Company

AMPchroma^TM License and Services Agreement

This License and Services Agreement (the “LSA” and, together with all Exhibits and referenced documents (each of which is hereby incorporated), the “Agreement”) is entered into as of ____________, 20__ (the “Effective Date”) by and between Antenna Software, Inc., a Delaware corporation having its principal place of business at 111 Town Square Place, Jersey City, NJ 07310 (“Antenna”), and __________________, a _________________________ having its principal place of business at the address set forth in the Order Form (“Company”).

1. DEFINITIONS

1.1 “Aggregated Data” means usage information of multiple EndUsers that has been combined in such a way that the Personal Information of any individual EndUser is no longer accessible and no individual EndUser can be identified.

1.2 “Antenna Technology” means computer programs, works of authorship, know-how, inventions, processes, data, technical specifications, information and tables, and all improvements, derivative works, updates, fixes, and new releases thereof, which are used by Antenna to provide the Services.

1.3 “App” means a mobile application that is developed, distributed, and/or hosted using the Services.

1.4 “AUP” means the Antenna Acceptable Use Policy located at http://www.antennasoftware.com/company/legal/aup.

1.5 “Cardholder Data” means, with respect to any payment card, magnetic stripe data (track data), primary account number, cardholder name, expiration date, service code, pin number, pin blocks, card validation codes/values or other authentication data used to verify and transact credit card purchases.

1.6 “Company Content” has the meaning given in Section 8.2.

1.7 “EndUser” means an individual purchaser or user of an App developed, distributed, and/or hosted through the Services. EndUsers may include but are not limited to Company employees, consultants, contractors and agents, and individual customers.

1.8 “EndUser Data” means Personal Information and Non-PII. EndUser Data also includes that portion of such Personal Information and Non-PII that is incorporated into Aggregated Data, provided that Aggregated Data may include EndUser Data of Company’s EndUsers as well as the customers of other clients of Antenna.

1.9 “Intellectual Property Rights” means any intellectual property or proprietary rights, including but not limited to copyrights, moral rights, trademarks (trade names and service marks), patents (including patent applications) and trade secrets, recognized in any country or jurisdiction in the world.

1.10 “Non-PII” (non personally identifiable information) means information that cannot be used to identify specific individuals. Examples of Non-PII may include, without limitation, demographic data (not combined with Personal Information), IP address (not combined with Personal Information), and browser type. Non-PII may be derived from Personal Information.

1.11 “Order” means a signed order in the form of Exhibit A, under which Company may order Services from Antenna.

1.12 “Personal Information” means any information: (a) that identifies or can be used to identify, contact, or locate the person to whom such information pertains; or (b) from which identification or contact information of an individual person can be derived. Personal Information includes, but is not limited to: name, address, phone number, fax number, email address, and Cardholder Data. Additionally, to the extent any other information (such as a personal profile, unique identifier, biometric information, or IP address) is associated or combined with Personal Information, then such information also will be considered Personal Information.

1.13 “Professional Services” has the meaning given in Section 3.4

1.14 “Service(s)” means the applicable service(s) provided by Antenna as selected in an Order and further described in the User Guide. Services also include any mutually agreed Professional Services.

1.15 “Service Catalog” means the listing of available Services, including applicable pricing and service levels, provided to Company.

1.16 “Security and Privacy Policy” has the meaning given in Section 6.2.

1.17 “Term” has the meaning given in Section 12.1.

1.18 “User Guide” means the detailed user guides for the individual Services located at http://gateway.antennasoftware.com/docs/archives/sf/index.html.

Other capitalized terms used in this LSA have the meanings provided in the Schedules or are defined in place.

2. LICENSE

Antenna grants Company a non-exclusive and non-transferable license to (i) access and use Antenna Technology (including downloading of client components for use of certain features of the Antenna Technology), and (ii) allow EndUsers to access, download, and use Apps, as and to the extent set forth in this Agreement during the Term. To the extent Antenna includes any third party software in the Antenna Technology or any Apps, Company’s use of such Antenna Technology or Apps shall be subject to any restrictions in the applicable third party software license as set forth at www.antennasoftware.com/licensing.htm. Company will not (a) reverse engineer, disassemble, decompile or otherwise attempt to derive source code from the Antenna Technology, (b) make the Antenna Technology available to any third parties other than as expressly permitted in this Agreement, (c) modify, adapt, translate or create derivative works based on the Antenna Technology except as expressly permitted by this Agreement, (d) reproduce any portion of the Antenna Technology except as expressly permitted in this Agreement, or (e) permit or authorize any party to do any of the foregoing. The foregoing license shall also extend to subcontractors of Company, but only to the extent that such subcontractors are performing services for or on behalf of Company and only in support of such services. 

