END USER LICENSE AGREEMENT IMPORTANT: THIS IS A LICENSE, NOT A SALE. CAREFULLY READ ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE BEFORE ACCEPTING THIS LICENSE AND USING THIS PRODUCT. INSTALLING THE ACTIVATION KEY PROVIDED WITH THIS PRODUCT OR YOUR CONTINOUS USE OF THIS PRODUCT FOR MORE THAN 30 DAYS, INDICATES YOUR ACKNOWLEDGMENT THAT YOU HAVE READ THIS LICENSE AND AGREE TO ITS TERMS. THIS LICENSE AGREEMENT IS YOUR PROOF OF LICENSE. This END USER LICENSE AGREEMENT ('Agreement') is made and entered effective the date you receive the License Code Key from Unlimi-Tech (the 'Effective Date ') between Unlimi-Tech Software Inc. ('Licensor') and you ('Licensee'). WHEREAS the parties have agreed that Licensee is to be granted a license of the FileCatalyst? Product by Licensor in accordance with the terms and conditions of this Agreement; NOW, THEREFORE, for good and valuable consideration (receipt and sufficiency of which are hereby acknowledged), the parties agree and contract as follows: 1.0 GRANT OF LICENSE. 1.1 Licensor hereby grants Licensee a perpetual, non-exclusive, worldwide license to use the FileCatalyst? Product, subject to the terms and conditions herein. 1.2 Definitions. For purposes of this Agreement, the following definitions shall apply: 1.2.1 The 'Product' shall mean: A. File transfer software commercially referred to as 'FileCatalyst? Software' ('Program'); B. A 'Product License Key' (also referred to as 'Activation Key' or the 'Key'); C. All documents which are reasonably necessary for Licensee to operate and support the Program and the Key (the 'Documentation'); and D. Any and all 'Bug Fixes,''Updates' and 'Upgrades'(as defined herein) applicable to the Program, Key, and Documentation. 1.2.2 'Bug Fixes' shall mean modifications resulting in a correction to an error, bug or discrepancy in software code that prevents such code from performing in accordance with its specifications or other related documentation. 1.2.3 'Updates' shall mean new versions of the Product made available by Licensor to its customers of the Product that contain bug fixes and/or minor enhancements or improvements, but do not contain significant new features. 1.2.4 'Upgrades' shall mean new versions of the Product made available by Licensor to its customers of the Product that contain major enhancements and new features. 1.2.5 'End User' means any person or entity that will load and run the Program through Licensee's web site. 1.2.6 'Licensing Fees' shall mean those fees that Licensee shall pay Licensor during the time this License is in effect as specified at Annex A, attached hereto and incorporated herein by this reference. 1.2.7 'Days' shall mean calendar days unless otherwise expressly designated. 1.2.8 'FTP' shall mean File Transfer Protocol that allows computers connected to the Internet to exchange files. 1.2.9 The term 'you' means your business, the corporation, partnership, sole proprietor or other entity that is the owner of the server on which the Program will be installed. 1.3 Terms And Conditions of License 1.3.1. Licensee shall download Program from Licensor's corporate website at www.utechsoft.com. Licensor will issue a Product License Key to Licensee within a reasonable amount of time after the Licensee has provided server details. In consideration thereof, Licensee shall pay Licensor the 'Licensing Fees' specified in Schedule 'A' 1.3.2 Licensee may make backup copies of the Program for archive or backup purposes consistent with Licensee's standard backup process and procedures. 1.3.3 Licensee may make as many copies of the Documentation as reasonably necessary to exercise Licensee's rights under this Agreement, provided that such copies shall be used by Licensee only within Licensee's business or by visitors to Licensee's web site. 1.3.4 All rights, title and interest of every kind whatsoever in the Program and all Updates, Upgrades and Documentation, including, without limitation, all copyrights, patents and applications, Trademarks, trade names and trade secrets, and all moral and other intellectual property rights therein, are and shall at all times remain the sole and exclusive property of Unlimi-Tech Software, Inc.. Licensee shall acquire no right, title or interest in or to the Product other than the limited right to use as granted herein. 1.3.5 Licensee shall not, at any time during the Term of this Agreement or at any time thereafter: (a) resell, relicense or redistribute the Product or any component or part thereof to any third party; (b) use, copy or otherwise reproduce, in whole or in part, any part of the Program or Documentation except as expressly permitted in this Agreement; (c) change, adapt, modify, translate, reverse engineer, de-compile, disassemble or create any derivative works or any competitive or emulating software or program based on or derived from the Program or Documentation; or (d) remove, obscure, change or tamper in any manner whatsoever with any Trademark, logo, copyright or other proprietary notices related to the Program or Documentation. 