UCF Basic Package License Agreement

Last Modified: 18-March-2011

PLEASE READ THIS LICENSE AGREEMENT CAREFULLY. BY CHECKING THE ACCEPTANCE BOX AND BY YOUR ACCESS TO AND USE OF THE LICENSED PRODUCT (AS DEFINED BELOW) CONSTITUTES YOUR ACCEPTANCE OF AND AGREEMENT TO BE BOUND BY ALL THE PROVISIONS OF THIS AGREEMENT.  IF YOU ARE UNWILLING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, DO NOT ACCESS THE LICENSED PRODUCT.

This License Agreement (this “Agreement”) is entered into by and between Network Frontiers, LLC, (“Licensor”) and you (“Licensee”), and governs Licensee’s use of the Licensed Product made available to Licensee via the account Licensee has created (“Account”) on Licensor’s Website, www.unifiedcompliance.com, or any successor website thereto (the “Website”) or by any other means. Licensed Products are described on the attached Product Schedule and the Agreement applies to all orders placed by Licensee or its Affiliates pursuant to the product schedule (the “Product Schedule”) set forth in Exhibit A attached hereto and incorporated into this Agreement by this reference. Each of Licensee and Licensor is referred to herein as a “Party” and collectively as the “Parties”.

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1. Definitions

1.1.“Affiliates”  means, with respect to a Party, any person or entity that controls, is controlled by, or is under common control with such Party, where “control” means the direct or indirect ownership of one hundred percent (100%) of the outstanding voting securities or equity of such person or entity (but only as long as such person or entity meets these requirements).

1.2. “Documentation”  Any and all documentation accompanying or accessible through the Licensed Product  .

1.3. “Licensed Product” means any product licensed to Licensee hereunder pursuant to a Product Schedule, including but not limited to the control matrices, glossary, policies, standards and procedures, software, data structures, and mappings, in any format provided by Licensor, and any and all modifications, updates or enhancements thereto provided to Licensee hereunder.

1.4. “Licensed Use” for any Licensed Product shall have the meaning set forth the applicable Product Schedule.

1.5.“License Fees" for any Licensed Product shall mean the fees payable to Licensor in consideration of the License granted hereunder, as specified on the applicable Product Schedule.

1.6. “Term” shall mean the term of the license for any Licensed Product as specified on the applicable Product Schedule. At the end of each Term, Licensee shall have the option of renewing the Term for such Licensed Product for an additional one (1) year period in accordance with Licensor’s then-current fees, terms and conditions.

1.7. “Unified Compliance Framework” refers to Licensor’s proprietary work known as the Unified Compliance Framework, together with any and all modifications, updates or enhancements thereto and derivative works thereof, including products of Licensor with similar function regardless of any change in name or nomenclature.

2. License

2.1. Grant.  Subject to the terms and conditions of this Agreement and payment of the applicable License Fees, Licensor grants to Licensee a limited, non-exclusive, non-transferable, worldwide right and license (the “License”) to use the Licensed Product during the Term solely for the Licensed Use and in accordance with the Documentation. 

2.2. Restrictions.  Except as set forth in Section 2.1 or the applicable Product Schedule, Licensee shall have no right to (a) modify, adapt, alter, translate, or create derivative works of the Licensed Product; (b) merge the Licensed Product with other software or products; (c) sublicense, lease, rent, loan, resell, distribute or otherwise transfer or make available the Licensed Product (in whole, in part, or in any derivative form) to any third party, (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the underlying source code, data structures or mappings for the Licensed Product; or (e) otherwise distribute, copy, reproduce, publicly display or use the Licensed Product; provided, however, that Licensee may make a reasonable number of back-up copies of the Licensed Product for use solely in connection with the recovery from systems failures or business continuity events. The Licensed Product and the information contained therein is licensed solely for use within Licensee’s own organization and may not be otherwise used without the express prior written consent of the Licensor and as provided in this Agreement.

2.3. Ownership.  Licensor owns, and shall retain all right, title and interest in and to (a) the Licensed Product, (b) all reports, analyses, policies, compilations, data, studies and other materials which contain or otherwise reflect or are generated or derived from the Licensed Product (“Reports”), (c) the Unified Compliance Framework, (d) all copies, modifications and derivative works of any of the foregoing, and (e) all intellectual property rights therein; provided, however, that, subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee a royalty free, fully paid-up, nonexclusive, non-transferable license to continue to use any Reports to the extent embodied or incorporated into in any internal policies or procedures adopted by Licensee during the Term.