3. SERVICES

3.1 Antenna will provide to Company the Services in accordance with the then-current Service Catalog

3.2 Company may provide certain Company Content in connection with the Services. Company is obligated to ensure that (i) the Company Content is suitable for publication through the Services, (ii) the Company Content is consistent with the Antenna AUP, and (iii) Company has all rights needed to publish the Company Content through the Services. Should any Company Content be, in Antenna’s sole determination, inappropriate or otherwise objectionable or undesirable (whether for editorial, legal, business, or other reasons) or otherwise inconsistent with the AUP, Antenna may immediately suspend Company’s use of the Services until the Company Content is removed or corrected. If Company repeatedly violates the AUP, Antenna may immediately terminate this Agreement, effective upon notice to Company. Without limiting the generality of the foregoing, Company agrees that any Company Content or Apps developed by Company will be compliant with any regulations applicable to Company’s industry and/or the functionality of such App (e.g., compliance with CAN-SPAM).

3.3 Third Party Products and Services.

(a) Antenna may from time to time make available to Company access to third-party products or services, including but not limited to marketplaces for applications (e.g., the “iPhone App Store” or the “Android Market”). Any acquisition by Company of such non-Antenna products or services (including access through use of the Antenna Services), and any exchange of data between Company or EndUsers and any non-Antenna provider, is subject to the terms of Company’s relationship with such provider, including any applicable terms of use or agreement Company may enter into with such third party provider. Antenna makes no warranty regarding the operation of such products or services other than that, in the case of an application marketplace, Apps developed by Antenna will be able to download via such marketplace if such marketplace is functioning in conformance with its applicable specifications.

(b) Company acknowledges and agrees that Antenna may allow third party providers of non-Antenna products and services to access Company Content or EndUser Data as required for the interoperation of such products and services with the Services. Antenna will not be responsible for any disclosure, modification or deletion of Company Content or EndUser Data resulting from any such access by third party products and services; any responsibility of the third party provider will be governed solely by Company’s agreement with such third party provider.

3.4 From time to time, the parties may agree that Antenna will provide consulting or other custom professional services (the “Professional Services”). The details of any Professional Services must be set forth in a mutually agreed Professional Services agreement signed by both parties. Antenna will not be responsible for any Professional Services to which it has not agreed in writing.

4. COMPLIANCE WITH LAWS

Each party will, at its cost and expense, obtain all necessary regulatory approvals, licenses, and permits applicable to its business and comply with all laws and regulations applicable to its business and the performance of its obligations under this Agreement, as such laws and regulations may be revised from time to time. Without limiting the generality of the foregoing, the Antenna Technology and any Apps developed using the Antenna Technology may be subject to US or foreign jurisdictions’ export control laws, rules and regulations. Company shall fully comply with all such laws, rules and regulations in the export, resale or other disposition of the Products.

5. CONFIDENTIALITY

5.1 Confidential Information.

(a) “Confidential Information” of a party means any non-public, commercially proprietary or sensitive information (or materials) belonging to, concerning or in the possession or control of the party or its affiliates (the “Furnishing Party”) that is furnished, disclosed or otherwise made available to the other party (the “Receiving Party”) (or entities or persons acting on the Receiving Party’s behalf) in connection with this Agreement and which is either marked or identified in writing as confidential, proprietary, secret or with another designation sufficient to give notice of its sensitive nature, or is of a type that a reasonable person would recognize it to be commercially sensitive. In the case of Antenna, Confidential Information includes all information relating to the Antenna Technology and the delivery of the Services. In the case of Company, Confidential Information includes Personal Information of EndUsers. In the case of both parties, Confidential Information includes information concerning the party’s and/or its affiliates’ products, marketing strategies, financial affairs, employees, customers or suppliers, regardless of whether or how it is marked.