1.3.6 Licensee acknowledges and agrees that any use or disclosure of proprietary and confidential information about the Product (the 'Confidential Information') for a purpose not authorized by this Agreement may cause immediate and irreparable harm to Licensor or owner of the Product. Therefore, Licensee agrees to take all reasonable steps to maintain the confidentiality of the Confidential Information and shall not disclose or make it available in any form to any person or entity for a purpose not authorized by this Agreement unless authorized by Licensor in writing. 2.0 WARRANTIES, DISCLAIMERS AND LIABILITIES. 2.1 Licensor warrants and represents as follows: 2.1.1 Licensor warrants that the media on which the Program and Key are recorded and delivered by Licensor to Licensee shall be free from defects in materials and workmanship under normal use for a period of twelve (12) months from the date Licensee receives the Product License Key from the Licensor. Licensee's exclusive remedy under this Section 2.1 of the Agreement shall be, at Licensor's option, a refund of the 'Licensing Fee' specified at Annex A, or replacement of the Product. THIS LIMITED WARRANTY AND ANY EXPRESS AND IMPLIED WARRANTIES OR CONDITIONS PERTAINING TO THE MEDIA INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN DURATION TO TWELVE (12) MONTHS FROM THE DATE LICENSEE RECEIVES THE PRODUCT LICENSE KEY FROM LICENSOR. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY. THE LIMITED WARRANTY SET FORTH HEREIN IS THE ONLY WARRANTY MADE TO LICENSEE AND IS PROVIDED IN LIEU OF ANY OTHER WARRANTIES (IF ANY) CREATED BY ANY DOCUMENTATION OR PACAKAGING. THIS LIMITED WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS, AND LICENSEE MAY ALSO HAVE OTHER RIGHTS WHICH VARY BY JURISDICTION. 2.1.2 Licensor has the right, without liability to others, to grant Licensee all of the rights granted by this Agreement. 2.1.3 Licensor has the full power to enter into this Agreement, to carry out its obligations under this Agreement, and to grant the rights granted to Licensee herein. 2.1.4 Licensor agrees to promptly provide Licensee with all documentation or other evidence necessary to reasonably assure Licensee that the warranties and representations Licensor makes hereunder are accurate and correct. 2.2 Licensor does not warrant that the End User's use of the Product will be uninterrupted or error-free, or that the Product will meet End User's business requirements. It is understood and agreed that the Product has inherent limitations and that End Users will satisfy themselves that the Product sufficiently meets their requirements prior to licensing the Product from Licensor. 2.3 DISCLAIMERS. EXCEPT AND TO THE EXTENT EXPRESSLY PROVIDED BY THIS SECTION 2.0 OF THE AGREEMENT, AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, THE PARTIES MAKE NO WARRANTIES AND REPRE-SENTATIONS TO EACH OTHER AND EACH PARTY HEREBY DISCLAIMS AND EXCLUDES ANY AND ALL OTHER EXPRESS, IMPLIED, AND STATUTORY WARRANTIES AND CONDITIONS. 2.4 NOTWITHSTANDING ANYTHING IN THIS SECTION 2.0 OF THE AGREEMENT, SHOULD A COURT OF COMPETENT JURISDICTION DETERMINE THAT THE PROGRAM IS A 'CONSUMER PRODUCT' UNDER ANY CONSUMER PROTECTION LEGISLATION AND IMPLY ANY WARRANTY OR CONDITION, THEN SUCH IMPLIED WARRANTIES OR CONDITIONS, IF ANY, ARE LIMITED IN TIME TO A PERIOD OF TWELVE (12) MONTHS AFTER LICENSEE RECEIVED THE PRODUCT LICENSE KEY FROM LICENSOR. AFTER THAT PERIOD, ALL IMPLIED WARRANTIES AND CONDITIONS ARE EXPRESSLY DISCLAIMED. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS OR LIMITATIONS OR EXCLUSIONS OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE LIMITATIONS PROVIDED BY THIS SECTION 2.0 MAY NOT APPLY. 2.5 Limitations of Liability 2.5.1 The maximum aggregate liability of the Licensor, its officers, directors, shareholders, employees and agents, under this Agreement for all claims, losses, damages, costs or injuries, however arising, including any cause of action based on warranty, contract, tort (including negligence), patent or copyright infringement, or any other cause of action whatsoever, at law or in equity, shall be limited to the License Fees paid by the Licensee under this Agreement in the preceding twelve (12) months period in respect of the specific Product (identified by the specific Product License Key) giving rise to the liability. 