End-User License Agreement (EULA) of On The Go!

This EULA agreement governs your acquisition and use of our On The Go! software (“Software”) directly from eCIFM Solutions, Inc. or indirectly through a eCIFM Solutions, Inc. authorized reseller or distributor (a “Reseller”).

Please read this EULA agreement carefully before completing the installation process and using the On The Go! software. It provides a license to use the On The Go! software and contains warranty information and liability disclaimers.

If you participate in our beta or a free trial of the On The Go! software, this EULA agreement will also govern that your use. By installing and/or using the On The Go! software, you are confirming your acceptance of the Software and agreeing to become bound by the terms of this EULA agreement.

If you are entering into this EULA agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions. If you do not have such authority or if you do not agree with the terms and conditions of this EULA agreement, do not install or use the Software, and you must not accept this EULA agreement.

This EULA agreement shall apply only to the Software supplied by eCIFM Solutions, Inc. herewith regardless of whether other software is referred to or described herein. The terms also apply to any eCIFM Solutions, Inc. updates, supplements, Internet-based services, and support services for the Software, unless other terms accompany those items on delivery. If so, those terms apply.

1. Scope

2. Definitions

b) Device License shall mean a type of license under which the Licensee is limited to the number of devices which may have the software installed or otherwise using the Product(s) at any one time. Each device which will access the Product(s) shall have a separate software install.

c) Concurrent License or Concurrent User License shall mean a type of license under which the Licensee is limited to the number of user provided under the Concurrent License logged into or otherwise using the Product(s) at any one time. Each user who will access the Product(s) under a Concurrent License will have a unique user ID. There may be many users with unique IDs for a Concurrent License, but only the total number of users licensed under the Concurrent License may be logged into or otherwise use the Product(s) at any one time.

d) Derivative Work shall mean a work that is based upon or incorporates the Product(s), in whole or in part, such as a revision, modification, translation, abridgement, condensation, expansion, compilation, or any other form in which the Product(s) may be recast, communicated, transformed, included, modified or adapted.

e) Documentation shall mean eCIFMs published Product user guides and Product installation guides delivered to Licensee with the Product(s).

f) Maintenance shall have the meaning given to it in Section 5 herein.

g) Marks shall mean eCIFMs federal or international trademark registrations, trademarks, trade dress, trade names, service marks, symbols, slogans, emblems, logos, designs, name, patent notices, copyright notices, other indicia of origin and other proprietary rights notices and markings.

h) Named User License shall mean a type of license under which specific user(s) will access the Product(s). The number of named users will be limited to the number of users set forth in the Named User License.

i) Product(s) shall mean the software programs and applications specifically identified in the applicable Schedule A (including updates thereto and New Releases provided to Licensee as Maintenance pursuant to Section 5 of this Agreement). The Product(s) include executable object code form and may include source code. As a result, the license granted under this Agreement shall apply to the Product(s) in executable object code form only, unless otherwise expressly set forth in a Schedule A.

3. General Grant:

b) In the event Licensee contracts with a third party for services directly related to the Product(s), consulting, or outsourcing which would include outsourcing the operation of the Product(s), such third party may have access to the Product(s) licensed herein provided (i) written notice is provided to eCIFM, (ii) such third party may not charge fees related to or profit from the Software, (iii) such third party is not a eCIFM competitor, and (iv) the third party agrees to comply with the licensing terms set forth herein. Licensee acknowledges and agrees that breaches by such third parties shall be deemed to be breaches by Licensee under this Agreement.

c) Licensee will be given one (1) copy of the Product(s) for one active, production installation. Licensee may not make any copies of the Product(s) except that Licensee, subject to any express limitations on the user limitations set forth in the applicable Schedule A, may make one (1) copy solely for archival. Notwithstanding such copies, Licensee acknowledges and agrees that Licensee will have only one active, production installation of the Product(s) at any one time.

d) eCIFM shall provide one electronic copy of the Documentation for each Product at no additional charge. The Documentation may, subject to the provisions of this Agreement, be used and reproduced by Licensee solely for its internal use within Licensees organization in connection with its permitted use of the Product(s). Under no circumstances may Licensee distribute outside of Licensees organization a copy of any Documentation or a portion thereof without prior written authorization from eCIFM. Licensee shall not remove, obliterate or alter any Marks that appear on or in Documentation or that are on any media supplied with the Documentation and shall not affix to the same any other notice or mark. Licensee shall have no right to copy, in whole or in part, any Documentation other than as expressly set forth in this Agreement. Licensee shall reproduce and include all Marks on any permitted copies or partial copies of Documentation it makes. Licensee shall have no right to sublicense, resell, lease, rent, distribute, or, except as otherwise set forth in Section 17 herein, transfer such Documentation. Licensee shall have no right to, and agrees not to, modify, alter, disassemble, create derivative works of, translate, extract ideas, algorithms or procedures from the whole or any part of the Documentation, create a patent based on the information contained in the Documentation, any portion thereof or any derivative works, or in any way allow any individual or entity to access the Documentation without a valid license from eCIFM for such access.

e) All rights not expressly granted in this Agreement are reserved by eCIFM.