(b) The obligations relating to Confidential Information set forth in this Agreement do not apply to any particular information of the Furnishing Party (other than Personal Information) that the Receiving Party can demonstrate: (i) was in the possession of, or was rightfully known by, the Receiving Party without an obligation to maintain its confidentiality prior to receipt from the Furnishing Party; (ii) was or has become generally available to the public other than as a result of disclosure by the Receiving Party or its agents; or (iii) was independently developed by the Receiving Party without use of or reference to any Confidential Information of the Furnishing Party.

5.2 Obligations.

(a) Each party acknowledges that it may be furnished, receive or otherwise have access to Confidential Information of the other party in connection with this Agreement.

(b) As necessary to accomplish the purposes of this Agreement, the Receiving Party may disclose Confidential Information of the Furnishing Party to any employee, officer, director, contractor, agent or representative of the Receiving Party who has a legitimate need to know the information in question for the purposes of this Agreement and who is bound to the Receiving Party to protect the confidentiality of the information in a manner substantially equivalent to that required of the Receiving Party pursuant to this Agreement. The Receiving Party may also disclose Confidential Information of the Furnishing Party to the Receiving Party’s regulatory agencies and auditors, provided that prior to such disclosure, they are made aware of the Receiving Party’s obligations of confidentiality.

(c) The Receiving Party will use at least the same degree of care as the Receiving Party employs to avoid unauthorized use or disclosure of its own confidential information of a similar nature, but in no event less than reasonable care.

(d) If any unauthorized disclosure, loss of, or inability to account for any Confidential Information of the Furnishing Party occurs, the Receiving Party will promptly so notify the Furnishing Party and will cooperate with the Furnishing Party and take such actions as may be necessary or reasonably requested by the Furnishing Party to minimize the violation and any damage resulting from it.

(e) Upon termination or expiration of this Agreement, the Receiving Party will return or, at the Furnishing Party’s request, destroy, all Confidential Information received from the Furnishing Party in connection with this Agreement, except as otherwise required to be maintained pursuant to this Agreement or applicable law or regulation.

6. ENDUSER DATA

6.1 Ownership of EndUser Data. As between the parties, Company will own all Personal Information and Non-PII relating to EndUsers, and Antenna will own all Aggregated Data.

6.2 Permitted Uses of Customer Data. Antenna’s use of Customer Data (including Personal Information and Non-PII) will at all times be subject to the terms of the then-current AMPCHROMA Security and Personal Information Policy document (the “Security and Privacy Policy”), the most current version of which is always available at http://www.antennasoftware.com/company/legal/spip.

6.3 Company Privacy Policy. The parties acknowledge that Company will maintain the relationship with the EndUsers, and Company’s privacy policy will govern the use of all EndUser Data. Company represents and covenants that its privacy policy permits (and will continue to permit) (a) Company to provide Antenna with any Personal Information provided by Company related to this Agreement, and (b) Antenna to use the EndUser Data for the Permitted Uses, unless otherwise required by applicable legislation or a regulatory body, in which case Company will promptly so notify Antenna in writing.

7. COMPENSATION

7.1 Charges. As consideration for the subscription to the Services provided by Antenna under this Agreement, Company will pay the fees set forth in and in accordance with the Order.

7.2 Quarterly Reconciliation. On a quarterly basis, the parties will review the actual usage of the Services during the preceding three months. If in any such month Company has more than the licensed number of users than subscriptions purchased on the applicable Order, Company shall pay to Antenna the excess usage charges set forth in the Order thirty (30) days from the date of the invoice setting forth such excess usage charges.

7.3 Invoicing and Payment. Except for quarterly reconciliation payments or as otherwise set forth in an Order, (i) fees are payable annually in advance and will be due thirty (30) days from date of invoice, (ii) no discount or refund will be provided in the event that actual usage is less than EndUser subscriptions purchased,(iii) the number of EndUser subscriptions purchased cannot be decreased during the relevant term stated in the Order, and (iv) payment obligations are non-cancellable and fees paid are non-refundable. Overdue amounts shall accrue interest at the rate of 1 ½% per month, or at the highest legal interest rate, if less. Company shall reimburse Antenna for all expenses (including reasonable attorneys’ fees) incurred by Antenna to collect any amount that is not paid when due. Antenna reserves the right (in addition to any other rights or remedies Antenna may have) to discontinue the Service and suspend all Company’s access to the Service if any fees set forth in an Order are more than 30 days overdue until such amounts are paid in full.