2.5.2 In no event shall either party be liable to the other for (1) any amounts representing lost data, lost files, lost business, lost profits or lost revenues, howsoever arising; or (2) any special, indirect, incidental or consequential damages arising therefrom or in any manner relating to the Product or any component thereof, even if advised of the possibility of same. 2.5.3 In no event shall Licensor be liable for: (1) damages or expenses arising from changes in the operating characteristics or functionality of the Product or any component thereof; or (2) damages arising from use of the Program with hardware or software configurations that fail to meet the minimum Hardware Requirements set out in Schedule 'D'. Licensee agrees to indemnify and hold Licensor harmless from and against respect all claims or damages excluded hereunder. 2.5.4 Limitation Period. In no event shall either party be liable for any Claim brought more than one (1) year after the cause of action arose or ought to have been discovered. 4.0 GENERAL 4.1 Amendments/Revisions. 4.1.1 No provisions in either party's business forms or correspondence (including but not limited to correspondence delivered by or through e-mail or Internet systems) shall supersede and/or amend the terms or conditions of this Agreement. 4.1.2 This Agreement may only be changed, amended, and/or modified by a written Amendment to this Agreement that is signed by an authorized representative of both Parties and which expressly refers to this Agreement. 4.2 Applicable Language. The parties hereto confirm that it is their wish that this Agreement be drawn up and executed in the English language only. In case of any conflict between the English version and any translated version of this Agreement, the parties acknowledge and agree that the English language version shall govern. Les parties aux presentes confirment leur volonte que cette convention soit redigee en langue anglaise seulement. 4.3 Assignability. This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors and permitted assigns. This Agreement may be assigned by either party in the event of a sale, merger, or consolidation of such party provided that the other party has consented in writing to such assignment, which consent shall not be unreasonably withheld. 4.4 Construction. This Agreement shall be construed and interpreted fairly in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the party drafting this Agreement in construing or interpreting the provisions hereof. 4.5 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, and shall be subject to the exclusive jurisdiction of the courts in Ontario. Each of the parties attorns and submits itself to the jurisdiction of such courts for the purpose of any such action. 4.8 Entire Agreement. The Parties have read this Agreement and agree to be bound by its terms, and further agree that it constitutes the complete and entire Agreement of the Parties and supersedes all previous and contemporaneous communications, correspondences, and Agreements between the Parties, whether such Agreements are oral or written, except any non-disclosure and confidentiality Agreements between the parties. No representations or statements of any kind made by either party, oral or written, which are not expressly stated herein, shall be binding on such party. 4.9 Force Majeure. 4.9.1 Notwithstanding anything in this Agreement, the parties shall use all commercially reasonable efforts to perform their obligations hereunder. However, neither party shall be responsible for delays or failure of performance to the extent they result from acts beyond the reasonable control of such party. Such acts shall include but not be limited to acts of God and the public enemy; terrorism, strikes; walkouts; riots; acts of war; epidemics; failure of suppliers to perform; governmental regulations; power failures; earthquakes or other natural disasters. 4.9.2 The foregoing provision, however, shall not release a party from using its best efforts to avoid or remove such cause for delay, nor from immediately notifying the other party, in writing, as soon as it has knowledge of the delay. Further, whenever such cause for delay shall cease to exist, such party shall also immediately notify the other party in writing and shall continue performance with reasonable promptness. 4.10 Headings. The headings of the several sections are inserted for convenience of reference only and are not intended to be a part of, or to affect the meaning or interpretation of, this Agreement. 4.11 Notice Provisions. 