4. Title

b) eCIFM owns all of the intellectual property rights (including without limitation patents, trade secrets, trademarks, service marks, trade names, copyrights and other rights in works of authorship (including rights in computer software), moral and artists rights, design rights, trade or business names, domain names, know-how, and database rights whether any of the foregoing are registered or unregistered and all rights or forms of protection of a similar nature in any country) in and to its software, the Product(s) and the Documentation (collectively, the Intellectual Property Rights). Licensee hereby acknowledges eCIFMs claim that the Product(s), excluding any third party products, have been developed, acquired and maintained by eCIFM on a confidential basis as eCIFMs valuable trade secrets. Licensee agrees to preserve the confidential nature of these trade secrets and Licensee will not permit the use or copying of the Product(s) or Documentation by, or disclose any information relating to the Product(s) or Documentation to, any third party, except as expressly set forth in this Agreement.

c) Licensee does not, and shall not, acquire any other right, title or interest in any Product(s), Documentation, Derivative Works, or any copyrights or other Intellectual Property Rights therein, which shall at all times remain the property of eCIFM, a eCIFM subsidiary or relevant third party.

d) Licensee agrees not to apply or otherwise seek any patent that is based upon, uses or incorporates any part of the Product(s) or assist others in doing the same.

e) The Marks are the exclusive property of eCIFM. Ownership of and all right, title and interest in and to any and all Marks are and shall remain vested solely in eCIFM. Nothing in this Agreement shall grant to Licensee any right, title or interest in or to any of the Marks.

f) Licensee agrees to safeguard all proprietary rights of eCIFM in and to the Product(s) and Documentation and agrees to notify eCIFM promptly of any legal notices, claims, or actions directly or indirectly relating to the Product(s). Licensee further agrees not to enter into or compromise any legal action or other proceeding relating to the Product(s) or Documentation without the prior written consent of eCIFM.

g) Licensee acknowledges that eCIFMs rights in and to the Product(s) and Documentation is unique and that financial remedies will be insufficient to compensate eCIFM for any infringement of such rights. eCIFM shall be entitled to seek injunctive and other equitable relief, without the requirement of posting a bond, to protect, maintain, defend, enforce, and preserve such rights, in addition to any other remedies that may be available.

5. Support And Maintenance

a) eCIFM has established a support and maintenance program (Maintenance). If and for so long as Licensee is enrolled in and paying for Maintenance, eCIFM shall:

• Supply code corrections to Licensee to correct Product(s) malfunctions in order to bring the Product(s) into conformity with the then-current published specifications as set out in the Documentation for the most current version of the Product(s), unless such malfunctions have been caused by Licensees modifications of the Product(s) or unless Licensees modifications prohibit or hamper such corrections;
• Provide Licensee with telephone and Internet-based support to answer operational questions and to report irregularities within the Product(s). Days and times for such service will depend upon the level of Maintenance contracted for by Licensee as set forth in the applicable Schedule A;
• Supply, so long as commercially practical, updated Product(s) as required to operate under new releases of the operating systems supported by the Product(s); and
• Supply all extensions, enhancements, and other changes that eCIFM deems to be logical improvements or extensions (New Releases) incorporated into the Product(s) that eCIFM elects to generally furnish without additional charge to all licensees enrolled in Maintenance for the particular Product(s). Licensee shall receive one (1) copy of each New Release, at no additional license charge. eCIFM shall provide, via telephone, reasonable assistance to help Licensee install and operate each New Release.