3. Payment

3.1. License Fees and Payment Terms.  Licensee shall pay Licensor the License Fee(s) in the amounts and in accordance with the payment terms specified on the applicable Product Schedule. All invoiced amounts due hereunder shall be paid within thirty (30) days from the date of Licensor’s invoice.

3.2. Taxes and Fees; Currency.  The License Fees exclude all applicable sales, use and other taxes, and all applicable export and import fees, customs duties and similar charges, and Licensee will be responsible for payment of all such taxes (other than taxes based on Licensor’s income), fees, duties and charges, and any related penalties and interest, arising from the payment of License Fees or the delivery or license of the Licensed Product to Licensee.  All payments made hereunder shall be in U.S. dollars.

4. Updates and Upgrades

4.1. Updates.  Licensee shall be entitled to all updates to the Licensed Product which Licensor makes commercially available during the applicable Term.  Licensor shall make such updates available to Licensee within a reasonable period of time after they become commercially available.  Except as set forth in this Section 4.1 or in an applicable Product Schedule, Licensor is not required to provide any maintenance or support services with respect to any Licensed Product under this Agreement

4.2. Licensed Product Upgrade.  In the event Licensee desires to upgrade the License granted hereunder to provide for additional features or Licensed Product packages, Licensee shall request such upgrade in writing, and upon Licensor’s acceptance of such request, the Parties may terminate the then current Product Schedule and enter into a new Product Schedule to accommodate Licensee’s request.

5. Term and Termination

5.1. Term. This Agreement shall become effective as of the Effective Date and remain in effect until no Product Schedule remains in effect, unless otherwise terminated in accordance with Section 5.2 below or as set forth in Sections 6.1 or 7.2.

5.2. Termination upon Mutual Agreement.  The Parties may terminate this Agreement upon mutual, written agreement.

5.3. Termination upon Material Breach.  Each Party may terminate this Agreement upon written notice to the other Party in the event of a material breach by such other Party of its obligations set forth in this Agreement if such breach is not cured within thirty (30) days after written notice of such breach.

5.4. Effect of Termination.  Upon termination or expiration of any Product Schedule for any reason, any amounts owed to Licensor under such Product Schedule before such termination or expiration will be immediately due and payable, all rights in any Licensed Products granted to Licensee under such Product Schedule will immediately cease to exist, and Licensee shall promptly discontinue all use of any applicable Licensed Product, erase all copies of such Licensed Product from Licensee’s computers, and certify in writing to Licensor that it has fully complied with these requirements.  A termination of this Agreement shall be deemed a termination of any outstanding Product Schedules hereunder. Regardless of the circumstances of termination of this Agreement or any Product Schedule, the provisions of Sections 2.3, 3, 5.4, 6.2, 6.3, 8, 9 and 10 shall survive such termination or expiration and shall continue in accordance with their terms.

6. Warranty

6.1. Performance. Licensor represents and warrants that the Licensed Product, when used as permitted under this Agreement, will conform in all material respects to the Documentation. The foregoing warranty shall not apply with respect to (a) any use of the Licensed Product not in accordance with this Agreement or for purposes not intended by Licensor, (b) any use of the Licensed Product in combination with other products, equipment, software or data not supplied by Licensor, (c) any use of any release of the Licensed Product other than the most current release made available to Licensee, or (d) any modification of the Licensed Product by any person other than Licensor or its authorized agents.  Licensor does not warrant that the Licensed Product or Licensee’s use thereof will be error-free or uninterrupted.  Licensor will, at its own expense and as its sole obligation and Licensee’s exclusive remedy for any breach of this warranty, use commercially reasonable efforts to correct any errors in the Licensed Product reported to Licensor by Licensee in writing. If Licensor determines that it is unable to correct the error, Licensee may terminate the applicable Product Schedule and Licensor will refund to Licensee a pro-rated portion of the License Fees actually paid and applicable to the period from the date such error was reported by Licensee to Licensor and the effective date of termination of the applicable Product Schedule.