4.11.1 All notices pursuant to this Agreement shall be in writing given to or made upon the Parties at their following respective addresses: A. LICENSOR'S NOTIFICATION ADDRESS: Unlimi-Tech Software Inc. 1725 ST. Laurent Blvd. Suite 205 Ottawa Ontario, K1G 3V4 Canada ATTN: John Tkaczewski (613) 667-2439 4.11.2 All notices required or permitted to be given under this Agreement shall be in writing and either delivered personally, by pre-paid courier, or transmitted by facsimile or other similar means of electronic communication - provided that receipt of all such notifications shall be confirmed as having been received in order to constitute valid notice, and shall be deemed communicated, as follows: A. Notices delivered personally shall be deemed communicated as of the date of actual receipt, as confirmed by a written acknowledgment of receipt by the addressee or its agent. B. Notices given by pre-paid, confirmed air courier shall be deemed to be given upon the earlier to occur of the date upon which it is actually received by the addressee or the business day upon which delivery is made at such address, as confirmed by the air courier (or if the date of such confirmed delivery is not a business day, the next succeeding business day). C. Notices given by facsimile transmission ('FAX') shall be deemed to be given upon the date it is actually received by the addressee, as confirmed by a return FAX from the addressee or its agent acknowledging receipt. D. Notices given by e-mail shall be deemed to be given upon the date it is actually received by the addressee, as confirmed by a return e-mail from the addressee or its agent acknowledging receipt. 4.11.3 Either party may change its contact person and/or address for notices by means of written notice to the other party given in accordance with this Section 4.11. 4.11.3 Relationship Of The Parties. Each party is acting as an independent contractor and not as an agent, partner, joint venturer, or franchiser-franchisee with the other party for any purpose. Unless expressly provided by this Agreement, neither party shall have any right, power, or authority to act or to create any obligation, express or implied, on behalf of the other. 4.11.4 Remedies. Except as provided herein, the rights and remedies of the parties set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it, at law and/or in equity. 4.11.5 Severability. In the event any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law, and the other provisions of this Agreement will remain in full force and effect. The parties further agree that, in the event such provision is an essential part of this Agreement, they shall negotiate in good faith the terms and conditions of a replacement provision. 4.11.6 Waiver. None of the provisions of this Agreement shall be deemed to have been waived by any act and/or acquiescence by either party, and if any provision or provisions of this Agreement are waived it shall only be by an instrument in writing signed by authorized representatives of both Parties and which expressly refers to this Agreement and the provisions it is waiving. In such event, any such waiver or waivers shall not constitute a waiver of any other provisions of this Agreement or of the same provision or provisions on another occasion. IN WITNESS WHEREOF the parties have executed this Agreement by their duly authorized representatives to be effective as of the Effective Date. 'Licensee' 'Licensor' __________________________________ __________________________________ By: ______________________________ By: _______________________________ (Please Print) (Please Print) Title: ___________________________ Title: _____________________________ (Please Print) (Please Print) Signature: _________________________ Signature: __________________________ Date Signed: _______________________ Date Signed: ________________________ (Please Print) (Please Print) NOTE: SIGNED COPIES OF THIS AGREEMENT ARE ONLY REQUIRED IF REQUESTED BY EITHER THE LICENSEE OR THE LICENSOR. ANNEX A The 'Licensing Fees' 1. 'Licensing Fee.' Licensee shall pay Licensor total fees as outlined in invoice and within 45 days of date of invoice. In consideration thereof, Licensee shall be entitled to allow unlimited persons to use the Program to access one server. 2. All payments shall be sent to the following address: 1725 St. Laurent Blvd Suite 205 Ottawa, Ontario K1G3V4 Canada ATTN: John Tkaczewski 3. 'Maintenance and Support Services.' Unless Licensee specifically indicates otherwise at the time this License Agreement is executed, this License shall include on going optional 'Maintenance and Support Services are more fully described in Annex 'C'. Licensee may discontinue the Maintenance and Support Services at any time by giving Licensor no less than sixty (60) days written notice prior to the next anniversary date of the License Agreement indicating its intention not to renew the Maintenance and Support Services. ' The annual cost of Maintenance and Support Services will be 20% of the License Fee, unless agreed otherwise