b) eCIFM shall have no support obligations under Maintenance with respect to (i) Product(s) that are modified by or on behalf of Licensee; (ii) malfunctions caused by the use or operation of a Product(s) with any hardware, software, or media not explicitly authorized by this Agreement, the applicable Schedule A, or the Documentation; (iii) versions of the Product(s) that are more than twelve (12) months older than the most recent generally available release of the Product(s); (iv) malfunctions resulting from incorrect use of the Product(s); (v) malfunctions caused by intentional misuse; (vi) malfunctions attributable to the equipment and programs used in conjunction with the Product(s) or to any other reason external to the Product(s); or (vii) if any previous patches or error corrections of the Product(s) have not been implemented by Licensee or the instructions of eCIFM have not been followed.

c) The charge for Maintenance shall be due and payable annually in advance and shall be subject to the requirements set forth in Section 7 herein. At the time of the initial purchase, the Maintenance charge shall be as set forth on the applicable Schedule A. Thereafter, and approximately sixty (60) days prior to the expiration of the then current annual maintenance period (or at such other times as eCIFM generally invoices maintenance for its customers), eCIFM shall invoice Licensee for the then current charge for the next year of Maintenance as set forth in the applicable Schedule A.

d) Licensee may cancel its enrollment in Maintenance by giving notice of such cancellation at least thirty (30) days prior to the anniversary date of Maintenance. Licensee may not cancel Maintenance on only a portion of the full number of licenses owned by Licensee for any given product line. For perpetual licenses to the Product(s), termination of Maintenance will not terminate Licensees rights to continue to use the Product(s) under the provisions of Section 3 herein. Licensee may re-enroll in Maintenance by complying with the terms of eCIFMs then current Maintenance Renewal Policy.

e) eCIFM reserves the right to discontinue Maintenance for a Product(s) if eCIFM generally discontinues such services to all licensees of the applicable Product(s), with twelve (12) months notice to Licensee.

f) eCIFMs obligation to provide Maintenance is dependent on the continued existence of the license to use the Product(s) and, if the license is terminated for any reason, eCIFMs obligations to provide Maintenance will automatically terminate without any compensation to Licensee.

6. Payment And Taxes

b) Late payments shall bear interest on the sum due, from the date due, at the rate of one and one-half percent (1 ½%) per month or the highest rate permitted by law, whichever is less.

c) The rights granted under this Agreement are conditioned upon payment of the applicable fees as set forth in Subsection (a) above. Without prejudice to eCIFMs other rights, if Licensee is delinquent in paying the relevant fee and continues to be delinquent for a period of thirty (30) days after written notification of such delinquency, eCIFM shall be entitled, in its sole discretion, to terminate the license rights granted herein for the applicable Product(s) as provided in Section 9 herein. Furthermore, if Licensee is delinquent in paying any relevant Maintenance fees, eCIFM shall be entitled, in its sole discretion, to suspend the provision of any Maintenance under this Agreement until such time as payment is made. With the notice that Maintenance are being suspended, eCIFM may request payment within thirty (30) days. If payment is not made within the thirty (30) day notice period, eCIFM may terminate Maintenance, in its sole discretion, as well as avail itself of its rights under Section 9 herein, and any other legal remedies. eCIFM shall have no liability to Licensee or its Affiliates for the suspension or termination of any license or the Maintenance in accordance with this Section 8(c).

d) All charges referred to in this Agreement are exclusive of taxes. Taxes imposed by government agencies, with the exception of franchise taxes and taxes based upon the net income of eCIFM, whether based upon the Product(s), Licensee’s use, Maintenance or this Agreement (including sales and use taxes), are the additional obligation of Licensee. Should Licensee claim a tax-exempt status, Licensee must provide a copy of the exemption to eCIFM upon the execution of this Agreement.

e) Licensee will reimburse eCIFM for any and all expenses eCIFM may incur, including reasonable attorneys’ fees, in collecting any amounts past due under this Agreement.

7. Audits

8. Term And Termination

9. Confidential Information

b) The disclosing partys Confidential Information will remain the property of the disclosing party and the receiving party will not be deemed by virtue of this Agreement or any access to the disclosing partys Confidential Information to have acquired any right, title or interest in or to any such Confidential Information. The receiving party shall, and shall cause its employees, contractors and other agents to, strictly maintain the confidentiality of the disclosing partys Confidential Information and not disclose, disseminate or otherwise give such Confidential Information to any other person, firm, organization or third party, except for an employee, contractor or agent of the receiving party who has a reasonable need to obtain access thereto in connection with the performance of the receiving partys obligations under this Agreement. Without limiting the generality of the foregoing, the receiving party shall take appropriate action with each of its employees, contractors and other agents having access to the Confidential Information sufficient to enable the receiving party to comply with the terms of this Agreement. The receiving party agrees not to copy, disclose or use, at any time, any of the disclosing partys Confidential Information, except as expressly permitted under this Agreement. The receiving party acknowledges that unauthorized copying, disclosure or use of the disclosing partys Confidential Information will cause irreparable injury to the disclosing party and that the disclosing party shall be entitled, among other actions, to injunctive relief to prevent such activities, without the requirement of posting a bond, in addition to any other remedies that may be available to the disclosing party. Confidential Information disclosed to the receiving party by any Affiliate and/or agent of the disclosing party is covered by this Agreement.