6.2. Use of Products.  The Unified Compliance Framework and Licensed Product are intended for informational, educational and reference purposes only and do not constitute nor substitute for legal, accounting, regulatory or other professional advice. Licensee may not and shall not rely on the Unified Compliance Framework and Licensed Product for such advice.  Licensee is encouraged to seek the guidance of a licensed professional if such advice is required.  Licensor makes absolutely no claims, representations or warranties that the use of or reliance upon any Licensed Product will cause Licensee or any of its Affiliates to achieve compliance with any laws, regulations or authority documents and hereby disclaims any and all such representations or warranties.

6.3. Disclaimer of Warranties  EXCEPT AS SET FORTH IN SECTION 6.1, THE LICENSED PRODUCT IS LICENSED AND PROVIDED “AS IS,” WITHOUT WARRANTIES OF ANY KIND. LICENSOR HEREBY DISCLAIMS all other warranties not expressly PROVIDED in this agreement, whether express or implied, including but not limited to THE IMPLIED warranties of merchantability, TITLE, NON-INFRINGEMENT AND fitness for a particular purpose. Use of the Licensed product is at licensee’s own risk, and by so using the licensed PRODUCT, licensee releases licensor and all other contributors to the licensed product from any and all liability that may arise in connection with such use.

7. Indemnification; Infringement Remedy

7.1. Indemnification.  Licensor will defend at its own expense any action, claim or proceeding against Licensee brought by a third party (“Action”) to the extent that the Action is based upon a claim that the Licensed Product infringes any U.S. copyrights or patents or misappropriates any trade secrets recognized as such under the Uniform Trade Secret law, and Licensor will pay those costs and damages finally awarded against Licensee in any such Action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such Action.  The foregoing obligations are conditioned on (a) Licensee notifying Licensor promptly in writing of such Action (provided that the failure to provide prompt notice shall not relieve Licensor of its indemnity obligations hereunder except to the extent that the delay in providing notice prejudices the defense of such Action), (b) Licensee giving Licensor sole control of the defense thereof and any related settlement negotiations (provided that Licensee shall have the right to participate in the defense of such Action and that Licensor does not settle, or consent to any entry of judgment in, any Action without obtaining either (i) an unconditional release of Licensee (and its affiliates, directors, officers, employees or agents) from all liability with respect to such Action, or (ii) the prior written consent of Licensee), and (c) at Licensor’s request and expense, Licensee cooperating with and assisting Licensor in such defense or settlement

7.2. Remedy for Infringement.  If Licensee’s use of the Licensed Product is, or, in Licensor’s reasonable opinion, is likely to become, materially impaired as result of a third party infringement claim, Licensor may, at its option and expense, either (a) procure for Licensee the right to continue using the Licensed Product, (b) replace or modify the Licensed Product so that it becomes non-infringing and remains functionally equivalent, or (c) accept return of the Licensed Product and give Licensee a refund for the License Fees paid by Licensee less a pro-rated amount for the period of time Licensee has used the Licensed Product, in which case, the applicable Product Schedule shall automatically terminate.

7.3. Limitation of Remedies.  Notwithstanding the foregoing, Licensor will have no obligation under this Section 7or otherwise with respect to any infringement claim based upon (a) any use of the Licensed Product not in accordance with this Agreement or for purposes not intended by Licensor, (b) any use of the Licensed Product in combination with other products, equipment, software, or data not supplied by Licensor, (c) any use of any release of the Licensed Product other than the most current release made available to Licensee, or (d) any modification of the Licensed Product by any person other than Licensor or its authorized agents.  THIS SECTION 7 STATES LICENSOR’S ENTIRE LIABILITY AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS AND ACTIONS.