7.4 Taxes. Company will be responsible for payment of any taxes (including any sales, use, value-added and similar transaction taxes), however designated, levied or based on Company’s receipt of the Services hereunder, excluding any taxes based on Antenna’s net income. Any taxes on the purchase of Apps by EndUsers will be the responsibility of Company and the relevant EndUser(s).

7.5 Audit Rights. Each of Antenna and Company will maintain accurate books and records relating to the consumption of Services and fees payable pursuant to this Agreement for at least one (1) year after the provision of services. No more than once in any rolling twelve (12) month period, and upon at least thirty (30) days’ prior notice, a party may (or a reputable independent third party hired by such party), at such party’s own expense, audit and review any such books and records as related to this Agreement in order to verify the accuracy of any payments made to Antenna pursuant to this Agreement (an “Audit”). Each audited party will reasonably cooperate with all Audits, including making available relevant records and documents at its principal business address during normal business hours. If an Antenna audit of Company identifies any discrepancy, Antenna will provide Company a written copy of the results of the Audit setting forth the discrepancy and describing, in reasonable detail, the basis upon which the same was determined. Company will pay Antenna for the amount of any shortfall within thirty (30) days of receipt of an invoice covering charges based on the Audit Results. For the avoidance of doubt, such Audit rights will not permit access to Cardholder Data or Personal Information.

8. PROPRIETARY RIGHTS

8.1 Ownership by Antenna. As between the parties, Antenna is the exclusive owner of and retains all right, title and interest in and to the Antenna Technology, and, subject to Company’s rights in the Company Content set forth in Section 8.2, the Services, including without limitation any templates and any and all other Intellectual Property Rights in or to the Services.

8.2 Ownership by Company. Company is the exclusive owner of and retains all right, title and interest in and to any and all Company-specific: text, data images, design, structure, graphic images, audio, video and audiovisual material, trademarks, and other materials, to the extent such materials are contributed by Company for incorporation into any materials developed in connection with the Services (collectively “Company Content”), including without limitation all Intellectual Property Rights therein.

8.3 License Grant to Company Content. Company grants to Antenna a nonexclusive, worldwide and royalty-free right and license during the Term to store, reproduce, display, perform, transmit and use the Company Content in any App or mobile website as reasonably necessary for the purpose of providing the Services.

8.4 Trademarks.

(a) Each party (the “Using Party”) agrees that, with respect to its use of the other party’s (the “Owning Party”) trademarks, marks and trade names (“Marks”) provided or otherwise identified by the Owning Party for the Using Party’s use: (i) as between the parties, all rights in and to such Marks are owned by the Owning Party, (ii) the Using Party will do nothing inconsistent with such ownership, (iii) all uses of such Marks will inure to the sole benefit of and be on behalf of the Owning Party, (iv) the Using Party will use the Owning Party’s Marks in accordance with any guidelines for the use of such Marks as provided by the Owning Party from time to time, (v) the Using Party will not alter any such Marks and will use only exact reproductions thereof as supplied by the Owning Party, and (vi) at the Owning Party’s reasonable request, all depictions of such Marks that the Using Party intends to use will be submitted to the Owning Party for approval of design, color, or other details.

(b) Company acknowledges that any web pages or Apps from which Company or EndUsers access the Services will include the mark “Powered by Antenna Software, Inc.” or such other designation as Antenna reasonably selects.

(c) Company agrees that Antenna may list Company on its website and in other marketing materials as a customer and may use Company’s logo for such purposes.

8.5 No Other Licenses. Except as specifically provided in this Agreement, Company does not grant to Antenna any right or license, express or implied, in the Company Content or any Company Intellectual Property Rights. Except as specifically provided in this Agreement, Antenna does not grant to Company any right or license, express or implied, in the Services, the Antenna Technology or any Antenna Intellectual Property Rights.

8.6 Suggestions. Antenna will have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Company, or EndUsers, relating to the operation of the Services.

9. WARRANTIES AND DISCLAIMER

9.1 Mutual Warranty. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.

9.2 Antenna Warranty. Antenna warrants that the Services (i) will be rendered in a workmanlike manner and (ii) will perform materially in accordance with the User Guide. Company’s sole and exclusive remedy for a breach of this warranty will be for Antenna to correct or reperform the Services to comply with this warranty.