c) The foregoing obligations set forth in paragraphs (a) and (b) of this Section shall not apply to any information that (i) is or becomes available to members of the public other than by breach of this Agreement or other duty by the receiving party; (ii) the receiving party can demonstrate by its files or written records is in the rightful possession of the receiving party without an obligation of confidentiality; (iii) is required to be disclosed by operation of law; provided, however, that prior to any such disclosure under this Subsection (iii), the receiving party shall provide the disclosing party with prompt notice of such disclosure and shall reasonably cooperate with the disclosing party so that the disclosing party may seek, at its expense, an appropriate protective order or waiver of compliance with the terms of the applicable law requiring disclosure; or (iv) the receiving party can demonstrate by its files or written records is independently developed by an employee of the receiving party who neither used nor had access to Confidential Information of the disclosing party.

10. Limited Warranty

f) THE WARRANTY SET FORTH IN THIS SECTION 11 IS THE SOLE AND EXCLUSIVE WARRANTY PROVIDED BY eCIFM UNDER OR IN CONNECTION WITH THIS AGREEMENT AND IS IN LIEU OF ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. EXCEPT AS EXPRESSLY PROVIDED HEREIN, eCIFM MAKES NO OTHER WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, ORAL OR WRITTEN, REGARDING THIS AGREEMENT, THE PRODUCT(S), THE SERVICES OR OTHERWISE, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW eCIFM SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND WHATSOVER INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES (i) OF MERCHANTABILITY, (ii) OF FITNESS FOR A PARTICULAR PURPOSE, (iii) OF NON-INFRINGEMENT, (iv) OF TITLE, OR (v) ARISING FROM USAGE OF TRADE OR COURSE OF DEALING OR PERFORMANCE.

11. Limitation Of Liability

12. Indemnification For Infringement

b) In the event that an injunction or order is issued by a court of competent jurisdiction against Licensees use of any Product(s) resulting from an Infringement Claim to which eCIFMs indemnification obligations apply, or if in eCIFMs opinion any Product(s) is likely to become the subject of a claim of infringement of a copyright, trade secret, or other proprietary right of a third party, eCIFM shall have the right in its sole discretion and expense to pursue any of the following: (i) to procure for Licensees benefit the right to continue using the Product(s); or (ii) to replace or modify the Product(s) so that it becomes non-infringing unless any such modification or replacement would adversely affect the specifications for the Product(s) or its use by Licensee. If eCIFM determines in its sole discretion that either option (i) or (ii) is not commercially practical, eCIFM may terminate the license for the affected Product(s) by written notice to Licensee and refund a portion of the license fees paid for the affected Product(s). The refund will be the portion of the license fee paid remaining on a sixty (60) month, straight line amortization from the day the Product(s) was first licensed to Licensee. This Subsection states Licensees exclusive remedy and eCIFMs entire liability for infringement indemnity.
c) eCIFMs obligations of indemnification set forth above are (1) conditioned on: (i) Licensee having provided prompt written notice of the Infringement Claim to eCIFM sufficient for eCIFM to file a timely response; (ii) Licensee acknowledging in writing that eCIFM has the sole right to conduct and control the defense and settlement of any such Infringement Claim at its discretion; (iii) Licensee providing assistance, at eCIFMs expense, in connection with such Infringement Claim as reasonably requested by eCIFM; (iv) Licensee making no admissions in respect of such Infringement Claim without eCIFMs prior written consent; and (v) Licensees compliance with all reasonable instructions relating to the Infringement Claim given by eCIFM; and (2) only applicable to third party Infringement Claims brought in the country designated in the Ship To address on the applicable Schedule A.
d) Conversely, if a claim is brought by a third party alleging that the manner of Licensees use of the Product(s) violates the business process intellectual property of the third party, Licensee will indemnify eCIFM on the same basis as set forth in this Section.

13. Third Party Products And Services

b) All third party software products supplied to Licensee under a Schedule A hereto are licensed to Licensee under the terms (including but not limited to the restrictions on use, warranty, and support) of the original manufacturers license agreement which is supplied with such third party software and Licensee shall comply with such terms and conditions at all times.