8. Limitation of Liability

EXCEPT WITH RESPECT TO ANY INDEMNIFICATION OBLIGATION OF LICENSOR PURSUANT TO SECTION 7 OR A BREACH BY EITHER PARTY OF ITS OBLIGATIONS OF CONFIDENTIALITY PURSUANT TO SECTION 9, NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  EXCEPT WITH RESPECT TO ANY INDEMNIFICATION OBLIGATION OF LICENSOR PURSUANT TO SECTION 7 OR A BREACH BY EITHER PARTY OF ITS OBLIGATIONS OF CONFIDENTIALITY PURSUANT TO SECTION 9, EACH PARTY’S MAXIMUM LIABILITY FOR ANY DAMAGES UNDER THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, WARRANTY, OR ANY OTHER LEGAL OR EQUITABLE GROUNDS, SHALL BE LIMITED TO THE LICENSE FEES PAID BY LICENSEE FOR THE APPLICABLE LICENSED PRODUCT HEREUNDER FOR THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.

9. Confidentiality

9.1. Confidential Information.  The Parties acknowledge that they may receive, as a result of this Agreement, Confidential Information belonging to the other Party.  For purposes of this Agreement, “Confidential Information” means any confidential or other proprietary information that is disclosed by either Party to the other Party under this Agreement, whether disclosed orally, visually or in writing, whether disclosed before or after the Effective Date, and whether or not marked or otherwise designated as confidential.  For the avoidance of doubt, (a) all data and information contained in the Licensed Product, (b) all content contained in and the underlying structure of the Unified Compliance Framework, (c) all Reports, and (d) the terms and conditions of this Agreement are deemed to be the Confidential Information of Licensor.

9.2. Non-Disclosure.  The receiving Party will not use or disclose the Confidential Information of the disclosing Party to any third party except in connection with and as contemplated by this Agreement.  The receiving Party will use at least the same degree of care to avoid the disclosure or unauthorized use of the Confidential Information as it employs with respect to its own confidential and proprietary information of similar type and value, but at all times will use at least commercially reasonable care.  The receiving Party will have no obligation of confidentiality with respect to any information that (a) is already known to the receiving Party at the time the information is received from the disclosing Party, as proven by prior documents or records of the receiving Party; (b) is or becomes publicly known through no wrongful act of the receiving Party; (c) is rightfully received by the receiving Party from a third party without restriction; or (d) is independently developed by the receiving party with no reference to or use of the Confidential Information of the disclosing Party.  The receiving Party may disclose the Confidential Information of the disclosing Party pursuant to any valid legal or regulatory requirement or order of a court, regulatory agency or other governmental authority having jurisdiction; provided that such disclosure will be as narrowly tailored as possible to comply with such legal or regulatory requirement or order.  Upon becoming aware of any such requirement to disclose Confidential Information, the receiving Party will so notify the disclosing Party of such requirement and of the information that it proposes to provide in compliance with such requirement, and, if at all possible, in sufficient time to allow the disclosing Party to limit or prevent such required disclosure.

10. General Provisions

10.1. Assignment.  Either Party may assign this Agreement or any rights provided under this Agreement to the surviving entity of a merger, acquisition or sale of all or substantially all of its assets. Any other assignment of this agreement by either Party shall require the prior written consent of the other Party. Any assignee or successor in interest of either Party shall be bound by the terms of this Agreement.  Any purported assignment of this Agreement in violation of this Agreement shall be null and void.

10.2. Compliance with Laws.  Licensee will comply with all applicable export and import control laws and regulations in its use of the Licensed Product, and in particular, Licensee will not export or re-export the Licensed Product without all required United States and foreign government licenses.

10.3. Entire Agreement  This Agreement together with any applicable Product Schedule(s) entered into hereunder set forth the entire understanding of the Parties with respect to the subject matter hereof and supersede all prior agreements, understandings and negotiations with respect to the subject matter hereof.  Any amendment to this Agreement must be in writing and signed by both Parties.  In the event of any conflict between the terms of this Agreement, purchase order, invoice, acknowledgement or other preprinted form used by either Party, the terms of this Agreement shall control.

10.4. No Waiver.  Failure by either Party to enforce its rights in any particular instance under this Agreement shall not be deemed a waiver of those rights.

10.5. Governing Law.  This Agreement shall be governed by, and construed in accordance with, the laws of the State of California and the United States, as applicable, without regard to principles of conflicts of law.  Each Party irrevocably agrees that any legal action, suit, or proceeding brought by it in any way arising out of this Agreement must be brought solely and exclusively in state or federal court located in San Francisco in the State of California.  Each Party irrevocably accepts and submits to the sole and exclusive jurisdiction of each of the aforesaid courts in personam, generally and unconditionally with respect to any action, suit, or proceeding brought by it or against it by the other Party.  The Parties further consent to the jurisdiction of any state court located within a district which encompasses assets of a Party against which a judgment has been rendered solely for the enforcement of such judgment or award against the assets of such Party.  In any action or proceeding to enforce rights under this Agreement, the prevailing Party shall be entitled to recover costs and attorneys’ fees.