9.3 Disclaimer. ANTENNA MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SERVICES, AND ANTENNA SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ANTENNA DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.

10. INDEMNITIES

10.1 By Antenna.

(a) Antenna will defend, indemnify and hold harmless Company and its respective directors, officers, employees, subcontractors and agents from and against all damages, expenses (including reasonable attorneys’ fees and costs), judgments and other liabilities arising out of or on account of a third party claim suit or proceeding (collectively, “Claims”) arising from or related to infringement of any U.S. copyright, patent, trade secret, or trademark of any third party (an “Infringement Claim”) to the extent attributable to the Services or the Antenna Technology, provided, however, that Antenna will not assume liability for Infringement Claims attributable to (i) the combination of the Services or the Antenna Technology with services, solutions, information or technology not provided by Antenna (including Company Content), (ii) Services that are provided to comply with designs, requirements, or specifications required by or provided by Company or (iii) use of the or Antenna Technology other than as contemplated by this Agreement (collectively, "Other Causes").

(b) Should any use of the Antenna Technology or the Services be enjoined, or if Antenna reasonably believes that any item of the Antenna Technology or element of the Services may be subject to an Infringement Claim, then Antenna may, at its sole option and expense: (a) procure the right to use the affected item or element as provided in this Agreement, (b) replace the affected item or element with other non-infringing technology or services with equivalent functionality, (c) suitably modify the affected item or element so that it does not infringe, or (d) if Antenna determines that none of the foregoing is feasible, terminate this Agreement and refund a pro rata portion of any prepaid fees for the remainder of the Term.

10.2 By Company. Company, at its own expense, will defend, indemnify and hold harmless Antenna and its respective directors, officers, employees, subcontractors and agents from and against any Claims arising from or related to (i) the Company Content, including an Infringement Claim, provided, however, that Company will not assume liability for Infringement Claims attributable to the use by Antenna of the Company Content other than as contemplated by this Agreement or (ii) Other Causes.

10.3 Sole Remedy. THIS SECTION 10 STATES THE ENTIRE LIABILITY AND OBLIGATIONS OF THE INDEMNIFYING PARTY, AND THE EXCLUSIVE REMEDY OF THE INDEMNIFIED PARTY, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS UNDER THIS AGREEMENT.

10.4 The obligations of the Indemnifying Party as set forth in this Section 10 are conditioned on the Indemnified Party (a) providing prompt notice to the Indemnifying Party of any Claim or Infringement Claim for which the Indemnified Party will seek indemnification; (b) tendering control of the resolution of the dispute (including settlement) to the Indemnifying Party; and (c) providing reasonable assistance to Indemnifying Party as requested.

11. LIMITATION OF LIABILITY

11.1 No Consequential Damages. EXCEPT FOR A BREACH BY EITHER PARTY OF ITS OBLIGATIONS UNDER SECTION 2, 4, 5 or 8, AND EXCEPT FOR AMOUNTS PAYABLE TO THIRD PARTIES UNDER SECTION 10 (COLLECTIVELY, THE “EXCLUDED CLAIMS”), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER ENTITY FOR ANY LOST PROFITS, COSTS OF COVER, OR OTHER SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY.

11.2 Liability Cap. EXCEPT FOR THE EXCLUDED CLAIMS AND ANY AMOUNTS EXPRESSLY DUE AND OWING UNDER THIS AGREEMENT, ANTENNA’S TOTAL LIABILITY TO THE OTHER PARTY UNDER OR ARISING OUT OF THIS AGREEMENT WILL BE LIMITED TO THE AGGREGATE FEES PAID TO ANTENNA UNDER THIS AGREEMENT FOR THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM (THE “DIRECT DAMAGES CAP”). IF THE EVENT GIVING RISE TO THE CLAIM OCCURS PRIOR TO THE TWELFTH MONTH OF THE TERM, THE DIRECT DAMAGES CAP SHALL BE 12 TIMES THE AVERAGE MONTHLY FEES EARNED BY ANTENNA PRIOR TO SUCH EVENT.

