AND YOUR COMPANY, TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.