10.6. Remedies.  Licensee acknowledges that the Licensed Product contains valuable trade secrets and proprietary information of Licensor, that any actual or threatened breach of  this Agreement with respect to any Licensed Product, including but not limited to any trade secrets contained in the Licensed Product or the Unified Compliance Framework, or any actual or threatened breach of Section 2.2, will constitute immediate, irreparable harm to Licensor for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.

10.7. Notices.  All notices, demands or other communications under this Agreement shall be deemed given if personally delivered or sent by registered mail, fax, or overnight courier to the address of the Party set forth at the top of this Agreement. 

10.8. Headings.  The headings and captions contained in this Agreement are for convenience only and are not to be used in the interpretation of this Agreement.

10.9. Severability.  Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement is found to violate a law, it will be severed from the rest of the Agreement and ignored and a new provision deemed added to this Agreement to accomplish to the extent possible, the intent of the Parties as evidenced by the provision so severed.

10.10. Basis Of Bargain.  EACH PARTY ACKNOWLEDGES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.

Licensee hereby agrees to the terms and conditions as set forth in this Agreement with respect to the Licensed Products as described on the Product Schedule.

Exhibit A

PRODUCT SCHEDULE

• Licensed Product

[Basic Package]Licensed Product consists of spreadsheets in Microsoft Excel format provided to Licensee hereunder that provide specific portions of the Unified Compliance Framework, including Controls and Authority Documents.

[Corporate Package]Licensed Product consists of (a) templates in Microsoft Word format provided to Licensee hereunder that reflect the Unified Compliance Framework content and structure and (b) spreadsheets in Microsoft Excel format provided to Licensee hereunder that provide specific portions of the Unified Compliance Framework, including Controls and Authority Documents.

• Licensed Use

[Basic Package] “Licensed Use” means the use of a single copy of each item included in the Licensed Product on a single-user computer (i.e., not accessed by multiple users over a network) within Licensee’s internal business operations for management of Licensee’s internal compliance needs, but not for or in connection with the provision of any form of services to any third party, including, but not limited to, consulting services or service bureau or shared services. In no event may all or any portion of the Licensed Product be provided to or made available to any third party.  Licensed Use shall not include, and Licensee is prohibited from, use of, copying, distributing, sublicensing or otherwise transferring all or any portion of the Licensed Product by or to Licensee’s Affiliates or to any third party.

[Corporate Package] “Licensed Use” means the use of the Licensed Product within Licensee’s internal business operations for management of Licensee’s and its Affiliates regulatory compliance needs, but not for or in connection with the provision of any form of services to any third party, including, but not limited to, consulting services or service bureau or shared services. In no event may all or any portion of the Licensed Product be provided to or made available to any third party.  Licensee may not sublicense this license to any third party other than to Affiliates, such use by Affiliates shall be consistent with the terms and conditions of this Agreement, and Licensee shall remain liable for all use of the Licensed Product by such Affiliates. Licensed Use shall not include, and Licensee is prohibited from, use of, copying, distributing, sublicensing or otherwise transferring all or any portion of the Licensed Product by or to any third party.

• License Fees and Payment Terms

[Basic Package]The license fee for an initial one (1) year term (the “Term”) shall one thousand dollars ($1,000). Payment may be made via Licensee’s online account on Licensor’s website, or, if payment is to be made off-line, upon receipt of Licensor’s invoice for such amount. The Term shall begin on earlier of the date payment is received or Licensor’s issuance of an invoice for the license fee.

[Corporate Package]The license fee for an initial one (1) year term (the “Term”) shall ten thousand dollars ($10,000). Payment may be made via Licensee’s online account on Licensor’s website, or, if payment is to be made off-line, upon receipt of Licensor’s invoice for such amount. The Term shall begin on earlier of the date payment is received or Licensor’s issuance of an invoice for the license fee.