11.3 Excluded Claims. EACH PARTY’S TOTAL LIABILITY TO THE OTHER PARTY RESULTING FROM THE EXCLUDED CLAIMS WILL BE LIMITED TO 5 TIMES THE DIRECT DAMAGES CAP, PROVIDED THAT AMOUNTS PAID IN RESPECT OF CLAIMS THAT ARE NOT EXCLUDED CLAIMS WILL BE APPLIED AGAINST AND WILL REDUCE BOTH THE DIRECT DAMAGES CAP AND THE CAP UNDER THIS SECTION 11.3. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

12. TERM AND TERMINATION

12.1 Term. The initial term of this Agreement will commence on the Effective Date and continue for a period of one year after the Effective Date (“Initial Term”), unless earlier terminated as set forth in this Section 12. Following the Initial Term, the Agreement will automatically renew on the terms and conditions then in effect, at the then current list price, for subsequent one (1) year terms (each a “Renewal Term” and, together with the Initial Term, the “Term”) unless either party informs the other party in writing of its intent not to renew at least ninety (90) days prior to the then-current expiration date of the Term.

12.2 Termination for Breach or Insolvency. Either party may terminate this Agreement upon written notice if the other party (a) breaches any material term of this Agreement and fails to cure such breach within sixty (60) days after written notice thereof; or (b) ceases to do business in the ordinary course or is insolvent (i.e., unable to pay its debts in the ordinary course as they come due), or is the subject of any liquidation or insolvency proceeding which is not dismissed within ninety (90) days, or makes any assignment for the benefit of creditors.

12.3 Effect of Termination. Upon the expiration or termination of this Agreement:

(a) Company will immediately pay Antenna all amounts due hereunder;

(b) Upon request, each party will return to the other party all Confidential Information received from such other party;

(c) All licenses granted under this Agreement will cease unless expressly stated otherwise;

(d) Company will remove or terminate all links to the Services; and (e) Antenna will remove all reference to Company from its website and any promotional materials published following termination.

12.4 Survival. Sections 5, 8.1, 8.2, 8.5, 8.6, 10, 11, 12.3, 12.4, and 13 will survive the termination or expiration of this Agreement for any reason.

13. PUBLICITY

13.1 Publicity. The parties will issue a joint press release on or shortly after the Effective Date announcing their entry into this Agreement. This press release will be subject to the written approval of both parties prior to release, which approval will not be unreasonably withheld or delayed.

13.2 Joint Marketing. The parties may mutually agree from time to time during the Term to engage in joint marketing activities to promote their products, including seminars, press announcements, trade shows, use of logos on marketing materials (including website), user groups or other events or initiatives.

13.3 Case Study. The parties may mutually agree to develop a case study during the Term detailing the return on investment of Company’s use of the Services.

13.4 Reference. Antenna may list Company as a client in marketing materials. Company will be reasonably available to serve as a reference to prospective Antenna clients.

14. MISCELLANEOUS

14.1 Injunctive Relief. The parties acknowledge that the breach or threatened breach of Section 2 or 5, or any infringement or misappropriation of either party’s Intellectual Property Rights by the other party, would cause irreparable harm to the non-breaching party, the extent of which would be difficult to ascertain. Accordingly, in addition to all other remedies available to it at law, a party may seek immediate injunctive relief if there is a breach or threatened breach of such Sections, or any infringement or misappropriation of its Intellectual Property Rights, by the other party or any of the other party’s employees or subcontractors.

14.2 Virus. Antenna will use industry-available tools to prevent Viruses from being coded or introduced into the Antenna Technology. If a Virus is found to have been introduced into Company’s systems by the Antenna Technology, Antenna will use commercially reasonable efforts to provide a virus-free version of the Antenna Technology and to assist Company to remove the Virus. "Virus" shall mean (i) program code or programming instruction or set of instructions intentionally designed to disrupt, disable, harm, interfere with or otherwise adversely affect computer programs, data files or operations; or (ii) other code typically described as a virus or by similar terms, including Trojan horse, worm or backdoor.

14.3 Non-Solicitation. During the Term and for 12 months following termination or expiration of this Agreement, neither Antenna nor Company will solicit for employment or hire any of the other party’s employees without the prior written approval of the other party, other than an employee who responds to a generally-available posting (e.g., newspaper or job board).

14.4 Assignment. Neither party may assign or delegate this Agreement or any of its rights or duties hereunder, directly, indirectly, by operation of law or otherwise, without the written consent of the other, and any such purported assignment or delegation will be void. Notwithstanding the foregoing, Antenna may assign this Agreement in connection with the sale or other transfer of all or substantially all of Antenna’s equity or assets to which this Agreement relates or to a successor entity in the event of re-organization. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.