14. Export Restrictions

15. Delay And Force Majure

16. General

b) Notwithstanding Subsection (a) of this Section, either party may assign its rights, duties and obligations pursuant to this Agreement to any entity (i) which is an Affiliate of such party, (ii) into which it may be merged or reorganized or (iii) to which all or substantially all of its capital stock or assets may be sold or assigned, so long as the assignee agrees in writing to be bound by the terms of this Agreement.

c) The parties agree that any and all controversies, claims, or disputes with anyone, arising out of, relating to, or resulting from this Agreement shall be subject to binding arbitration under the Arbitration provisions set forth in California Code of Civil Procedure (the “CCP) and pursuant to California law. The Federal Arbitration Act shall continue to apply with full force and effect notwithstanding the application of procedural rules set forth in the CCP. The parties hereby waive any right to a trial by jury, including any statutory claims under local, state, or federal law. The parties agree that any arbitration will be administered by Judicial Arbitration & Mediation Services, Inc. (JAMS). The parties agree that the arbitrator shall have the power to decide any motions brought by any party to the arbitration, including motions for summary judgment and/or adjudication and motions to dismiss and demurrers. The parties agree that the arbitrator shall issue a written decision on the merits and that the arbitrator shall have the power to award any remedies available under applicable law. The parties agree that the decree or award rendered by the arbitrator may be entered as a final and binding judgment in any court having jurisdiction thereof. The parties agree that the arbitrator shall administer and conduct any arbitration in accordance with California law, and that the arbitrator shall apply substantive and procedural California law to any dispute or claim, without reference to rules of conflict of law. To the extent that the JAMS Rules conflict with California law, California law shall take precedence. The parties further agree that any arbitration under this Agreement shall be conducted in San Francisco, California. Except as provided by this Agreement, arbitration shall be the sole, exclusive, and final remedy for any dispute between Consultant and the Company. Accordingly, except as provided for by this Agreement, neither party will be permitted to pursue court action regarding claims that are subject to arbitration.

d) Notwithstanding anything in this Section 17 to the contrary, the parties agree that any party may also petition the court for temporary restraining orders, injunctions or other similar pre-judgment remedies, as well as enforcement of orders or judgments, may be sought from any court in San Francisco, CA at any time.

e) The party prevailing in any action or proceeding between the parties arising under or related to this Agreement or the subject matter hereof shall be entitled to recover its reasonable attorneys fees and expenses in addition to costs of suit and such other recovery and relief as may be authorized by law.

f) All notices, demands or consents required or permitted hereunder shall be in writing and shall be deemed effective when received if (i) sent by overnight mail such as Federal Express, or UPS, (ii) sent by certified mail, return receipt requested, or (iii) sent by facsimile transmission provided the sender can evidence proof of fax transmission and provided sender also sends the original notice by first class mail within twenty-four (24) hours after sending such fax transmission. All notices shall be sent to the receiving partys address as set forth on the first page of this Agreement or to such other address that a party designates by providing written notice to the other party in accordance with the provisions of this Section 17(e). In the case of notices to eCIFM, copies of all such notices shall also be sent to eCIFMs General Counsel at the address set forth on the first page of this Agreement.

g) Should any provision of this Agreement be judicially determined to be invalid, ineffective, illegal, void, voidable or unenforceable in any respect under present or future laws, then the provisions shall be reformed by the court to be as close to the intent of such provision as is enforceable and the remainder of this Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated.

h) No failure or delay on the part of either party in the exercise of any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedy.

i) The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

j) Licensee agrees that eCIFM may use Licensee, its name and logo, as a reference site, which may include phone references and visits to Licensees site. Such references shall be scheduled at mutually agreeable dates and times. Licensee further agrees that eCIFM may use Licensee as a success story for publication, and include Licensees name and logo on any customer reference list that eCIFM may provide to potential licensees of eCIFMs products, as well as its customer lists and references contained on eCIFMs Web Site and other marketing and advertising material. Licensee further agrees that eCIFM may issue a press release after the parties execution of this Agreement announcing this Agreement and the relationship between Licensee and eCIFM.

k) It is the intention of the parties that eCIFM shall be an independent contractor and not an employee, agent, joint venture, or partner of Licensee. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Licensee and either eCIFM or any employee or agent of eCIFM with respect to the services or licenses provided herein.

17. Entire Agreement And Amendments