14.5 Waiver. No failure or delay by either party in exercising any right, power, or remedy under this Agreement will operate as a waiver of any such right, power or remedy.

14.6 Choice of Law; Jurisdiction, Venue. This Agreement will be governed by the laws of the State of New York, without regard to its conflicts of laws provisions. Each party irrevocably consents to the exclusive jurisdiction of and venue in the federal or state courts in New York County, New York.

14.7 Notices. Any notice, notification, demand or request provided under this Agreement must be in writing and sent to the party’s address provided in this Section

14.8 by (a) FedEx or other comparable overnight courier (signature required), (b) registered or certified mail, postage prepaid, return receipt requested, (c) personal delivery with a signed receipt, or (d) email, with read receipt requested. All notices, notifications, demands or requests so given will be deemed given and received (w) if mailed, seven (7) days after being deposited in the mail, (x) if sent via overnight courier, the next business day after being deposited, (y) if personally delivered, when delivered, and (z) if sent by email, when the read receipt is received by the sender.

For Notices to Antenna:
Antenna Software, Inc.
111 Town Square Place
Jersey City, NJ 07310
Attn: General Counsel
Email: [email protected]

For Notices to Company:
Address and contact person and email address of contact person as indicated on the Order Form

14.8 Independent Contractors. The parties are independent contractors with respect to each other. Each party is not and will not be deemed to be an employee, agent, partner, joint venturer, franchisee or legal representative of the other for any purpose and will not have any right, power or authority to create any obligation or responsibility on behalf of the other.

14.9 No Unauthorized Representations. Company will not make any representation or statement of any kind concerning the Services or the Antenna Technology without the prior written authorization of Antenna.

14.10 No Third Party Beneficiaries. Nothing express or implied in this Agreement is intended to confer, nor will it confer, any rights, remedies, obligations or liabilities whatsoever upon any person other than the parties hereto and their respective permitted successors and assigns.

14.11 Subcontractors. To the extent that either party uses subcontractors in connection with this Agreement, such party shall be responsible for ensuring the compliance of its subcontractors with the terms of this Agreement, including but not limited to the Confidentiality terms of Section 5 and the Proprietary Rights terms of Section 8, and such party shall be responsible for any breach of this Agreement by its subcontractors.

14.12 Severability. If any provision of this Agreement will be held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions of this Agreement will remain in full force and effect.

14.13 Force Majeure. Neither party will be deemed in default hereunder, nor will it hold the other party responsible for, any cessation, interruption or delay in the performance of the affected party’s obligations hereunder due to causes beyond its reasonable control, including, but not limited to: earthquake, flood, fire, storm or other natural disaster, act of God, labor controversy or threat thereof, civil disturbance or commotion, disruption of the public markets, war or armed conflict or the inability to obtain sufficient material, supplies, labor, transportation, power or other essential commodity or service required in the conduct of its business, including internet access, or any change in or the adoption of any law, ordinance, rule, regulation, order, judgment or decree, provided, however, that the affected party makes commercially reasonable efforts to perform despite such event, which reasonable efforts will include, at a minimum, implementing a reasonable disaster recovery/business continuity plan for an operation of the size and kind of the affected party.

14.14 Titles and Headings. The titles, captions and headings of this Agreement are included for ease of reference only and will be disregarded in interpreting or construing this Agreement. Unless otherwise specifically stated, all references in this Agreement to "Sections" and "Schedules" will mean Sections of and Schedules to this Agreement.

14.15 Counterparts. This Agreement, and any amendment to this Agreement, may be executed and delivered in any number of counterparts, by facsimile or by email, each of which, when so executed and delivered, will be deemed an original, and such counterparts together will constitute one and the same instrument.

14.16 Complete Understanding and Amendment. This Agreement constitutes the final, complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreement, either written or oral. No modification, amendment or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties.

IN WITNESS WHEREOF, the parties execute this Agreement as of the Effective Date

Antenna Software, Inc.                                      ______________________________

By: _______________________________     By: _______________________________
Name: ____________________________      Name: _____________________________
Title: ______________________________    Title: ______________________________
Date: ______________________________    Date: ______________________________